Boston Judge Rejects "Don't Ask Don't Tell" Challenge

A federal judge in Boston ruled on April 24 that the Supreme Court’s 2003 sodomy law decision, Lawrence v. Texas, does not affect the legal analysis of the Defense Department’s "Don’t Ask, Don’t Tell" military policy. Following the lead of several federal decisions from the 1990s, District Judge George A. O’Toole, Jr., granted the government’s motion to dismiss in Cook v. Rumsfeld, a case brought by the Servicemembers Legal Defense Network (SLDN) on behalf of a dozen lesbian or gay former military members who were discharged under the policy.

The closest gay litigation groups have come to overturning the policy, which was enacted by Congress in 1993 in reaction to President Bill Clinton’s initial suggestion to allow gay people to serve openly in the military, was a ruling by the late Eugene Nickerson, a liberal Democrat who served as a federal district judge in Brooklyn, but Judge Nickerson’s ruling, in Able v. U.S., a test case jointly brought by the ACLU and Lambda Legal, was overturned by the Second Circuit Court of Appeals in Manhattan in 1998.  See 155 F.3d 628.

In granting the government’s motion to dismiss the new case, Judge O’Toole rejected the plaintiffs’ claims that the policy violates the 5^th Amendment’s guarantees of due process and equal protection of the law, and the 1^st Amendment’s guarantee of freedom of speech. Granting a pretrial motion to dismiss means that the judge concluded that these claims had no merit as a matter of law, regardless of what could be shown at trial about how specious the policy is in connection with Congress’s articulated goal of maintaining good morale, order and unit cohesion in the armed forces. O’Toole commented that his ruling said nothing about the wisdom of the policy, as that was a question for the political branches of government.

The Clinton Administration and congressional leaders touted the "Don’t Ask, Don’t Tell" policy as a "compromise" under which gay people could serve so long as they said or did nothing that might cause anybody to know that they were gay. This was a change from the policy established by the Defense Department in 1980 in response to adverse federal court rulings in the cases of Leonard Matlovitch (Army) and Vernon Berg (Navy). The adverse rulings, interpreting a policy that prevailed during the 1970s, questioned why commanders had not exercised their discretion to retain in the service such exemplary officers as Matlovitch and Berg. The 1980 policy eliminated such discretion, making discharge mandatory.

Discharges for "homosexuality" increased under the "don’t ask, don’t tell" policy, and didn’t decline until the Bush Administration’s Middle Eastern wars escalated military staffing needs. As in past conflicts, wartime needs have a way of trumping wasteful personnel policies, resulting in the so-called "stop loss" rules that retain needed service members who are subject to discharge. But the "stop loss" rules seem not to have been applied in the case of numerous gay students at military language schools who were specializing in Middle Eastern languages, provoking significant adverse press comment, and leading to the introduction of legislation in Congress to repeal the policy. But Republican congressional leaders and the White House have shown no interest in backing the legislation.

After losing the big test case in the 2^nd Circuit in 1998, the LGBT public interest firms backed off from challenges to the military policy, but the Supreme Court’s ruling in Lawrence v. Texas raised hopes that new challenges might be successful. In Lawrence, the Supreme Court found that the Texas Homosexual Conduct Law unconstitutionally abridged individual liberty without any legitimate justification. The big question for lower federal courts interpreting and applying the Lawrence ruling is whether it significantly changed the legal calculus for future gay rights cases.

The most important part of Judge O’Toole’s opinion is his attempt to make sense of the Lawrence ruling and to figure out whether it would require imposing a more demanding level of judicial review than was used in the 1990s decisions. Taking the lead from a series of disappointing cases in which lower federal courts and some state courts have minimized the significance of Lawrence, O’Toole found that the Court had struck down the Texas law using the least demanding standard for judicial review, the rational basis test, and that this was the appropriate test for evaluating the plaintiffs’ due process and equal protection claims.

Once that decision was made, O’Toole’s conclusion followed logically – that nothing had happened since those 1990s cases to justify a different result. Congress undertook a "deliberative" process in 1993, involving committee hearings in both houses, testimony by military leaders that allowing gay people to serve would be terrible for the military, and passage of the resulting bill by overwhelming margins. The rational basis test asks merely whether members of Congress could rationally have believed, based on the knowledge available to them, that excluding openly gay people from the military would advance the goals of high morale, discipline and order, and unit cohesion. O’Toole found no basis to question the statute in light of the legislative record.

The First Amendment argument, that the policy imposes adverse consequences on speech, has also been made and rejected by federal courts many times before, and as to this argument O’Toole found that Lawrence had no potential significance.

Although O’Toole’s view of Lawrence is shared by many other federal judges, it is by no means undisputed, especially among legal scholars, and since the First Circuit Court of Appeals, based in Boston, has not previously address the question, it is possible that this ruling will be appealed after SLDN has had an opportunity to consult its clients and study the opinion.

The plaintiffs had argued that the Lawrence opinion should be construed to impose a more demanding level of judicial review, under which the court should look into whether the compelling interest that Congress sought to protect – maintaining a strong national defense through well-ordered, cohesive, high-morale military forces – could only be achieved by this policy. Even if a court were to embrace this more demanding standard, there would be no guarantee of ultimately winning the case, because the Supreme Court has frequently endorsed a very deferential approach to evaluating military policy, but at least the plaintiffs would be able to attack the gross mythology that underlies the adoption of this policy, and that is disproved every day as U.S. troops operate side-by-side with European allies who allow openly gay people to serve.

Comments

[Art Leonard]

The opinion showed up on Westlaw this morning: 2006 WL 1071131. SLDN's cooperating pro bono attorneys on the case are from Wilmer Cutler Pickering Hale & Dorr, DC and Boston offices.