Combating the Military’s Antigay Policy

From Of Counsel Vol.3 No.6

By Hayley Gorenberg, Deputy Legal Director

Published 11/28/07

"Major Margaret Witt's case presents a stark constitutional question: If not her, then who?" So begins Lambda Legal's amicus brief, submitted to the Ninth Circuit Court of Appeals in the recently argued federal appeal challenging the United States military's "Don't Ask, Don't Tell" (DADT) policy — a policy that has ended the military careers of more than 12,000 servicemembers since 1993.

As our colleagues at the Servicemembers Legal Defense Network say, the policy "is the only law in the land that authorizes the firing of an American for being gay...Many Americans view the policy as a benign gentlemen's agreement with discretion as the key to job security. That is simply not the case. An honest statement of one's sexual orientation to anyone, anywhere, anytime may lead to being fired."

Witt, highly decorated throughout 19 years of military service, was fired after someone else revealed that she had lived with a civilian same-sex partner hundreds of miles from her military base. As we said in our amicus brief, if DADT does not allow Witt to serve, when she made every effort to keep her sexual orientation private, whom would it allow?

Witt joins the ranks of those who have served their country with distinction, only to forfeit their careers upon discovery that they are gay or lesbian. To support the ACLU's representation of Witt, we submitted amicus briefing on the constitutional implications of Lambda Legal's groundbreaking 2003 ruling in Lawrence and Garner v. Texas, which struck down all remaining state sodomy laws in the country and vindicated the constitutional right to express sexual intimacy in adult relationships.

DADT after Lawrence v. Texas

Since the Lawrence decision, the Supreme Court has not addressed DADT, a provision that requires "separating" any member of the military who, as excerpted from the policy: (1) has engaged in, attempted to engage in or solicited another to engage in a homosexual act or acts, (2) has stated that he or she is a homosexual or bisexual, or words to that effect, or (3) has married or attempted to marry a person known to be of the same biological sex. Because the policy bans military personnel from same-sex sexual contact, even in private, it essentially bars gays from serving. Lawrence held that the sexual intimacies and relationships of lesbian and gay consenting adults are protected under the shelter of an existing liberty interest, long recognized as fundamental to everyone. Rather than finding a right to same-sex intimacy, Lawrence confirmed that lesbians and gay men share the same fundamental right that everyone else has to maintain private, intimate relationships and make personal choices about whom one will choose and what one will do within those consensual adult relationships. 

Some critics have suggested that Lawrence was limited to the criminal context. But to quote the Lawrence court, "When homosexual conduct is made criminal by the laws of the state, that declaration in and of itself is an invitation to subject homosexual persons to discrimination, both in the public and the private spheres." So the court contemplated Lawrence as countering discrimination beyond the criminal context.

It is also significant that in deciding Lawrence the Supreme Court not only overruled its 1986 decision in Bowers v. Hardwick but also specifically said, "Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled." As Bowers was foundational to many cases in the 1990s that upheld DADT, Lawrence, properly read, knocks the foundation out from under those decisions.

Indeed, the Ninth Circuit's questioning at the Witt oral argument seemed to acknowledge some of those points. Some questions keyed on the level of scrutiny Lawrence requires in examining the military's discrimination. The panel asked about the intermediate scrutiny used in the circuit prior to the Supreme Court's decision in Bowers. The judges inquired about how the government could prevail under that level of scrutiny.  In the face of the government's argument that Lawrence does not require more than a rational basis examination, the judges posed questions about the Supreme Court's attention to the strength of the individual interest, "liberty" and "rights" — concepts that trigger higher scrutiny in other contexts.

Lambda Legal's History of Military Work

Decades before Lawrence, Lambda Legal began fighting for fair treatment of servicemembers. The work fits into our national priorities in several places at once. High on our list is the fight for fairness in the workplace. One-fifth of the 5000-plus calls to our national Help Desks each year concern discrimination at work. The military is a place of employment, and its employment that has provided a gateway to highly placed government service and elected office — in addition to more basic benefits, pensions, etc.

We see discrimination in the U.S. military bleeding into other core areas of Lambda Legal's civil rights priorities, as well. For instance, our fight to protect same-sex relationships obviously figures into the DADT advocacy. Sometimes, however, the relationship is less obvious, and perhaps more surprising. For instance, we recently represented a gay man in the military whose custody rights to his children were threatened by DADT when, in the course of his divorce, his soon-to-be-ex-wife mounted a custody challenge based, in part, on the fact that our client had a same-sex partner. Lambda Legal has a proud history over decades of defending clients against such antigay attacks. But in this case — as could be the case for any gay servicemember in such circumstances — the ability to exercise our client's fundamental connection to his children was threatened by DADT: He could have lost his job and his pension (and thus his mode of supporting his children, as well as himself) if his identity and sexual orientation had become public in the course of filing court papers. Such cases further illustrate DADT's devastating ramifications in both professional and personal arenas, as servicemembers are pressed to assess whether exercising their rights constitutes "telling" their sexual orientation — while their careers hang in the balance

DADT on a policy level

More than 20 other countries allow gay men and lesbians to serve openly in the armed forces, and numerous U.S. military officials, including retired General John Shalikashvili, former Chair of the Joint Chiefs of Staff, agree that the discriminatory policy is outmoded. When he retired in 1997, Shalikashvili was the nation's top-ranking military official. His New York Times op-ed in January, titled "Second Thoughts on Gays in the Military," said that the military "must welcome the service of any American who is willing and able to do the job." Also in January of this year, former Defense Secretary William Cohen suggested that congressional leaders should revisit DADT. And retired Lieutenant General Claudia Kennedy, the first woman to achieve three-star rank in the Army, has called DADT a "hollow policy that serves no useful purpose."

Meanwhile, an October 2006 poll of active duty personnel, veterans and reservists who had served in Afghanistan or Iraq indicated that approximately three out of four servicemembers said they were comfortable with gays and lesbians. A study last year by SLDN indicated that military ranks could increase by more than 40,000 if DADT were shelved. SLDN's studies also indicate a gender-based compounding of discrimination in the military under DADT: Although women account for about 15 percent of the armed forces, in 2005 nearly one-third of those who were dismissed under DADT were women.

And the war in Iraq has increased attention to the dismissals of 58 Arab language specialists from the military. In May 2007, several dozen members of the House of Representatives wrote the House Armed Services Committee about the dismissals compromising national security and failing to serve the nation well. Former Representative Marty Meehan, who chaired the House Armed Services Subcommittee on Oversight and Investigations, pushed for repealing DADT, repeatedly introducing a bill with more than 120 co-sponsors, to no avail. After Meehan left the House this summer, Ellen Tauscher, who heads the House Armed Services Strategic Forces Subcommittee, took up the cause.

In tandem with these political efforts, we look to rulings in pending court cases, including Witt, to vindicate the rights we detailed in our amicus work in that case: "If the exemplary Air Force career of Major Witt may be ended on this record, then the protected liberty interest in having in one's most private life the sustenance and love of an intimate relationship with another person, Lawrence v. Texas, 539 U.S. 558 (2003), is effectively extinguished for lesbian and gay people throughout their military careers. The Fifth Amendment does not permit such a result, nor is it in the least humane to expect endurance of the risks and stressors of military life without such an intimate, private refuge."  

And so, amidst the burgeoning critiques of "Don't Ask, Don't Tell," we are applying Lawrence's constitutional advances to break through the military's barrier to equality.