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Log Cabin Republicans File Suit to Overturn Military's Don't Ask, Don't Tell Policy

Turning Over Policy Vital to National Security Interests Say Lawyers

October 12, 2004

(Washington, DC) – Lawyers on behalf of Log Cabin Republicans are filing suit this morning against the United States government seeking to overturn the military's "Don't Ask, Don't Tell" policy, which requires the discharge of gay and lesbian service members. Log Cabin Republicans v. United States of America will be filed in the United States Federal District Court for the Central District of California.

Log Cabin is filing the suit on behalf of its gay and lesbian members currently serving in the United States Armed Forces. "Public opinion, the experience of our allies, and the national security interests of our nation all lead to the inescapable conclusion that gays and lesbians should be allowed to serve openly and honestly in our military," said Log Cabin Republicans Executive Director Patrick Guerriero.

"A lawsuit should not be necessary, when public opinion overwhelmingly favors gays and lesbians serving openly and honestly. A lawsuit should not be necessary when the experience of our allies in the war on terror, including Great Britain, Israel and Australia, all allow gays and lesbians to serve openly and honestly. A lawsuit should not be necessary when our military has lost thousands of needed military personnel under this policy. However, under these circumstances, where we are a nation at war fighting a global war against terrorism, we can no longer sit by and wait for our elected officials to find the political courage to do the right thing," said Guerriero.

The suit asserts that the "Don't Ask, Don't Tell" policy imposes a discriminatory set of rules on gay and lesbian members of the Armed Forces in violation of their constitutional rights of due process, freedom of speech, and equal protection. The challenge requests a declaration that the policy is unconstitutional, and a preliminary and permanent injunction enjoining the government from enforcing the policy.

Global law firm White & Case LLP is representing Log Cabin Republicans on a pro bono basis. The White & Case team is being led by Dan Woods and Marty Meekins from the Firm's Los Angeles office.

"Previous challenges to the policy failed mainly because Bowers v. Hardwick allowed governmental criminalization of homosexual conduct, but recent Supreme Court decisions demand an immediate reconsideration of the policy under the U.S. Constitution, which is why White & Case was so interested in being involved," said Woods, head of White & Case's litigation practice in Los Angeles.

Woods said those key decisions include Romer v. Evans, where in 1996 the Supreme Court held that government-sponsored discrimination against gay and lesbian Americans could not be justified solely by animus or "morality." In 2003, the Court overruled Bowers in Lawrence v. State of Texas, and held the constitutional fundamental right to privacy includes the right for gay and lesbian Americans to engage in private, intimate relationships without State interference. Finally, the Supreme Court most recently limited the Defense Department's discretion to infringe upon Constitutional due process rights in Hamdi v. Rumsfeld, which held that enemy combatants, even in wartime, must be afforded due process rights.

"These decisions require a reexamination of the reasoning employed in prior decisions upholding the 'Don't Ask, Don't Tell' policy, and they compel a finding and declaration by the court that the policy violates the Constitution," added Woods.

White & Case lawyers are well versed in the constitutional issues involved with the service of gays and lesbians in the United States Armed Forces. Last year, White & Case helped draft an amici brief submitted by the Log Cabin Republicans in support of the petitioners in the Supreme Court's case of Lawrence v. State of Texas, arguing successfully that an American's right to liberty under the Due Process clause includes the right to engage in private consensual conduct without governmental intervention. In the early 1990s, the Firm also successfully represented Keith Meinhold in the landmark decision in Meinhold v. U.S. Department of Defense, which challenged the military's previous prohibition of gays and lesbians in the military.

"This case is fundamentally about correcting a misguided governmental policy based on prejudice towards gay and lesbian Americans. A decade of experience with the policy demonstrates that it actually weakens our national defense," said Meekins. "It seems especially offensive to compel members of the Armed Forces, who fight to protect our liberty, to deny them their constitutional right to freedom of speech and to engage in private, intimate relationships."

Guerriero said that he is confident that this challenge will result in the end of this discriminatory policy and ultimately a stronger U.S. military because highly trained, dedicated gay and lesbian soldiers will no longer be forced out simply because they disclose their sexual orientation.

White & Case LLP is a leading global law firm with nearly 1900 lawyers practicing in 38 offices in 25 countries. Global Counsel consistently ranks White & Case among the top global law firms.