Don't Ask; Don't Tell

Although we do not intend to turn this blog into a Gay Rights Forum, we are unwaveringly devoted to enforcing and protecting the human rights and constitutional rights of all, so it is important to point out the recent ruling regarding the “Don’t Ask; Don’t Tell” military policy of the federal government.

In Log Cabin Republicans v. The United States and the Secretary of Defense, here in the Central District of California’s U.S. District Court, Plaintiff Log Cabin Republicans attacks the constitutionality of the statute known as the “Don't Ask, Don't Tell” Act (“the Act” or “the Policy”), found at 10 U.S.C. § 654, and its implementing regulations. Plaintiff's challenge is two-fold: it contends the Act violates its members' rights to substantive due process guaranteed by the Fifth Amendment to the United States Constitution, and its members' rights of freedom of speech, association, and to petition the government, guaranteed by the First Amendment.

To remind all of the issue, the Act provides that any member of the U.S. Armed Forces who engages in homosexual conduct is subject to discharge unless the servicemember is able to demonstrate that he or she has no propensity to engage in “homosexual conduct.” Under the Act, homosexual conduct includes sexual acts with persons of the same sex, admissions that one is homosexual or bisexual, and attempts to marry a person of the same sex.

The “Don't Ask, Don't Tell” component is not expressly within the statute, but instead describes a prohibition on speech and association regarding one’s non-military reality, and the suit essentially urges that the homosexual reality is protected by the liberty clause of the Fifth Amendment [along the same lines discussed in the Prop. 8 ruling], and the implicit prohibition on talking about it or joining groups pertaining to it or petitioning the government to change the policy about it violates the First Amendment speech and association and redress of grievances clauses.

The defendants [U.S. Government and the defense secretary] presented no evidence in the trial, assuming that their “we are the government and we accordingly know best” arrogance would carry the day. The plaintiffs [Log Cabin Republicans] introduced a lot of evidence, by way of testimony and studies and expert opinions, and on the fundamental rights component of the attack, the Court, Judge Virginia A. Phillips, had little trouble siding with the plaintiffs [as is generally the case when the other side introduces nothing but subjective arrogance].

The Court found that the Don't Ask, Don't Tell Act infringes the fundamental rights of United States servicemembers in many ways, some described in the trial memorandum. The Act denies homosexuals serving in the Armed Forces the right to enjoy "intimate conduct" in their personal relationships. The Act denies them the right to speak about their loved ones while serving their country in uniform; it punishes them with discharge for writing a personal letter, in a foreign language, to a person of the same sex with whom they shared an intimate relationship before entering military service; it discharges them for including information in a personal communication from which an unauthorized reader might discern their homosexuality. In order to justify the encroachment on these rights, Defendants faced the burden at trial of showing the Don't Ask, Don't Tell Act was necessary to significantly further the Government's important interests in military readiness and unit cohesion. Defendants failed to meet that burden.

Thus, Plaintiff, on behalf of its members, was deemed entitled to judgment in its favor on the first claim in its First Amended Complaint for violation of the substantive due process rights guaranteed under the Fifth Amendment. That is, the Act is unconstitutional in that it violates the fundamental liberty interests protected by the Fifth Amendment. And then there is the First Amendment matter.

Recall the relevant portions of the First Amendment: “Congress shall make no law . . . abridging the freedom of speech, . . . or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” The Plaintiffs urged that the Act also violated those protections.

Is the Act concerning conduct, or concerning speech? Does the content of speech become regulated by, and punished by, government here?

The Act in subsection (b)(2) requires a servicemember's discharge if he or she "has stated that he or she is a homosexual or bisexual, or words to that effect . . . ." 10 U.S.C. § 654 (b)(2) (emphasis added). The Act does not prohibit servicemembers from discussing their sexuality in general, nor does it prohibit all servicemembers from disclosing their sexual orientation. Heterosexual members are free to state their sexual orientation, "or words to that effect," while gay and lesbian members of the military are not. Thus, on its face, the Act discriminates based on the content of the speech being regulated. It distinguishes between speech regarding sexual orientation, and inevitably, family relationships and daily activities, by and about gay and lesbian servicemembers, which is banned, and speech on those subjects by and about heterosexual servicemembers, which is permitted.

The First Amendment's hostility to content-based regulation extends not only to restrictions on particular viewpoints, but also to prohibition of public discussion of an entire topic. As a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.

The Court discussed the technicality between such standards in non-military settings and military settings [the latter allowing somewhat more regulation than the former]

In keeping with a well-established rule of deference, regulations of speech in a military context will survive Constitutional scrutiny if they “restrict speech no more than is reasonably necessary to protect the substantial government interest.” Without attending to the technicalities of the well-thought out discussion, the Court found that the Act fails this test of constitutional validity. Unlike the regulations on speech upheld in other settings, the Court found that the sweeping reach of the restrictions on speech in the Don't Ask, Don't Tell Act is far broader than is reasonably necessary to protect the substantial government interest at stake here.

The Act's restrictions on speech not only are broader than reasonably necessary to protect the Government's substantial interests, but also actually serve to impede military readiness and unit cohesion rather than further these goals.

Many of the lay witnesses also spoke of the chilling effect the Act had on their ability to bring violations of military policy or codes of conduct to the attention of the proper authorities. An eighteen year old, stationed in Bahrain, felt restrained from complaining about the extreme harassment and hazing he suffered because he feared that he would be targeted for investigation under the Act if he did so.

The Act prevents servicemembers from openly joining organizations, such as the plaintiff in this lawsuit, that seek to change the military's policy on gay and lesbian servicemembers; in other words, it prevents them from petitioning the Government for redress of grievances.

Furthermore, the Act punishes servicemembers with discharge for writing a private letter, in a foreign language, to a person of the same sex with whom they shared an intimate relationship before volunteering for military service. It subjects them to discharge for writing private e-mail messages, in a manner otherwise approved, to friends or family members, if those communications might lead the (unauthorized) reader to discern the writer's sexual orientation.

These consequences demonstrate that the Act's restrictions on speech are broader than reasonably necessary to protect the Government's interest.

Moreover, the Act's restrictions on speech lead to the discharge of servicemembers with qualifications in critically-needed occupations, such as foreign language fluency and information technology. The net effect of these discharges, as revealed not only in the testimony of the lay witnesses but also of the experts who testified and Defendants' own admissions regarding the numbers of servicemembers discharged and the costs of recruiting and maintaining an all-volunteer military force, compel the conclusion that the Act restricts speech more than reasonably necessary to protect the Government's interests.

And for all of those reasons, the Act was held to be unconstitutional in violation of the speech and petition clauses of the First Amendment.

Anyone interested should read about the credentials and accomplishments of the people who were punished under the Act; the testimony is sad and chilling.

One would hope, with all of the blather on the blogs and by the pundits about the Constitution these days, that people start to come around to understand that there is a realm of fundamental elements of human dignity that are supposed to distinguish us from the orangutan, and very often that distinction finds its voice, and its enforcement, in constitutional rights.

This is an excellent decision because of, if, for no other reason, its well-elucidated lessons about what our Constitution is all about. Or supposed to be about. It is also excellent, though, because of the human beings who got their day in Court, with a judge who understood, cared, and has courage to do the constitutional thing.

capmotion

http://www.kennedyroelaw.com