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By Bob Roehr and AP WIRE
BOSTON – Only Congress can undo the military’s “Don’t Ask, Don’t Tell” policy on gay service members, a prosecutor argued July 8 in urging a federal judge to dismiss Cook v. Rumsfeld, a legal challenge to the antigay military policy.
Last December, a dozen former soldiers dismissed from the military for being gay sued, saying the 12-year-old policy is discriminatory.
The legal wrangling played out in a Boston courtroom for an hour and a half before federal Judge George A. O’Toole Jr. Friday. He did not issue a ruling on the matter and gave no indication when he might. Regardless of the outcome, it is likely that one party or the other will be dissatisfied and a series of appeals to higher courts appears inevitable.
Assistant U.S. Attorney Mark T. Quinlivan recited a list of circuit court decisions on gays in the military, “all of which concluded that the earlier military policy regarding homosexual conduct survived the very same constitutional challenges raised by the plaintiffs here today.” He argued that nothing has changed since then and the case should be dismissed.
He minimized the importance of the 2003 Supreme Court’s Lawrence v. Texas decision, which threw out state sodomy laws, because “it did not alter the standard of review” when addressing the class of persons known as homosexuals. Furthermore, he argued that Lawrence did not apply within “the unique circumstances of military life.”
Quinlivan said any changes must come from Congress, not the courts. He said “Don’t Ask, Don’t Tell”, passed in a bipartisan vote in 1993, was debated extensively before being
approved by Congress and signed by President Clinton.
Back in 1993 Congress found that excluding openly gay Americans from serving in the military was necessary to preserve unit cohesion. Quinlivan said the court should defer to their findings. He noted that a bill has been introduced in Congress to repeal the policy and that is the proper forum to address such changes.
“To say the case should be dismissed is not to say the debate on Congressional policy ends,” Quinlivan said, noting there is pending legislation to repeal the law. “It is only to say it
should be returned to the branch of government where it should be appropriately decided.”
Constitutional rights issue
But a lawyer for the 12 former service members said the deference courts traditionally give lawmakers on military matters isn’t required when constitutional rights are being violated.
“Don’t Ask, Don’t Tell” denies gay service members their rights to privacy, free speech and equal protection under the law, attorney Stuart Delery said.
Delery, arguing for the plaintiffs, said that none of the other cases cited were dismissed but were allowed to develop a factual record through either trial or summary judgment. The precedent from the First Circuit is “that it’s error to dismiss a constitutional claim of this type without resort to development of a factual record.”
He charged that the government’s arguments of deference to Congress and the military “would require the court to abdicate its own constitutional responsibility with respect to these constitutional claims and, improperly, to resolve factual questions on a motion to dismiss.”
Delery said that gays and lesbians have served in the military and their colleagues have known that they were gay, and there have been none of the problems of unit cohesion asserted by Congress. “The only explanation for the policy’s reach and substance is animus of some form toward gay and lesbian service members.
He said all of the previous decisions relied upon the 1986 Supreme Court decision Bowers v. Hardwick, which allowed state sodomy laws against same-sex activity. However that was explicitly overturned by the Lawrence decision in 2003. Furthermore, the application of the Lawrence decision has been affirmed by the military’s own appellate court.
In a conversation later that day, C. Dixon Osburn, executive director of the Servicemembers Legal Defense Network, said, “All of those cases [affirming the gay ban] relied either explicitly or implicitly on Bowers v. Hardwick and that was overturned. It raises the question of whether those cases continue to be good law.”
Should the case move forward, Osburn said they would like to learn several things through the discovery process. One is to identify who has made the anonymous statements that have periodically emanated from the Pentagon that some in the military are willing to reexamine the policy.
Another would be to pry out any data substantiating the government’s claim that the policy is necessary for unit cohesion. SLDN contends that there is none. Finally, SLDN would like to enter into the record statements from allied nations who do allow gays to serve openly in their militaries.