News

Frequently Asked Questions on Log Cabin Republicans v. United States of America

July 9, 2010

Log Cabin Republicans' longstanding lawsuit challenging the 'Don't Ask, Don't Tell' policy will go to trial, presided by Judge Virginia Phillips in federal court.

Prepared by White and Case LLP and Log Cabin Republicans

What is the history of this case?

The highly contentious policy banning openly gay, lesbian, and bisexual individuals from serving in the United States military ('Don't Ask, Don't Tell') has been extensively debated since it was first enacted in December 1993. Since that time, many challenges to the policy have been made, but the case that has garnered the most attention is this one, filed in 2004 by the Log Cabin Republicans, that directly challenges the constitutionality of the policy. Specifically, the lawsuit seeks a ruling that the policy violates constitutional protections of due process and freedom of speech.

Why did Log Cabin Republicans choose to bring this case?

As we have said all along, we believe the 'Don't Ask, Don't Tell' policy violates constitutional protections of due process and free speech. This country is now fighting two wars, and gay and lesbian members of our Armed Forces are serving their country honorably and dying on the battlefield even as the U.S. military officially continues to bar them from service. It's outrageous that we even have to debate this issue, especially at a time when our military is stretched so thinly. Indeed, the fact that we had to sue the government - and work to overcome roadblock after roadblock - to try to convince the Obama Administration to abandon this policy should be an outrage to all those who seek fairness in this case.

Where will the trial take place and why?

This case was filed in the U.S. District Court for the Central District of California. When the judge in Los Angeles originally assigned to the case retired, the court assigned the case to Judge Virginia A. Phillips, who happens to preside at the court's branch in Riverside, California.

How is this case different from all the other 'Don't Ask, Don't Tell' cases that have been filed over the years?

This case is the only case in the country that challenges the constitutionality of the 'Don't Ask, Don't Tell' policy. Other prior, 'Don't Ask, Don't Tell' cases have been brought on behalf of individual service members, whereas our case goes right to the heart of whether this policy itself is legal. Specifically, the lawsuit seeks a ruling that the policy violates constitutional protections of due process and freedom of speech.

President Obama, Secretary or Defense Gates, and other top figures in the Obama Administration have all said they favor repeal of 'Don't Ask, Don't Tell'. Yet, the Justice Department is fighting this lawsuit which would achieve exactly that outcome. Are you saying that, in this case, the US government is at odds with the President and the Secretary of Defense?

Yes, exactly. Even as President Obama says he is committed to repealing 'Don't Ask, Don't Tell', his Justice Department has chosen to do just the opposite in this case. In one instance, the President himself said that 'Don't Ask, Don't Tell' "weakens our national security." So, in Court, we asked the government to admit that the President made this speech on the date he made it, and they admitted that. We asked them further to admit that the President used those words and they also admitted that. And, then, we asked the government to admit that 'Don't Ask, Don't Tell', using the President's exact words, "weakens our national security." But, the government refused to do that. It objected on spurious grounds.

We filed a motion with the Court to compel the government to answer that question, and we won. The government then appealed. We won again and finally the government had to answer the question. In doing so, the Justice Department denied that 'Don't Ask, Don't Tell' "weakens our national security" - exactly the opposite of what the President had said.

As the legislative approach moves forward, does the President have any other options for ending 'Don't Ask, Don't Tell' more quickly?

The military could opt to enforce the law differently. The US military doesn't need to be kicking people out. There are other ways to enforce this.

The need for a faster solution is quite pressing since, while many believed that the election of President Obama would help put a swift end to 'Don't Ask, Don't Tell', such change has not materialized. Indeed, hundreds of people have been discharged from our armed forces under the policy since he took office and thousands more have either not re-enlisted or not enlisted this year. Meanwhile, his lawyers at the Justice Department continue to fight the Log Cabin Republicans' lawsuit in court and have refused Log Cabin's proposal for a moratorium on discharges.

With Congress poised to enact repeal of 'Don't Ask, Don't Tell', why is Log Cabin Republicans still pursuing this case?

We believe our case can work in concert with the legislative process that is now underway. We must remember that the legislation is conditional upon the House and Senate passing their own bills, and then coming together in a conference committee to work out the details of a final bill that will then have to pass both chambers. The Senate already has members on record as opposed to the repeal of 'Don't Ask, Don't Tell', and the November elections could add to that opposition. Thus, there is no better than a 50-50 chance of passage at this stage. Moreover, if Congress succeeds in passing a bill this year, repeal would become effective at an indeterminate date in the future.

This case, on the other hand, is now entering its final phase after some six years in litigation. The judge has repeatedly ruled in our favor and granted Log Cabin Republicans the legal standing to bring this case that the government has fought for so long to deny. With a possible trial date of July 14th fast approaching, we believe we are poised to bring a speedy and definitive end to this policy. Indeed, depending on how the judge rules, such repeal could become effective immediately - a stark contrast to the approach Congress is considering. Some five years after this case was first brought, we are now within striking distance of ending this misguided policy.

What importance, if any, do you attach to the June 3 court order?

We view this as very important news. In addition to setting our case for trial on July 13, the court order is significant in other ways. For one, it indicates that the court will deny what is left of the government's motion for summary judgment. It also shows that the court appreciates the delays we have encountered throughout the case. And lastly, it suggests that the judge wants to rule on the case without regard to the pending legislation in Congress.

What importance, if any, do you attach to the July 7 court order?

This is the eleventh straight court order in our case's favor - the court's written order denying the government's motion for summary judgment on the merits. The court explicitly adopts the Witt standard, as we expected, which places a tremendous burden on the government at this stage of the case, since it intends to put on no evidence other than the 1993 Congressional Record. On the first amendment claim, besides denying the motion, the court explains, in a clearer fashion than ever before, how we can prevail on that claim. Lastly, court considers and rejects the government's request for a stay, pending the outcome of the legislation in Congress.

What are the arguments in favor of Log Cabin's position?

• No objective studies, reports, or data, either pre- or post-enactment, support the rationality of DADT and its congruence to Congress's stated objectives;
• At the time of the enactment of DADT, the only objective studies showed that DADT would not further unit cohesion and troop morale but those studies were either ignored by or hidden from Congress;
• Sexual orientation is not germane to military service; many homosexuals have served our country bravely;
• The enactment of DADT was motivated by animus, prejudice, hostility, ignorance, or fear of homosexuals;
• The enactment of DADT was based on the private biases of influential leaders about homosexuals rather than military judgment;
• DADT is applied more frequently in time of peace than in time of war; indeed, the military has knowingly deployed openly homosexual members to foreign combat operations such as Afghanistan (ISAF) and Iraq (MNF-I);
• DADT has had a disproportionate impact on women, resulting in a higher rate of discharge;
• The privacy and sexual tension remarks by General Colin Powell did not apply to female service members;
• When DADT was enacted, some comparable foreign militaries, e.g., Canada, had already changed their policies to allow open service by homosexuals without any negative impact on unit cohesion, a factor ignored by Congress;
• Many comparable allied foreign militaries have, both before and since the enactment of DADT, changed their policies to permit open service by homosexuals without any negative impact on unit cohesion;
• U.S. service members train and fight side-by-side with openly homosexual members of the coalition armed forces of foreign militaries without any impact on unit cohesion and, in some instances, are commanded by openly homosexual officers from other countries, e.g., ISAF and MNF-I operations;
• Service members in non-combatant but critical occupations such as doctors, nurses, teachers, ophthalmologists, dentists, surgeons, lawyers, linguists, translators, intelligence analysts and others have been discharged under DADT;
• Open homosexuals are not allowed to serve in the U.S. Armed Forces but are allowed to work alongside their counterparts in the CIA, FBI, NSA, State Department, the Defense Department on the civilian side, and defense contractors where sexual orientation is no longer reasons of dismissal. Indeed, the Commander-in-Chief of the Armed Forces could be openly homosexual;
• DADT retains the threat of black mail and risk of compromising national security while it undermines military effectiveness, military readiness, unit cohesion and troop morale;
• DADT violates First Amendment rights;
• DADT impairs recruitment and retention in the military; indeed, the military currently has over 4,000 convicted felons in service while discharging a greater number of honest, patriotic homosexuals.

What evidence does Log Cabin intend to present at trial?

Log Cabin intends to offer the testimony of several witnesses who have been adversely impacted by the 'Don't Ask, Don't Tell' policy and the testimony of several leading experts in their respective fields on different aspects of DADT, as well as hundreds of documentary exhibits. Log Cabin expects all of their evidence to show that DADT is unconstitutional.