A long-pending lawsuit challenging the constitutionality “don’t ask, don’t tell” will finally be heard in a Southern California federal courtroom today.
Opening statements in Log Cabin Republicans v. United States of America will begin at 9 a.m. Pacific time (Visit Advocate.com and The Advocate’s Twitter page for updates on the proceedings). Log Cabin Republicans will argue in the nonjury trial before U.S. district judge Victoria A. Phillips that the 1993 law barring gays and lesbians from serving openly in the military violates constitutional protections of due process and free speech.
Though President Barack Obama has publicly stated both his opposition to the law and his support for its repeal, the Justice Department is defending the policy in court after previous failed attempts to dismiss the suit.
“Though times may have blinded the Congress that enacted DADT to this truth, all available evidence, both at the time of enactment and since, shows that DADT is a law that serves only to oppress,” attorney Dan Woods, who represents the national gay Republican organization, wrote in a pretrial memorandum.
Log Cabin also contends that its standing to sue the government, one now at the center of a heated legislative repeal effort on Capitol Hill, rests on its members who are current, retired, or former members of the armed services. Attorneys identify two specific service members adversely affected by the policy: Lt. Colonel “John Doe,” who recently completed a tour of duty in Iraq, remains in the military and thus has been granted anonymity in legal proceedings; and J. Alexander Nicholson, the executive director of Servicemembers United, who was discharged from the Army in 2002.
Log Cabin spokesman Charles Moran said a federal judge in Los Angeles originally assigned to the case in 2004 had retired and that the suit was then reassigned to Judge Phillips in Riverside, Calif.
"It would be preferable for 'don't ask, don't tell’ to be repealed legislatively, but while there is legislation moving through now, President Obama has said he would veto the defense authorization bill if it contains too much pork, which will basically sink what our community is trying to do," Moran said.
The suit puts needed pressure on DADT repeal, Log Cabin argues. “We believe our case can work in concert with the legislative process that is now underway,” the group said in a recent press release. “We must remember that the legislation is conditional upon the House and Senate passing their own bills, and then coming together in a conference committee to work out the details of a final bill that will then have to pass both chambers.”
Log Cabin’s legal team has a lengthy list of both expert witnesses and former service members affected by the policy, including Lt. Jenny Kopfstein and Maj. Mike Almy, both of whom testified about DADT repeal before the Senate Armed Service Committee in March.
Expert witnesses in the plaintiffs’ list submitted to the court include Palm Center director Aaron Belkin and Nathaniel Frank, author of Unfriendly Fire: How the Gay Ban Undermines the Military and Weakens America.
By all accounts the Justice Department will not put any witnesses on the stand to defend DADT; it has argued that the law is constitutional if Congress passed it in 1993 with a rational intent to secure an effective and cohesive military. But Judge Phillips has indicated she will allow court evidence arising after 1993, as court cases decided after DADT went into effect have raised the level of scrutiny for laws that perpetrate antigay discrimination.
“[The Justice Department] is fighting this case tooth and nail by getting us completely thrown out, but at the same time, it's questionable that they're not putting up more of a robust defense,” Moran said.