Military policy on gays faces legal test

The U.S. government’s “don’t ask, don’t tell” policy banning openly gay military service members will be at the center of a legal battle played out in a federal courtroom in Riverside on Tuesday, with the policy facing its first major constitutional challenge since a 2003 U.S. Supreme Court decision in a Texas case struck down anti-sodomy laws.

In its lawsuit against the government, the Log Cabin Republicans, a gay rights group, argues that the Texas ruling means the military can no longer interpret a mere admission of homosexuality as justification for a discharge.

The group also contends that the “don’t ask, don’t tell” policy is discriminatory and violates lesbians’ and gay men’s constitutional rights to due process, freedom of speech and right to association. It asks U.S. District Judge Virginia Phillips for a permanent injunction that would forbid the government to enforce the policy.

During the trial, Log Cabin attorneys are expected to focus their case on other countries that allow gays and lesbians in the military, as well as experts and veterans who are expected to testify that most service members in today’s military have no objection to serving with gays and lesbians.

Among those testifying will be Jenny Kopfstein of San Diego, a decorated Navy officer who was discharged in 2002. Kopfstein felt that, while serving on the guided missile cruiser Shiloh, she was forced to “lie, or tell half-truths, to my shipmates” about her sexual orientation. She wrote a letter to her commanding officer in 2000 telling him that she is a lesbian.

“When I arrived at my ship, everyone wanted to get to know me, to find out what kind of person I was,” said Kofpstein, a U.S. Naval Academy graduate. “It was like a slow pressure cooker, where all these questions built up and I couldn’t answer them honestly…. I felt totally and utterly alone.”

The legal challenge goes to trial as the military’s policy on gays continues to roil Congress and provided one of the rare partisan flashpoints in the recent confirmation hearings of Supreme Court nominee Elena Kagan, who criticized the law as a “profound wrong” while dean of Harvard Law School.

The lead attorney for the Log Cabin Republicans said the “cruel irony” is that Justice Department attorneys in court have been arguing the opposite — saying Congress passed the ban on gays to preserve military readiness and cohesiveness.

Attorney Dan Woods also said that despite indications Congress may repeal the law, there is no guarantee that will occur.

“It’s certainly not going to happen this year,” said Woods, a Los Angeles-based attorney at the White & Case law firm who is working pro bono. “While patriotic homosexuals are serving in the military now, and fighting and dying for us in Iraq and Afghanistan, it’s important for them to have their constitutional rights validated now, immediately.”

Bolstering the plaintiff’s argument is a 2008 decision by the U.S 9th Circuit Court of Appeals regarding Air Force Maj. Margaret Witt, who was discharged after her superiors learned she lived with a woman off-base in Washington state. The court determined that the military had to show that the discharge was necessary to maintain policy goals such as military readiness or unit cohesion.

Combined with the Texas case, the two rulings have put a greater burden on the government to show that having gays and lesbians in the military creates an unacceptable risk to military capabilities, said constitutional scholar Kenji Yoshino of the New York University School of Law.

“If you asked me prior to 2003 would this case have any chance of succeeding, I would have said no. Now, I’m not so sure,” Yoshino said.

Still, Yoshino said the courts historically have “kept their nose out of military affairs,” because the Constitution places the responsibility for regulating the military exclusively on the executive and legislative branches of government: “That’s why the government has won case after case on this.”

The “don’t ask, don’t tell policy” was adopted by the Clinton administration in 1993 and was considered a reform to the military’s practice of seeking out and discharging gays and lesbians. Under the policy, as long as gays and lesbians keep their sexual orientation secret, they are allowed to serve.

However, more than 10,000 service members have been discharged under the “don’t ask, don’t tell” policy.

President Obama has been an outspoken critic of the policy and continues to advocate its repeal.

A Justice Department spokeswoman said that the administration has the obligation to defend acts of Congress, regardless of any policy changes under consideration.

“The president believes and has repeatedly affirmed that “don’t ask, don’t tell” is a bad policy that harms our national security and undermines our military effectiveness because it requires the discharge of brave Americans who wish to serve this country honestly,” said Tracy Schmaler, a spokeswoman for the Department of Justice. “The president and his administration are working with the military leadership and Congress to repeal this law.”

Even if the legislation to repeal “don’t ask, don’t tell” becomes law, it wouldn’t take effect unless the Pentagon completes an ongoing study to determine if it can adapt to the change without harming military readiness. The study is scheduled to be completed in December.

The U.S. House passed a bill that would repeal the policy in May, but it could have a much stiffer challenge in the Senate. Sen. John McCain (R-Ariz.) said he would support a filibuster, arguing that Congress should wait until the Defense study is completed. The repeal also has been tacked onto a Defense spending bill that the White House has threatened to veto if Congress weighs down legislation for weapons programs the Pentagon wants to eliminate.

“As much as President Obama promises that ‘don’t ask, don’t tell’ will be repealed, there’s still a level of distrust there,” said Charles Moran, spokesman for the Log Cabin Republicans. “The Obama administration has made many promises, and the Democratic Congress has made many promises, to the gay and lesbian community and have not acted on them.”