DADT Ruling - Why the Government Lost

A guest post at Towleroad by Ari Ezra Waldman, a young attorney and law professor, looks at the ruling striking down DADT this past week. As was the case in Perry v. Schwarzenegger, whenever proponents of anti-gay policies are faced with having to produce concrete, objective evidence in court - as opposed to mere opinion based on religious belief and religious based prejudice - they crash and burn. It's the same thing that happened in the marriage ruling in Iowa last year. In a secular society religion does not hold water as a basis for discriminating against other citizens by the government. The guest post walks through this process and how the burden of proof plays out in these cases time and time again. Once the challenger makes the case that unlawful discrimination is occurring without a rational outward justification, the burden shifts to those who support the bigoted law or policy. This is why the courts are more effective in overturning anti-gay laws time and time again as compared to the political process. Political grandstanding, reciting slogans that lack supporting proof, biased fear mongering and demagoguery simply do not work when faced with rules of evidence and burdens of proof. And this is why the Christianists disingenuously scream so loudly about "activist judges" who force them to ultimately concede that only religious based discrimination justifies anti-gay policies. Here are highlights from the guest post:
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Plaintiffs argued first that DADT violated their substantive due process rights, identified in Lawrence v. Texas, associated with free expression, belief and "intimate conduct". Judge Phillips stood on the shoulders of Lawrence and Witt v. Department of the Air Force, the latter of which found that DADT implicates the liberty interest identified in Lawrence and thus "is subject to heightened scrutiny." (p49). So, in order to justify DADT's discrimination, the government had to show (1) an important government interest (2) furthered by the policy by (3) an intrusion on liberty necessary to further that interest. In other words, the government had to have a pretty good reason for DADT and that DADT actually achieved its goal.
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The government could not do that. The policy's justifications -- military readiness and unit cohesion -- may be important government interests (that was decided in Witt), but the policy did not advance those goals. . . She [Judge Phillips] also found testimony from current and former service members and military commanders who saw first hand how the discharge of needed personnel actually hindered military readiness.
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Next, the plaintiffs argued that DADT violated their First Amendment rights. That's a new one, right? Not so much. It is an argument that has been kicking around for a while, but the Log Cabin Republican legal team deserves credit for bringing such solid evidence to trial. Plaintiffs argued that DADT was a so-called "content-based" restriction on speech, i.e., it restricted speech merely because of the subject of that speech. That is, while straight service members can talk freely about their heterosexuality, gay service members cannot discuss their homosexuality simply because discussion of homosexuality, as grounds for dismissal, is off limits if you want to keep your job. That is a content-based restriction and, therefore, under the First Amendment, DADT would normally have to meet strict scrutiny.
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Therefore, the policy had to be "reasonably necessary to protect the substantial government interest" (p82). DADT could not even meet that lower standard, however. DADT represents a broad restriction on speech. It not only prevents service members from saying, "I am gay," but it also chills discussion of one's social life, prevents gay service members from spending social time with their comrades and makes it impossible to respond to mundane "What did you do this weekend?" questions without violating the honor code. The sweeping nature of DADT's restriction on speech made it unreasonable and unnecessar
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Declaratory judgments and injunctions based on facial challenges to a law can have national effect when issued by a single district court. There is some uncertainty here, but after consulting an expert in the field, I am persuaded that Judge Phillips decision could be implemented nationally. Normally, when a federal district court has jurisdiction over a particular person, an order deciding his case applies to that person wherever he is in the country. In other words, if a court enjoins me from watching Family Guy and has jurisdiction over me, that ruling would apply to me no matter where I hook up my television. Also, this case is a facial challenge to a statute, which means that the LCR was challenging DADT as unconstitutional no matter its application, no matter to whom it applies and no matter where it applies. Plaintiffs argued that the law was unconstitutional "on its face" not "as applied" to a particular person living in California. Therefore, the ruling could have national reach.
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For the First Amendment claim, greater deference to the military is playing a role. Civilian courts are not experts in the unique facets of military life and, therefore, military policies receive great deference. The values of obedience and order are not always salient values in the civilian world, but are essential for military success. But even under the lower reasonableness standard, DADT could not survive. In fact, the evidence offered at trial showed that the policy was hindering military readiness at every turn.