[Update: A comment to a somewhat confused Balkinization analysis cites this interesting discussion of when Presidents (or SGs) don't defend statutes. The various interests involved make it more than a matter of a single President thinking said law is unconstitutional. So, Obama warily defending DADT in court has some justification. It's hard though -- DADT and DOMA is based on sand, and trying to defend it without looking like a tool is tricky.]
A federal judge, in a trial set to begin Sept. 13, will apply a new standard to the military’s “don’t ask, don’t tell” policy. This time, the burden will be on the military to prove not that Witt is a lesbian – her sexual orientation is not in dispute – but that her homosexuality is harmful to her unit’s cohesiveness.
-- Recent News Item (More here)
Right before the remand of Witt v. Department of Air Force (9CA) was due to be tried, another federal judge struck down DADT under its standard as well as under the First Amendment. Witt held that Lawrence v. Texas had implications in the military, setting up an intermediate level of scrutiny that put the burden on the government. The government would have to show that unit cohesion required the policy. This is notable since Lawrence was a criminal case, one that surely had civil implications, but how would it apply in the military context? And, what level of scrutiny was required? The First Amendment was not dealt with in that case.
[Update: Via a comment here, I see that Witt actually cited a military court of appeals ruling that applied Lawrence to the military context using heightened scrutiny. The case involved sex between people of a different rank, so the "consent" exception to Lawrence applied. But, the fact the "UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES" applied such careful review underlines the legitimacy of the review in this context.]
Witt split the baby, noting its language and citation of fundamental rights precedent suggests at the very least more than rational basis review. En banc review was denied, a few judges dissenting, Kozinksi doing so since he felt it warranted close and careful review. Note that Kozinski joined the unjust ruling discussed yesterday. Here his concern was probably warranted, the matter just the sort of thing full review is there for. He also suggested that the policy might change in the meanwhile. That was December 2008; since then by the data cited in this opinion, hundreds more were kicked out.
[The case at issue here was brought by the Log Cabin Republicans, officially a non-profit corporation. Yes, a corporation. The horror! Yes, it had standing to defend various members, but such is the case for other corporations too. This is why just citing that a "corporation" is involved (e.g., NYT or NAACP) is not enough as some sort of scare tactic.]
As to the immediate case, the discussion notes that the policy does not meet the test; instead, it burdens the military in various respects. Thousands of people, many trained in necessary skills, are lost as "moral waivers" are necessary to fill needs. The usual "meritocracy" is not followed. Distrust is promoted in the ranks because of the resulting secrecy. It is not needed for unit cohesion. And, even in respect to privacy, other than basic training, there is enough separation for that not to be a problem. [Rachel Maddow in an interview with a witness Friday night notes that government actually cross-examined him about this issue. So, even if the government didn't put on their own witnesses, it still acted like tools here.] The delay in many cases until people came back from overseas underlines the lack of necessity.*
Overall:
The Don't Ask, Don't Tell Act infringes the fundamental rights of United States servicemembers in many ways, some described above. 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, is 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.
The policy also violates the First Amendment. It is an illegitimate content based regulation -- "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 military has more discretion to regulate speech, but the policy still is "far greater than necessary to protect the Government's substantial interests." And, again, as suggested above, the policy not only interferes with sexual privacy overall, but general freedom of expression.
The very name of the policy underlines the speech aspect, even if conduct is also involved. When the policy was first proposed, (then chairman of the Joint Chiefs of Staff) Colin Powell differentiated it from racial integration of the military: "skin color is a benign nonbehavioral characteristic, while sexual orientation is perhaps the most profound of human behavioral characteristics." The use of "benign" is telling; also, as the Supreme Court recently noted: "Our decisions have declined to distinguish between status and conduct in this context." Resting on the law and legislative action itself ["it again must be noted that Defendants called no witnesses, put on no affirmative case, and only entered into evidence the legislative history of the Act"] did not do the trick here.
The Obama Administration is clearly just trying to run out the clock here. But, meanwhile, federal judges have to do their job. Unlike in the last case, they are not supposed to pass the buck. As Rachel Maddow notes, meanwhile people continue to lose their job.
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* Some discussion:
Among those discharged were many with critically needed skills. 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; counterterrorism; weapons development; and medicine. (Trial Tr. 199:24-200:5, 204:23-24, July 13, 2010; Trial Ex. 9.) Far from furthering the military's readiness, the discharge of these service men and women had a direct and deleterious effect on this governmental interest. [critical skills]
Citing a Pentagon study, he opined that for every person discharged after ten years of service, six new servicemembers would need to be recruited to recover the level of experience lost by that discharge. (Trial Tr. 1029:6-23, July 20, 2010.) With that background, Dr. Korb opined the Don't Ask, Don't Tell Act negatively affects military recruiting in two ways: its existence discourages those who would otherwise enlist from doing so, and many colleges and universities will not permit military recruiting or Army ROTC programs on campus because the Act's requirements violate their employment nondiscrimination policies. [skilled lost]
In addition to the increased numbers of convicted felons and misdemeanants allowed to join the ranks of the military forces, Professor Frank testified that increased numbers of recruits lacking the required level of education and physical fitness were allowed to enlist because of troop shortages during the years following 2001. ['moral waiver']
He described the military as a meritocracy, but testified that the Don't Ask, Don't Tell Act detracts from the merit-based nature of the organization, because discharges under the Act are not based on the servicemember's failure to perform his or her duties properly, or on the effect of the soldier's presence on the unit's morale or cohesion. [merit]