After "Don't ask, don't tell" (DADT) is repealed on September 20, it would be difficult for any future administration to reverse the change. Most of the country supports allowing gay men and lesbians to serve openly, including a majority of Republicans, and it will be operationally and politically challenging to roll back the clocks.
That said, it's legally possible, and presidential candidate Michele Bachmann's stated intent to re-instate the military's ban is therefore of some concern. Although some activists are calling on President Obama to sign an executive order forcing the Pentagon to treat gay and lesbian troops equally, the institution that's best positioned to lock repeal into place is the federal courts.
There were always two ways to end "don't ask, don't tell" (DADT). Congress could repeal the law, or the courts could find it unconstitutional. During the past year, both options have moved forward in tandem, with Congress pursuing repeal legislation as the federal courts entertained a case, Log Cabin Republicans v. Panetta, that questions its constitutionality.
After a lower court ruled in September, 2010 that DADT is unconstitutional, it appeared as if the judicial branch might terminate the policy before the politicians got around to it. But now that the military, Department of Defense, and President have certified that the armed forces can live without DADT, the converse may be true, and the Justice Department is pressuring the federal courts to dismiss Log Cabin as moot. That would be a mistake and a lost opportunity, because a favorable decision in the case is still needed to protect the welfare of the troops, and because there's even more at stake than that.
The administration argues that repeal will resolve the plaintiffs' concerns, and so the entire case should be wiped from the record as though it never happened, including evidence at trial and the district court's conclusion that DADT is unconstitutional. When a challenged law is repealed, courts sometimes strike all proceedings because there is no longer any active controversy between the parties. The case becomes moot, and subject to dismissal, if it lacks any practical significance.
Log Cabin, however, is not the usual case in which a constitutionally offensive statute is repealed and the plaintiff is completely protected. Congress's DADT Repeal Act does nothing to ensure equal treatment of gay and lesbian troops. All it does is repeal the congressional version of DADT and return total discretion to the executive branch to decide what to do--the way it was handled before DADT.
As a result, even after repeal, there is no guarantee that gay service members will be treated in a way that respects the Constitution. Until that question is definitely resolved, Log Cabin should not be dismissed as moot. It is especially misguided to argue the controversy is over given that the House has already passed defense bills with provisions designed to obstruct repeal and Republican presidential candidates vow to bring DADT back.
And there's even more at stake in Log Cabin than the rights of gay and lesbian troops. At a fundamental level, the case is about whether or not the military is subject to judicial oversight. In its latest Log Cabin appeal, the Justice Department announced a military exception to the arguments it has made in other cases about sexual-orientation discrimination. For civilians, it argues, courts should closely review discriminatory laws using heightened scrutiny, but for members of the military, courts should defer to the judgment of others and stay out of it. It's called "judicial deference" to military judgment, and it's become the centerpiece of the administration's approach to military equality. The administration is defending the military's freedom from judicial oversight more than it is defending DADT.
There's a good chance that if it continues to hear the case, the Ninth Circuit Court of Appeals would disagree with the idea that the Constitution means something less in a military context. But if the administration can convince the court that Log Cabin is moot, there will be no ruling on the merits. If it is also successful in striking the district court's decision, it will eliminate any official record that DADT was found unconstitutional.
The Ninth Circuit should take Log Cabin to its conclusion. Even if it sidelines the appeal, it should not take the district court opinion off the books. Log Cabin was the first case in which a court invited evidence on the justification for DADT. The government was unable to produce any, and that was why it lost the case. It is important to preserve the outcome of this trial as a reminder to future Congresses and Presidents that the military is not a Constitution-free zone.
Log Cabin establishes principles that must be defended whether or not DADT disappears. It sets a standard of fair treatment for those serving in uniform. It reminds government there are limits to intrusions on personal liberty. Finally, it affirms that the military is part of our constitutional community, and that service members and civilians alike are deserving of judicial protection.
The Palm Center filed an amicus brief in Log Cabin explaining the proper role for judicial review in a military context.
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