By Lisa Keen
Not all U.S. Supreme Court rejections are bad news. And when the nation's highest court couldn't find four justices willing to hear the appeal of a gay servicemember challenging the military's "Don't Ask, Don't Tell" policy, most gay legal activists breathed a sigh of relief.
The Supreme Court on Monday, June 8, declined to hear the appeal in James Pietrangelo v. Gates. Pietrangelo filed the appeal and against the wishes of his fellow plaintiffs in the original case, Cook v. Gates. The 1st Circuit U.S. Court of Appeals ruled last year that the DADT policy was "an exercise of Congressional judgment in the area of military affairs" and warranted enormous deference from the judicial branch.
The relatively progressive circuit also ruled that the U.S. Supreme Court's 1996 ruling (in Romer v. Evans) against "laws based on animus" could not be used against the military policy because the policy, it said, was based on legitimate concerns, not animus.
Neither gay legal activists nor the twelve plaintiffs in the case agreed with the decision, but they decided against appealing it to the Supreme Court because they did not believe the court's composition at this time could render a favorable decision.
"You count the votes and we couldn't count five or six votes, so the plaintiffs made the difficult call" not to appeal, said Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network. SLDN mounted the original legal challenge.
"Too much is at risk to ask the court to hear this case," Sarvis added.
James Pietrangelo II, an Army Captain from Ohio who was dismissed under "Don't Ask, Don't Tell," disagreed with the assessment of the others and, on his own, filed an appeal to the Supreme Court.
President Obama's Solicitor General, Elena Kagan, filed a brief with the U.S. Supreme Court urging it not to hear Pietrangelo's appeal. But Kagan's brief said the 1st Circuit "properly upheld" the statute.
Long-time gay legal activist and law professor Nan Hunter said "there is a very strong institutional policy" at the Department of Justice for the Solicitor General to defend "every statute of the United States, and not to switch positions on the lawfulness of statutes when administrations change."
"That approach," said Hunter, "is integral to the culture of professional integrity that surrounds the (Solicitor General's) function."
But Hunter acknowledged "the rule is not absolute." The Solicitor General "commonly changes its position in various lawsuits [challenging the validity of a federal statute] when there is a change in administration," said Hunter.
"It is a good question as to what the precedents are for declining to defend a federal statute," said Hunter. "I don't know the answer."
The Department of Justice chose not to appeal a 9th Circuit U.S. Court of Appeals decision won by a woman who was ousted under "Don't Ask, Don't Tell." The 9th Circuit, in Witt v. Air Force, said the military would have to demonstrate compelling evidence that retention of Major Margaret Witt would cause harm to the military's unit cohesion. Witt was targeted for suspension after acknowledging a long-term relationship with a woman. Her case is back before the federal district court.
Hunter said the DOJ's decision not to appeal the 9th Circuit Witt decision was "the best outcome for LGBT advocates." In her blog, hunterforjustice.com, Hunter said, "It prevents the case from going now to the Supreme Court, which is a graveyard for challenges to military policies, and keeps the case alive in the lower courts, where it can be used to bring pressure on Congress to repeal DADT.
SLDN's Sarvis agreed.
"Again, can you count five or six votes on the (Supreme) Court?" asked Sarvis. "You have to consider (the Witt case) in the context of what's at risk and where the votes are," he said. "Today, I fear the votes are not there."
