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The Plain English Attorney

While not related to life and estate planning, a significant portion of my clients are asking about the legal status of the military’s Don’t Ask, Don’t Tell policy regarding gay service members being open about their orientation and relationships. For those who are not familiar, the military has a ban on gay people serving in the military, but there is an official policy that states military personnel cannot inquire about orientation and service members cannot state their orientation if gay. This policy is called “Don’t Ask, Don’t Tell”, sometimes shortened to DADT, and there have been some recent cases surrounding the unconstitutionality of the policy.

As of the time of this writing, DADT is unconstitutional, meaning gay service members can be open about their sexual orientation. This is based on a federal judge issuing an injunction prohibiting the military from enforcing the policy, and the judge’s ruling that DADT had no reasonable relation to military readiness. In fact, Federal Judge Virginia Phillips, after hearing the case, ruled that DADT actually hurt military readiness by taking key personnel out of a military unit and leaving them shorthanded, and testimony from the unit showed that they did not care about the person’s orientation. Of course, this ruling is being appealed, and while military recruiters are now able to enlist openly gay personnel, they have to warn them that DADT may be reinstated.

So where, exactly, is the ruling heading? The Ninth Circuit Court of Appeals (a federal appeals court just below the U.S. Supreme Court) will be hearing the case. But in the meantime, the Justice Department had appealed the injunction that stops the military from enforcing DADT. Judge Phillips who issued the ruling heard arguments to “stay the injunction” while it is on appeal. This means she had the opportunity to suspend their injunction while the case is being appealed because there would be great harm to the military and/or the country if the military is forced to suspend DADT. Yesterday, she disagreed and kept the injunction in place, and so the Ninth Circuit Court of Appeals may step in and suspend the injunction while the case is being appealed. If that fails, then the last stop to halt the injunction while it is being appealed is the U.S. Supreme Court.

That’s just the injunction. What about the rest of the case? The Ninth Circuit Court of Appeals will hear arguments about whether or not DADT is constitutional by balancing the civil rights of the service members against the military’s rationale for having DADT. If the Ninth Circuit finds that the DADT policy is reasonably related to military readiness, then they may reinstate the policy. Either side may then appeal to the U.S. Supreme Court, which will very likely take the case for one reason—cohesion. Even if the Ninth Circuit Court of Appeals upholds DADT as constitutional and prohibits military service by openly gay people, then another federal court of appeals could decide differently down the road, and this is one of those issues where it would be extremely harmful if there were different interpretations of the law. So to make sure that there is a uniform ruling, the Supreme Court will probably step in.
The big question which is creating a lot of confusion is much more political than legal: How can President Obama say he is in favor of repealing Don’t Ask, Don’t Tell while simultaneously having his Justice Department fight to lift the injunction and defend DADT as legitimate law? What doesn’t fit well in a soundbite, and sounds a lot like John Kerry saying he was for a law before he was against it, is that the Justice Department MUST defend a law passed by Congress, and even though the lawyers work for the Executive Branch of the Government lead by the President, President Obama should not interfere.

So how does this fit with the President’s stated desire to repeal DADT? No one will actually say this, but it looks like the Justice Department is actually throwing the case. In presenting its case to Judge Phillips, the only evidence presented was the history of the enactment of DADT by Congress. There was no evidence showing that the policy was reasonably related to a legitimate government end. There was no evidence presented of any harms that may come about if the policy were eliminated. Meanwhile, the other side presented a lot of evidence regarding the non-effectiveness of the policy, showing how the discharges harmed the military, and how the policy personally effected people who were discharged.

In short, this is like the prosecutor presenting a speeding ticket case by explaining that the speed limit on a particular road was legally enacted and nothing more. No testimony by the officer issuing the ticket, no evidence regarding the radar gun’s readings, and nothing at all about the circumstances under which the ticket were issued. Meanwhile the defense has a ton of information fighting the ticket. Of course the defense is going to win. Using another analogy, two football teams line up properly for a play, but the defensive team doesn’t move once the ball is snapped. Guaranteed touchdown.

So while this may seem contradictory in political terms, it looks like the Justice Department is doing the bare minimum to defend Don’t Ask, Don’t Tell in a technical sense, but at the same time they can say they followed all avenues and procedures to defend the law. They’re just not being very zealous or effective about it. Politically, that explanation is difficult for the President to present, even if he wanted to, but my guess is that he doesn’t want to. So, depending on how political the Supreme Court is, it is possible that in the next several months we may see Don’t Ask, Don’t Tell move to Don’t Enforce, Don’t Worry.

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