Don’t Ask, Don’t Tell = Can’t Recruit, Can’t Retain

Yesterday, we discussed some of the evidence presented at trial in Log Cabin Republicans v. United States of America et al., a case heard in the United States District Court Central District of California by Judge Virginia A. Phillips. Today, we continue with the court’s analysis and conclusion.

Analysis of Evidence and Findings of Fact

Based on the evidence presented, the Court found the following negative impacts from DADT:

Discharge of qualified servicemembers despite troop shortages

From 1993-2009, the Government discharged 7,856 servicemembers under the Act. Troop shortages in the midst of two wars are a pressing issue for the Armed Forces.

Discharge of servicemembers with critically needed skills and training

According to the Government’s own data, many of those discharged pursuant to the Act had education, training, or specialization in so-called “critical skills,” including Arabic, Chinese, Farsi, or Korean language fluency, military intelligence, counter-terrorism, weapons development and medicine. Thus, the DADT policy decreased military readiness.

The Act’s impact on military recruiting

The Court found that military recruiting was very expensive and increasingly difficult after 2001. DADT impacted recruiting by discouraging gay individuals from applying and reduced access to students who attended universities that prohibited military recruiting because the Act violated their nondiscrimination policies.

Admission of lesser qualified enlistees

The Court found that the military has been forced to grant more “moral waivers,” admitting felons and those convicted of misdemeanors to supplement the troop shortage. Dismissing those who are qualified just because of their sexuality and replacing them with less qualified personnel “simply does not make any sense.”

Decrease and delayed discharge of suspected violators of the Act

The Court found that the military was waiting until after the suspected gay servicemember finished his or her overseas assignment before discharging them under the Act, which directly undermines the Defendant’s position that Act furthers military readiness. If the servicemembers presented a serious threat to unit cohesion or military readiness, the Government would not deploy them to fight in a war and deal with the issue when they came back.

The Act is not necessary to advance the Government’s Interests

The Court cited several key political figures who have spoken out against the policy, including President Obama and Admiral Mike Mullen (@thejointstaff), the Chairman of the Joint Chiefs of Staff. Interestingly, Adm. Mullen’s statement of support came in the form of a Tweet: “Stand by what I said: Allowing homosexuals to serve openly is the right thing to do. Comes down to integrity.” [Ed: 108 characters, nice work Admiral!]

The Act is not necessary to protect unit cohesion and privacy

The Court noted that General Powell, who initially argued that serving alongside openly homosexual servicemembers would impact the privacy of heterosexual servicemen and women, has since reversed his position. It cited former servicemember testimony about military housing and living conditions to find that in most situations, troops have adequate privacy in their living space to avoid this concern.

In fact, the Court found that requiring gay servicemembers to keep their lives and sexuality so private actually disturbed unit cohesion. Former personnel testified that after coming out, they actually had a better relationship with their peers and superiors, since they were no longer seen as aloof or overly private. They also testified that unit cohesion and morale suffered at the loss of a well-respected and qualified leader.

The Act infringes on fundamental rights of gay servicemembers

The Court found that the Act interferes with servicemember rights to enjoy “intimate conduct” in their personal relationships,  to speak about their loved ones, and to talk openly with their fellow servicemembers, among others. The Act also produces a chilling effect on servicemembers’ ability to report violations and abuses, and interferes with their ability to join organizations that may reveal their sexual orientation.

The Court found that “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.” (187)

Conclusions of Law

Plaintiff’s Facial Challenge

Citing Washington Grange v. Washington State Republican Party (552 U.S. 442 (2008)), the Court applied the following test: “a facial challenge must fail where the statute has a ‘plainly legitimate sweep.'” Then, the Court found the Act to be overreaching, and outside of the ‘plainly legitimate sweep’ as it restricted activities such as private correspondence and conversations between servicemembers about off-duty activities, and prevented servicemembers from reporting violations of military ethics and rules.

Defendants argued that because the Plaintiffs challenged the statute on its face, rather than as applied, the Court should only consider the bare legislative history (citing US v. O’Brien 391 U.S. 367 (1968) , the “draft card burning case”). The Court found, however, that because the challenge includes substantive due process as well as First Amendment grounds, the admitted evidence was properly considered (citing Lawrence v. Texas 539 U.S. 558 (2003)).

Plaintiff’s Due Process Challenge

The Court applied strict scrutiny to interpret the Act, finding that it implicated a fundamental right–“the autonomy of self that includes freedom of thought, belief, expression and certain intimate conduct” under Lawrence. (Id. at 562). The Court looked at the Act to determine if it advanced an important governmental interest, the intrusion significantly furthered that interest, and whether the intrusion was necessary to further that interest.

The Act survived the first prong of the test, but failed the second and third. The government, relying solely on the legislative history of the Act, failed to meet its burden to prove that the intrusion upon Plaintiff’s rights “significantly furthered” the interest in military readiness or unit cohesion, based on the evidence. In fact, the Court found that the Act was actually detrimental to the government’s interest in that regard. Similarly, the Act failed scrutiny under the third prong of the test, as it is was not necessary to further the government’s interest in military readiness and unit cohesion.

Plaintiff’s First Amendment Challenge

The Court found that Don’t Ask Don’t Tell restricted content-based speech, and applied strict scrutiny to review the Act. Defendants had the burden of proving that the regulation was necessary to serve a compelling state interest, and narrowly drawn to achieve that end.  The Court used Lawrence, which implicated “expression” in its description of substantive due process (Id.), and cited the proposition that “Plainly, a limitation on speech in support of an unconstitutional objective cannot be sustained.” (Able v. United States, 88 F.3d 1280, 1300 (2d Cir. 1996)). The Act itself requires 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). The Court held that on its face, then, the Act “discriminates based on the content of the speech being regulated.” (73)

Defendants sought greater deference to the military, since its rules are traditionally and often necessarily more restrictive than in civilian life. The Court, however, found that strict scrutiny was also applied in military cases involving content-based speech restrictions, and the Act failed to survive this analysis. “The sweeping reach of the restrictions on speech in the Don’t Ask, Don’t Tell Act,” it wrote, “is far broader than is reasonably necessary to protect the substantial government interest at stake here.”

Now What?

The Department of Justice has 60 days to appeal the ruling, and they have already asked the Court to stay the injunction pending the appeal. Personally, I am surprised that President Obama, who has vowed that Don’t Ask, Don’t Tell will “end on my watch” doesn’t pressure the DOJ to let the order stand. As the NY Times reports, Defense Secretary Robert M. Gates and Admiral Mike Mullen, the chairman of the Joint Chiefs of Staff,  have already called on Congress this year to allow gay men and lesbians to serve openly. Letting the Court decision stand seems like a politically expedient way to get the matter resolved, despite everyone’s  professed preference to have the policy ended as it started–in Congress.  Given recent Republican efforts, however, that seems unlikely, and many expect a Republican influx in the coming midterm elections.

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  • Ken Chan

    I cannot believe that the Secretary of Defense is deferring to Congress the decision to end “Don’t Ask, Don’t Tell.” 10 U.S.C. 654(e) states that “Nothing in subsection(b) shall be construed to require that a member of the armed forces be processed for separation from the armed forces when a determination is made in accordance with regulations prescribed by the Secretary of Defense that … separation of the member would not be in the best interest of the armed forces.”

    That sounds like a pretty significant qualifier to me that specifically names the Secretary of Defense. So, if Secretary Gates really has any doubts over “Don’t Ask, Don’t Tell,” don’t separate the service member without an individual determination on whether the proposed separation is in the best interest of the armed forces.

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