Judicial challenges to the law, commonly known as “Don’t Ask, Don’t Tell” (“DADT”), began almost immediately after it was passed by Congress and signed by President Clinton in 1993.  For many years, numerous cases brought on behalf of service members impacted by the law, made their way through the lengthy litigation process of the Federal Courts.

The thrust of these cases was that DADT was unconstitutional based upon the right of free speech, equal protection under the law, substantive due process and other legal theories.  Unfortunately, in almost every case, the court disagreed with the service members and found DADT constitutional. Federal judges had little difficulty disposing of arguments based upon free speech and equal protection but struggled with claims based upon the right to substantive due process.

Two major legal concepts posed difficult burdens for the service members to overcome.  The first was commonly known as “deference.” Simply put, Courts were reluctant to second-guess decisions made by other branches of the government when it came to military matters, particularly those dealing with personnel. To many judges, the debate in Congress, leading to what was viewed as a compromise between the desire of the President for open service and opposition from the military leadership and many members of Congress, made the deference doctrine even more compelling in DADT cases.

The second obstacle was the law established in the U.S Supreme Court (“USSC”) 1986 case of Bowers v. Hardwick. This case stood for the proposition that judicial review in cases involving “homosexual conduct”, in which the appellant claimed a violation of substantive due process, was the lowest standard, “rational basis.” The burden on the government under this test is slight. It need only demonstrate that the law be “rationally related” to a “legitimate government interest.”

By the early 2000’s all Federal Courts were in agreement that DADT was constitutional.  The path to challenging the law in the courts seemed to have reached an end.

In 2003, a narrowly divided USSC decided Lawrence v. Texas in which it over ruled Bowers and for the first time found constitutional protection for “homosexual conduct.” Unfortunately, the majority decision written by Justice Kennedy, did not specifically address what standard should be applied when conducting a judicial review of whether a particular law violated the substantive due process rights found in the Constitution. Courts were left to struggle with whether the test was “rational basis” or some higher standard.  With the decision in this case, the legal path to challenge DADT seemed to reopen.

Major Margaret Witt, a nurse, was literally a poster girl for the Air Force. Her case began when an anonymous source informed her command she was in a long time relationship with a civilian woman. Major Witt lived with this woman over 250 miles from the military hospital where she drilled as a Reservist. When her peers heard the accusations against her, they closed ranks and supported her retention. Not withstanding this solidarity, the Air Force decided to discharge her in order to uphold “good order and morale.”

Witt filed suit in Federal Court in Washington State, challenging the constitutionality of DADT. The District Court dismissed the cased based upon the pre-Lawrence precedents from the United States Appellate Court for the 9th Circuit (“9th Circuit”). The 9th Circuit is the appellate court for the Federal District Courts in the western states of Alaska, Arizona, California, Idaho, Hawaii, Montana, Nevada, and Oregon, Washington. Witt appealed the dismissal to the 9th Circuit.

In May 21, 2008, a three-judge panel of the 9th Circuit held that earlier decisions in the 9th Circuit based upon Bowers, in light of Lawrence, were no longer valid. This decision did not find DADT unconstitutional on its face. The Court did, however, find that review of the law was entitled to heightened scrutiny beyond the “rational basis” test.  This would shift the burden from the service member to the government to show that the discharge of a particular service member would preserve “good order and morale” of a military unit. The case was remanded by the 9th Circuit to the District Court for trial.

In response to this ruling, the government requested the entire 28 judges 9th Circuit (en banc) hear the case. On December 4, 2008, with only six Republican appointed judges dissenting, the Court rejected the government’s motion.

Between the Witt ruling in May and the denial of the motion for an en banc hearing in December, the 1st Circuit Court of Appeals in Boston, ruled in Gates v. Cook, another DADT case, that even though Lawrence did mandate higher scrutiny, based upon “deference”, it upheld the District Court dismissal of the case.

The rulings in Witt and Cook are in conflict. This split in the Circuit Courts on a question of national importance would likely lead to the USSC granting review if either or both cases were appealed.

In Witt, the government has 90 days to appeal the 9th Circuit decision to the USSC. If it does not file an appeal, the case will proceed to trial. It is unlikely the Bush Justice Department would appeal the case so late in the administration. It will probably ask the Court for more time to file the appeal and pass the decision on to the new administration.

The new Justice Department would have three options. The first would be to settle with Major Witt on terms favorable to her.

The second option would be to do nothing and allow the matter to go to trial. Discovery would commence in the District Court with a trial date in late 2009 or 2010.  Depositions of key Pentagon officials and senior military officers would permit Witt’s attorneys to examine the history of DADT, challenge the rationale for the law as well as its well established uneven application and question the high cost to the country in this time of two wars. This examination is probably something the Department of Defense would probably wish to avoid.

The final option would be to appeal to the USSC. With the present makeup of the Supreme Court, it is probable the outcome would not be favorable to service members. Such an adverse decision would close the door on any future attempt to find relief for service members through the judicial system.

What the Obama Justice Department does in this case may signal whether the new President’s administration and the Democratic Party will fulfill its campaign promise to end DADT. Time will tell.

Former Marine Captain Tom Carpenter is a member of the state bars
of California and Colorado and practices in the federal court system

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