Karen Ocamb

LCR Will Seek Equal Protection for LGBT Servicemembers

Filed By Karen Ocamb | February 17, 2011 12:00 PM | comments

Filed in: Politics
Tags: Dan Woods, Don't Ask Don't Tell, eQualityGiving, LGBT

Much of Monday's eQualityGiving.org-sponsored conference call on Don't Ask, Don't TellDan Woods repeal focused on the issue of why and how the non-discrimination provision was taken out of the original DADT repeal bill. The consensus answer was that it was done for pragmatic reasons to get the Repeal Act passed in the lame duck Congress.

Also on the call was Dan Woods, partner in White & Case, the law firm representing the Log Cabin Republicans in their federal challenge to the constitutionality of DADT, Log Cabin Republicans v the United States. Woods said the LCR case continues to be important in keeping pressure on the government to repeal DADT and noted how the Justice Department is at odds with the position held by both the White House and the Defense Department. The DOJ is expected to file their brief on the constitutionality of Don't Ask, Don't Tell next week, on Feb. 25. "We're going to be very interested in seeing how the government is going to argue that Don't Ask, Don't' Tell is and was constitutional," Woods said.

Woods said the LCR lawsuit will continue after repeal is complete since there is always the possibility DADT could be re-enacted. He also addressed the question of non-discrimination for gays in the military, including gays as a "protected class" under the Equal Protection Clause of the US Constitution:

"The one claim in our lawsuit that we did not win was a claim for a violation of the Equal Protection Clause in the Constitution. The judge dismissed that claim in our case early on, based on existing 9th Circuit precedent. We are, on behalf of Log Cabin, appealing that ruling and trying to obtain a change in the law so that this would be considered a protected class of individuals, protected by the Equal Protection Clause."

eQualityGiving.org has the entire audio of the call posted online, including a section on transgender rights. (Please excuse the occasional disjointedness as co-moderator Tom Carpenter and I experienced some technical difficulties on our end). Please click insider for the segment featuring Dan Woods, plus some clarification he sent me after the call.

Tom Carpenter asked if Woods felt the LCR lawsuit impacted the legislative process. Woods noted that Judge Virginia Phillips in Riverside ruled that DADT was unconstitutional and ordered an immediate and worldwide injunction against its enforcement, which put pressure on Congress to make the repeal happen as soon as possible.

Woods said:

“We constantly heard [Defense] Sec. Gates, for example, saying he wanted Congress to allow the military to implement repeal, rather than being ordered to do so by a court. And we all know what court he was talking about. So that was certainly true.

It also gave our client in the case, the Log Cabin Republicans, much greater visibility and the President asked the Log Cabin executive director to get him Republicans votes for repeal, both in the senate and the house. And Log Cabin did manage to secure some votes for repeal and some abstentions that helped ensure the passage of legislation.

What's important today is that our lawsuit is still going on because certification is iffy - no one knows when the certification will take place. In the meantime, the government is still free to apply and enforce Don't Ask, Don't Tell. The government is still free to investigate and discharge people. And while it is doing so in smaller numbers, it still has the right to do that and as far as we know, is still doing that.

In our lawsuit, which is now on appeal, the government asked the 9th Circuit Court of Appeals to stay the process of the appeal because the certification process and the repeal would become effective soon. We opposed that but said we would be agreeable to it if the government would simply agree to stop any discharges, pending that process. And the government refused.

So the government in our lawsuit has continued to assert the right to discharge servicemembers under Don't Ask, Don't Tell. Fortunately, we were able to win that motion in the Court of Appeals on Jan. 28. And the government's brief on the constitutionality of Don't Ask, Don't Tell is due Feb. 25. We're going to be very interested in seeing how the government is going to argue that Don't Ask, Don't' Tell is and was constitutional.

So the Log Cabin case still provides pressure on the government to quickly certify that it's ready for repeal. I think it also applies pressure on those who would try to repeal the repeal and it continues to apply pressure to prevent any discharges from happening now.”

We noted that earlier on the call, former Rep. Patrick Murphy, who lead the DADT repeal charge in the House, said that once the repeal was implemented, DADT would end like a "light switch" being flicked off. But Woods noted that there are no exact deadlines for when that might be.

Woods:

"We don't know when that light switch is going to be turned. In his 2011 State of the Union address, the President said that he hoped that would be done by the end of 2011. So there's no guarantee that it will even happen this year. And who knows what's going to happen politically in that year. But if the light switch is turned, the government will claim that our lawsuit is moot and has no longer any relevance, and we're going to fight that because we believe that the case continues to have a great deal of public significance and interest."

So what are the grounds for proceeding if the DOJ claims the case is moot?

"Our grounds fro continuing to have the Court of Appeals decide the constitutionality of Don't Ask, Don't Tell would be that that issue would be a matter of great public interest. And it is also possible that Don't Ask, Don't Tell could be re-enacted, as we've seen from recent comments from people like Rep. Duncan Hunter [R-CA], Gov. Tim Pawlenty and others who wish to repeal the repeal.”

What's the difference between the LCR lawsuit and the Witt case?

“Major Witt's case addressed her personal situation and she was successful in securing her re-instatement. The Log Cabin case is what is called a facial challenge to the constitutionality of the entire statute, so that the injunction that we won in our case applies to the entire United States government and prevents it from enforcing or applying Don't Ask, Don't Tell anywhere in the world. That's the difference. This is a much broader strategy.”

Why is the DOJ even fighting this since President Obama has taken a public position that he's in favor of repeal?

“I wish there was a good answer. But we all know that the President has said that, not only is he against Don't Ask, Don't Tell, but that it weakens the military. And most recently, he even said that it "endangers" our military. And while he's saying that Don't Ask, Don't Tell "endangers" the military, he has the Justice Department lawyers fighting us in this case to try to uphold the constitutionality of Don't Ask, Don't' Tell.

What we hear is that there is this great tension between the White House, the Defense Department and the Justice Department about how to proceed. And the Justice Department apparently is carrying the day, along with the Defense Department, and the White House is coming in second, believe it or not, in the arguments about whether to appeal or how to appeal.

We found evidence of some 23 statutes that were declared unconstitutional by courts over the last 10 years or so in which there was no appeal. And this is under both the Bush and Obama administrations. So while the Justice Department says it has some obligation to appeal - that's actually incorrect, legally. There is no legal obligation to appeal. They made a choice to appeal our case. And the real reason I gather they want to do it is so that they have the time they claim they need to do training, sensitivity sessions and new regulations instead of being bound to observe a court-ordered injunction.”

During the 8-day period when there was no DADT, pursuit to the order of Judge Phillips [for an immediate injunction against enforcement]- were you made aware of any of the problems the military had?

“Not at all. And Professor [Aaron] Belkin [of the Palm Center] did a study of that [see here for am impact report ]- a day-by-day study - and concluded there was obviously no negative impact on the military. The world did not come to an end.”

Does your lawsuit address the question of non-discrimination for gays in the military, regarding making gays a protected class?

“The one claim in our lawsuit that we did not win was a claim for a violation of the Equal Protection Clause in the Constitution. The judge [Phillips] dismissed that claim in our case early on based on existing 9th Circuit precedent. We are, on behalf of Log Cabin, appealing that ruling and trying to obtain a change in the law so that this would be considered a protected class of individuals, protected by the Equal Protection Clause.”

Here's an update from Woods after the call:

“After the government files its brief, we have four weeks to file our brief in response. In addition to arguing in support of Judge Phillips’s ruling [that DADT is unconstitutional], we are going to brief one other issue. Judge Phillips did dismiss one claim from our complaint in which we had argued that DADT violated the equal protection clause of the Constitution. She did so because she felt compelled to rule in that fashion because of a prior ruling on that issue in the Witt case. We will argue that the Court in Witt was wrong to have ruled in that fashion.

Let me try to explain. All of the recent DADT cases (ours and others) derive from the Supreme Court’s holding in Lawrence v. Texas. That case invalidated the Texas statute on due process grounds. It did not address the equal protection clause arguments advanced there.

In both our case and the Witt case, equal protection claims were asserted. When the Witt case got to the Court of Appeals, that Court agreed to dismiss the equal protection claim because cases before Lawrence had upheld DADT against equal protection claims and because Lawrence did not change that. That decision was made in 2008 in Witt. When Judge Phillips addressed the government’s motion to dismiss our equal protection claims in 2009, she felt compelled to follow the Ninth Circuit decision in Witt and dismissed LCR’s equal protection claim.

In our brief in the appeal in our case, we are going to argue both that Judge Phillips was correct in ruling that DADT was unconstitutional under the first amendment and due process clause but that the Ninth Circuit should revisit its equal protection holding in Witt. The “Witt Standard” applies only to the due process clause.

Finally, even if certification is complete and the repeal does become effective, we will oppose the anticipated motion by the government to have the case declared moot. We expect the government to argue that repeal not only moots the appeal but also requires Judge Phillips’ judgment and injunction to be vacated. We will oppose this as we believe that these issues are of such great public interest that the case should continue. This may be especially true if the “repeal the repeal” efforts gain any traction in the coming months.”

cross-posted at LGBT-POV


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Karen, your title needs to be changed. There's nothing in here that indicates the LCR support having transgender people to serve openly, and their law suit did not cover us.

That's a nice pick-up, MonicaHelms. We start throwing around the latest word or conglomeration of letters and forget their history or what they originally stood for.

Michael@LeonardMatlovich.com | February 17, 2011 3:10 PM

From following the effort to end the ban so closely, I would not be surprised if few readers understand how critical this is. Because Gay, Inc., including not just HRC but also SLDN and Servicemembers United were afraid to confront the Administration for having outright betrayed us, most in both the LGBT and non-LGBT communities seem totally unaware of what was lost, and its long term implications, wrongly believing that as soon as repeal is "implemented," that will be the end of the ban and military gay discrimination forever.

First, two factual corrections. The nondiscrimination provision was not just taken out of the original repeal bill. That entire bill, the Military Readiness Enhancement Act [MREA], first submitted in 2005, was killed at the Obama-backed demand of the military. The bill that passed is nothing like it, save for the basic provision of repeal of USC 10 654 aka DADT.

Second, that betrayal happened in May of last year before either the House or Senate were to vote, not specifically in relation to the Lame Duck session. The House voted on the “compromise bill” attached as an amendment to the defense authorization bill that month, and the Senate, the first time, in September.

And just because the “consensus” [made up of TWO people as I recall] asserted “it was done for pragmatic reasons” is not an answer to the question Tom Carpenter kindly asked for me on the call:

“The idea of gutting the mandate for nondiscrimination protections of gay service members IN the military post repeal was never publicly discussed until suddenly last May the MREA was dead & the so-called "compromise" contained no such protections. According to Ryan Grim at HUFPO, Nancy Pelosi told reporters that, quote, "the House weakened its repeal language to mollify the White House....[that] military leaders refused to accept language that would bar discrimination, so the clause was dropped,” unquote. WHO first suggested this surrender, suggesting "out of the blue" it was a deal breaker, and why did our allies in Congress agree to it? Names please.”

No answer.

For those unaware, the MREA was brilliantly and presciently written. Its authors wisely foresaw that eliminating the ban on open service was not enough, that lip service to equality was not enough, any more than President Truman’s simply ordering racial integration turned out to be enough when, even after every corner of the armed forces had finally been integrated in the early sixties, there still existed such unequal treatment of African-American service members that “race riots” on military bases and ships escalated to 1971 when tensions on Travis Air Force Base exploded into a three-day riot, resulting in numerous injuries, arson, the arrest of 135 airmen, a related death, and the DoD and White House in shock.

Therefore, the MREA would not just have repealed DADT but also have CREATED A FEDERAL LAW banning any kind of discrimination on the basis of sexual orientation in the military such as in assignment, evaluations, promotions, etc. WHY would the military [READ: Secretary of Defense Robert Gates] want to retain, in effect, the right TO discriminate in the military post repeal?

So, the bill that passed provides no protections when multiple cases, such as the recent one involving Navy Ensign Steve Crowston who got “the worst performance appraisal” in his 16 years of service after filing a complaint about his commander and others suggesting his “call signs” might include “Gay Boy,” “Fagmeister” and “Cowgirl,” prove that even thought the military ALREADY has a policy against harassment of those perceived to be gay, they are rarely enforced. In a single year alone, SLDN has documented over 1,000 cases.

AND, in another nexus awash with bitter irony, another officer present when Crowston was humiliated with the homophobic calls signs, and his homophobic commander’s replacement, Cmdr. Damien Christopher, is deployed on the USS Enterprise, the very ship at the center of the recent scandal involving the homophobic videos made by its now-disgraced former commander Capt. Owen Honors who thought saying, "For the next 20 minutes, why don't you fags just go ahead and hug yourselves,” in one of his “skits” funny.

And the Pentagon was not just content to gut protections from legislation, their Working Group report explicitly said:

“We do NOT recommend that sexual orientation be placed alongside race, color, religion, sex, and national origin, as a class eligible for various diversity programs, tracking initiatives, and complaint resolution processes under the Military Equal Opportunity Program [MEO].”

And their excuse for treating gays differently demonstrates that while the Antigay Industry failed to stop repeal itself they continue to influence Administration decision making, as, after indefensibly meeting with SEVEN different antigay groups, the report’s authors bleat that including gays under the MEO “could produce a sense…that gay men and lesbians are being elevated to a special status as a ‘protected class’ and will receive special treatment.” [Did Truman meet with members of the KKK when considering his military racial integration order?]

To recap: despite the Administration’s two-years insistence that Obama using his legal powers to order a freeze on discharges in the name of national security was a bad idea because it wasn’t a “permanent solution” [an absurd excuse backed by both SLDN and HRC], even after repeal of DADT is finally actualized, because not nondiscrimination law was also passed, NOTHING prevents any future administration from reinstituting the ban in the same form that it existed for half a century before DADT—or, short of that, discriminating against gays within the military any way they wish—which is exactly what Obama, Inc., is already proposing in terms of denying military partner benefits NOT forbidden by DOMA such as on-base housing, refusing to provide gays the equal protections of the MEO, and allowing commanders the discretion of reassigning troops who refuse to, e.g., share barracks with an out gay service member. IMAGINE their saying they similarly accommodate a racist, misogynist, or anti-Semite.

LCR’s suit MUST continue as an ultimate court ruling finding the ban on service or discrimination within the service unconstitutional is the only thing that can make up for the chasms of injustice the passed bill leaves deep and wide.

Did anyone else notice that Allison from HRC sounded like she'd swallowed a cork when asked what HRC would be doing to fight for trans inclusion in the military?

I sure noticed it. All she said was "Yes." What kind of answer was that? Talking about catching HRC with their pants down.