Gay activists are determined to repeal the 1993 law regarding homosexuals in the military, which is always mislabeled “Don’t Ask, Don’t Tell.”  They want to do this even if they have to misuse the federal courts to make an end-run around Congress.  

Consider the Log Cabin “Republican” (LCR) case, which is challenging the constitutionality of the 1993 law.  The controversial case, which began in 2004, initially was dismissed because the gay activist group could not prove that the law had caused harm for any of its members.  A federal judge dismissed the case for lack of “standing” to sue, but early in 2010, a U.S. District Court in San Diego, CA, revived the case.  

This time the group presented two plaintiffs described as members of the LCR: John Alexander Nicholson and “John Doe,” an anonymous homosexual man who fears discharge from the military under “Don’t Ask, Don’t Tell.”  The case was assigned to District Judge Virginia Phillips, a Clinton appointee. 

The initial 30-page Department of Justice (DoJ) Motion for Summary Judgment, filed on March 29, 2010, did a good job challenging basic premises of the Log Cabin case, including the threshold issue of standing to sue.  Citing legal requirements, the brief noted that Plaintiff Nicholson had not been a member of the Log Cabin group until the time he was named as a plaintiff.  As an “honorary” member, Nicholson was not qualified to sue.  

LCR described the other plaintiff, anonymous “John Doe,” as an active-duty member of the military.  By definition, however, “John Doe” has not been negatively affected by the law.  The LCRs lack of standing to sue with either plaintiff entitled the government to summary judgment on that basis alone.

The Justice Department brief further maintained that a) Congress had the power to pass the law in question, and b) Congress had a “rational basis” for doing so.  This is the compelling constitutional argument, which the Supreme Court likely will uphold when or if the case is appealed to that level. 

Judge Phillips denied the motion for summary judgment, and conducted her no-jury, one-sided hearings as a challenge to the law “on its face.”  This “facial” challenge carried the highest burden of proof since, as the DoJ brief noted, “The Supreme Court has held that the rational basis text ‘is not subject to courtroom fact-finding,’” and rational basis review “is not a license for courts to judge the wisdom, fairness, or logic of legislative choices.’”

Article 1, Section 8, of the U.S. Constitution clearly states that only Congress has the power to “Make rules for the Government and Regulation of the land and naval Forces.”   Federal courts do not have the power to write laws or to second-guess Congress. 

Relying on those principles, the Justice Department did not present witnesses to counter those for the other side—some of whom had testified before Congress in 1993 but had failed to get their way.  The Justice Department brief cited the purpose and findings of the 1993 law, Section 654, Title 10, U.S.C., and noted that “Congress concluded that the policy was necessary to ensure privacy, reduce sexual tension, and, ultimately to maintain unit cohesion and military preparedness.” 

Depositions Reveal Discrediting Admissions 

The DoJ brief also highlighted a few of the admissions made by “experts” for the Log Cabin Republicans during depositions.  Dr. Nathaniel Frank of the gay activist Michael D. Palm Center, for example, “acknowledged that privacy concerns such as those on which Congress relied upon were not irrational.”  Dr. Aaron Belkin, also of the Palm Center, acknowledged that “the privacy basis is rational in circumstances such as combat where private accommodations are not possible.”

The DoJ brief disposed of the LCR claim that the 1993 law violates First Amendment rights of free speech and Fifth Amendment rights of due process.  A statement indicating that a person is homosexual is considered evidence of homosexual conduct and therefore ineligible for military service.  It is not a violation of free speech or rights of due process. 

The “Supreme Judicial Commander the U.S. Military” 

On September 9 Judge Phillips issued her decision declaring the law unconstitutional, having heard eight days of one-sided testimony.  In contrast, Congress conducted 12 legislative hearings and field trips, followed by hours of adversarial debate that resulted in the current law, Section 654, Title 10, U.S.C.

Nevertheless, on October 12, Phillips issued a radical, worldwide injunction stopping enforcement of the 1993 law.  Her order swept aside statutory language in Finding #2: “There is no constitutional right to serve in the military.”  She also disregarded Article 1, Section 8 of the U.S. Constitution and Supreme Court precedents affirming deference of the judiciary to the other two branches of government on matters affecting the military.  The San Diego jurist, who was immediately lauded in liberal media, proved once again that the judiciary is the branch of government least qualified to make policy for the military.  

The Justice Department brief asking for an immediate stay of Phillips’ sweeping mandate correctly noted that since the Log Cabin case was limited to the group’s members only, a worldwide injunction suspending enforcement of a duly-enacted law could not be justified.  They also tried to impress the judge by repeating several times that President Barack Obama wants to repeal the 1993 law.  

This line of argument was deeply flawed.  The president’s opinions (and political campaign promises) are irrelevant in this legal controversy.  (A less ideological judge would have been amused by the Justice Department’s inclusion of President Obama’s interview with Rolling Stone magazine as one of their exhibits.)

Effectively appointing herself “Supreme Judicial Commander of the U.S. Military,” Judge Phillips denied the government’s urgent request for an immediate stay on October 19.  The Justice Department appealed immediately to the U.S. Court of Appeals for the Ninth Circuit.  On October 20 a three-judge panel received the DoJ’s petition and issued a temporary stay pending a response from the LCR attorneys, which arrived accompanied by four amicus briefs from other gay activist groups on October 25. 

Lawrence v. Texas: Not a Reason to Strike the Law 

Many of the assertions and legal arguments in the LCR and accompanying briefs do not hold up, and will be contradicted in due course.  For example, the LCR brief demanding that the stay be lifted claimed that their case was active for six years, during which time the government had “multiple opportunities” to present “evidence." 

On the contrary, as explained above, the LCR case was dismissed on the threshold issue of the LCR’s standing to sue in 2004.  Six years later, the revived case still has unresolved questions regarding standing to sue, which are sufficient in themselves to justify reversal.  

Furthermore, the Supreme Court’s ruling in the Lawrence v. Texas case, which declared state laws regarding sodomy to be unconstitutional, has no relevance to the constitutionality of Section 654, Title 10, U.S.C.  Lawrence held that states could not impose criminal punishment for private consensual homosexual acts between consenting adults.

As clearly stated in the Senate Report accompanying passage, the law was not based on Bowers v. Hardwick, the Supreme Court precedent that Lawrence overturned.  (See p. 287 of the 1993 Senate Report.) 

Bowers and Lawrence were criminal cases.  They did not deal with administrative actions or eligibility for service like Section 654, the law stating that homosexuals are not eligible to serve in the military. 

The Ninth Circuit likely will extend the temporary stay, allowing time for an appeal of the underlying case.  The timetable for filing appeal and amicus briefs in support of the law is not yet known, but events are likely to move swiftly.   

The Margaret Witt Case 

Meanwhile, on September 24, District Judge Ronald B. Leighton ruled that Maj. Margaret Witt, a former Air Force Reserve nurse who had been discharged due to homosexual conduct, should be reinstated.  

This was the second time that the Tacoma, Washington, District Court heard the Witt case, due to a controversial order of the Ninth Circuit Court of Appeals in 2008.  In that ruling, the Ninth Circuit imposed a “heightened” standard of review that was not justified by the law, instead of using the “rational basis” standard that should have applied.  This meant that the government would have to prove that Maj. Witt, as an individual, was causing disruption in her own unit.  

All of the lawyers at the Department of Defense acknowledged that the Ninth Circuit’s “heightened” standard of review was wrong, but then-Solicitor General Elena Kagan, now a Supreme Court Justice, failed to petition for Supreme Court review of the procedural ruling.  As explained by Ed Whelan, President of the Ethics & Public Policy Center, Kagan’s failure to do her duty created an untenable situation that could have been avoided:

The Public Discourse:  Don’t Defend, Don’t Tell

           Unlike the Log Cabin case, which challenged the law “on its face,” the Witt case challenged the law “as applied” to Maj. Witt.  Judge Phillips confused the “facial” and “as applied” standards, issuing a ruling that cannot be justified under either approach.

The Department of Defense has 60 days to decide whether to appeal the Witt case and unjustified standard of review that made it possible.  Defending the law will require an appeal to the same California-based Ninth Circuit Court of Appeals that will hear the Log Cabin case. 

Will Activist Judges Rule Our Military? 

Issues in the executive and judicial branches of government are important, but the primary focus of attention should be the U.S. Senate.  If Congress repeals the law, all legal issues will become moot.  This means that the Judge Phillips’ sweeping worldwide injunction will stand as precedent.   

Imagine the turmoil that could ensue if the Department of Defense is required to take orders from federal judges on any issue.  A liberal judge could order the Defense Department to uphold the “rights” of military plaintiffs who object to uniform requirements, inconvenient deployments, personal conduct rules in the Uniform Code of Military Justice (UCMJ), or anything else.  Such a situation would make all military issues subject to court review—a recipe for chaos.  

The Justice Department brief in the Log Cabin case confirmed that the pending legislative “Repeal Deal,” authorizing “delayed implementation” of a new LGBT (lesbian, gay, bisexual, transgender) law for our military, is a sham.  The repeal supposedly would take effect only after a triumvirate of officials─President Obama, Defense Secretary Gates, and Joint Chiefs Chairman Adm. Mike Mullen──“certify” that no harm would come to our military.

But these officials already are on record in support of repeal.  In its court filings in the Log Cabin case, the Justice Department betrayed the Obama Administration’s arrogant expectation that repeal of the law is certain.  The president, in effect, wants to cut Congress out of the picture.  

Regardless of the issue, the most important question is Who gets to decide?  Our constitutional system balancing power between the three branches of government is in peril—just because Obama is determined to deliver on his campaign promise to LGBT activists.  This is yet another reason why the 2011 National Defense Authorization Act must not be passed in the lame-duck session.   

The principle of judicial deference to the other two branches of government is very much at risk, and the issue goes far beyond gays in the military.  Congress must consider and preserve our government’s separation of powers and the integrity of our Constitution.  

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