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.”