Daniel Woods

While most people who are concerned about eliminating the military’s Don’t Ask Don’t Tell law are focused on a bill in Congress and a survey by the Pentagon, there is important action elsewhere—in a federal district court in Riverside, California.

It is there, in the U.S. District Court for Central California, that Judge Virginia Phillips opened proceedings Tuesday, July 13, in a bench trial to hear a class action lawsuit against Don’t Ask, Don’t Tell (DADT).

Log Cabin Republicans v. U.S. is to the federal law banning gays from the military what Perry v. Schwarzenegger is to the state law banning gays from obtaining marriage licenses. It is a days long trial examining the history of the law, the injury it has caused, and the likelihood that animus is its motivation.

The plaintiff is the Log Cabin Republicans (LCR), a national gay political group, who says many of its members are being denied their constitutional rights. The group specifically identifies two members: Alexander Nicholson, a former U.S. Army Human Intelligence officer who was discharged under DADT and now serves as head of Servicemembers United; and John Doe, a lieutenant colonel in the Army Reserves concerned he may face discharge under the policy.

The U.S. Department of Justice has tried repeatedly to have the lawsuit dismissed, claiming LCR has no legal standing to serve as plaintiffs. It also tried to have the judge decide the case without hearing testimony from LCR’s witnesses. And it tried to have the judge “stay”—or postponement—the lawsuit, arguing that Congress has a measure pending that could significantly affect the DADT law.

But in an important victory July 6, Phillips ruled against the government on all three points. She said LCR was entitled to a trial and entitled to put on witnesses. She ruled that against a postponement, saying that it would be “speculative” to assert that the DADT repeal measure before Congress “will ultimately be included as part of the final defense authorization bill.” And, even if the DADT repeal is retained within the defense authorization bill, she said, repeal of the law is still conditioned on various certifications.

“In other words,” wrote Phillips, “the currently contemplated legislation, were it to become law, would not result in imminent repeal of the DADT Policy. Given the many contingencies involved—including the threshold contingency of Congressional approval—and the lack of clear timelines, any ultimate repeal that may result from this legislation is at this point remote, if not wholly speculative.”

Phillips also—importantly—ruled last year that DOJ must show –not just a rational reason to justify DADT but—an “important” reason. While a “rational” reason could be just about anything, requiring an important reason makes it harder for the federal government to defend the law.

Phillips’ pre-trial rulings have not all been in favor of Log Cabin. In one, she indicated she would not hear the group’s claim that DADT violates the equal protection guarantee.

The legal questions that remain during the trial this week are whether DADT violates the constitutional guarantees to free speech and due process of law. And the question of free speech is, in this case, limited. Judge Phillips said she would consider DADT’s implications on speech other than statements “regarding homosexuality as evidence of his or her propensity to engage in homosexual acts.”

Phillips, 52, was appointed to the federal bench in 1999 by President Clinton, who signed DADT into law in 1993. LCR filed its lawsuit against the policy in 2004.

On the witness stand today, according to LCR lead attorney Daniel Woods, were Terry Hamilton, chairman of the LCR national board; Jamie Ensley, president of the Georgia LCR chapter; Philip Bradley, LCR member; and Nathaniel Frank, author of a book about the military’s policy on gays, called Unfriendly Fire.

According to a prepared statement published on blogcabin.net, an LCR blog, Woods called DADT “one of the most pressing civil rights issues in our great country today.”

But interest in the case would not prove that point. Except for Twitter reports from The Advocate and an LGBTpov.com blog entry from Karen Ocamb, news editor for Frontiers in LA magazine, there was relatively little coverage of the case. And compared to the media frenzy around the Proposition 8 case in January, and its closing arguments in June, LCR v. US is proceeding in virtual obscurity.

A Twitter report from The Advocate indicated that, among general circulation media, only Associated Press and the Los Angeles Times had reporters in the courtroom Tuesday. But by the end of the day, the Los Angeles Times had run the Associated Press story, which provided few details about Tuesday’s courtroom proceedings. Neither of the two national organizations working for repeal of DADT had any mention of the lawsuit on their websites Tuesday, nor did any of the national gay legal or political organizations. Even Blogcabin.net ran only attorney Woods’ prepared opening statement.

What has captured considerable media attention concerning DADT during the past several days is a “survey” the Pentagon sent to about 400,000 active duty servicemembers asking such questions as, “If Don’t Ask, Don’t Tell is repealed and you are assigned to bathroom facilities with an open bay shower that someone you believe to be a gay or lesbian Service member also used, which are you most likely to do?” With this question, the survey gave servicemembers several possible answers to choose from, including “use the shower at a different time” and ask a leader for “other options.”

Servicemembers United, a national organization of gay and lesbian servicemembers, harshly criticized the survey as “biased” against gay servicemembers. Executive Director Nicholson said the survey used “derogatory and insulting wording, assumptions, and insinuations.”

The survey repeatedly uses the clinical one-dimensional term “homosexual,” and even misstates the law itself, saying that it requires separation from the service of a servicemember who “is found to have engaged in, or attempted to engage in, homosexual acts.” The law, in fact, calls for discharge of a servicemember who “demonstrates a propensity” to have sex with a person of the same gender, and a servicemember who simply says, “I am gay” is considered to have such a propensity.

In a telephone conference call with reporters Friday, July 9, Pentagon spokesman Geoff Morrell defend the survey, saying its purpose was not to be a referendum on DADT but “a confidential conversation” between the Pentagon DADT working group and “a large representative sample” of servicemembers.

And, in fact, one could “read” the survey as a tactic common among political surveys—providing to servicemembers some ideas about how to handle situations involving gay servicemembers. For instance, with the shower facility question, the six multiple response choices are: “Take no action,” “Discuss how we expect each other to behave and conduct ourselves while sharing a room, berth or field tent,” “Talk to a chaplain, mentor, or leader about how to handle the situation,” “Talk to a leader to see if I have other options,” “Something else,” and “Don’t know.” (If a servicemember chooses, “Something else,” the survey prompts him or her to “specify” what that is.)

But in clarifying the purpose of the questions about sharing bathroom and sleeping facilities, Morrell they were intended to determine whether the large scale group expressed the same concerns as did servicemembers participating in 30 focus group discussions on the topic. He said they would also direct the Pentagon’s efforts in being able to “devise a solution” to problems that are perceived to be widespread concerns.

“If we avoided these questions and proceeded with a repeal, and proceeded with an implementation that didn’t address this potential problem, we wouldn’t be doing our job,” said Morrell. “Because the [Defense] secretary’s attitude about this is he thinks this change should be made, but he’s insisting that it be done smartly.”

That latter statement from Morrell was the first time a Pentagon official confirmed that Defense Secretary Robert Gates is himself in favor of repealing DADT. Gates’ public statements, thus far, have been carefully worded to indicate “support” for the president’s decision to repeal DADT and have not stated explicit support for repeal of DADT.

(For a transcript of the telephone conference call, see www.defense.gov/transcripts/transcript.aspx?transcriptid=4651. For a copy of the complete survey, go to servicemembersunited.org/survey.)

Language seeking repeal of the policy—following a prescribed certification process—is embedded in the annual legislation to authorize spending by the Defense Department. The Senate is expected to take up the issue before it takes its summer recess on August 12.