The XX Factor

Will DoJ Appeal the Don’t Ask, Don’t Tell Ruling?

Why are court challenges to Don’t Ask, Don’t Tell suddenly looking like winners? Last week, federal district court Judge Virginia Phillips struck down DADT. A second challenge brought by a lesbian servicemember who was discharged goes to court in Takoma, Wash., this week. It used to be that courts could uphold discrimination against gay people with any old rational basis. But now they have to find that a law “significantly furthers” the government’s interests and that the policy is “necessary” to achieve them.

That standard (which grew out of Lawrence v. Texas, the Supreme Court’s ruling striking down state sodomy laws in 2003) has changed the legal landscape. In the DADT cases, it means the government must show how a particular servicemember’s presence harms the military. My friend Nathaniel Frank, author of Unfriendly Fire and an expert witness in these cases, explains: “For years, the courts, the military and the Congress have maddeningly played off each other’s baseless assertions that gays undermine the military and somehow none of the checks and balances in place required anyone to examine or prove those assertions. Under the rational basis standard, this was easy enough-a 1991 federal court assumed gays could change their orientation and so were not a protected class-but now these assumptions are crumbling.”

The heightened standard meant that Judge Phillips took a hard look at the evidence. “In this case, DOJ went to extraordinary lengths to get hundreds of pages of evidence dismissed, and tried repeatedly to have our seven expert witnesses disqualified,” Nathaniel says. “They did not offer any evidence or expert witnesses in their defense. So what’s remarkable is that this judge, who took her time and read every single exhibit, based her decision on over 400 pages of evidence (and that’s just what the plaintiffs put in their summary).”

Nathaniel has a new report about the costs of DADT, principally in terms of lost troops. The next big question is whether DoJ will appeal Judge Phillips’ ruling. Normally, the government is compelled to defend its laws. But in this case, as the judge pointed out, President Obama has said himself that DADT doesn’t contribute to national security. If a law is failing at its intended purpose, doesn’t that mean its unconstitutional, given the standard from Lawrence ?