Procedural Posture

Constitutional challenge to the federal “Don’t Ask, Don’t Tell” Act (DADT) brought by Log Cabin Republicans, a civil society organisation advocating equal rights for gays and lesbians.

Issue

Whether DADT, which required the discharge of service members for same-sex sexual activity or for disclosing their sexual orientation, violated the right to privacy under the substantive due process clause of the Constitution, as well as the rights to freedom of speech and association.

Domestic Law

“Don’t Ask, Don’t Tell” Act.

Constitution of the United States, 1^st Amendment (Freedom of Religion, Press, Expression) and 5^th Amendment (Due Process).

Bowers v. Hardwick, United States Supreme Court, 1986 (upholding State law criminalising sodomy against constitutional challenge).

Holmes v. California National Guard, United States Court of Appeals for the 9^th Circuit, 1998 (holding that a State National Guard member could not be discharged for saying publicly that he was gay but could be excluded from any of the many positions in the Guard that required federal recognition).

Lawrence v. Texas, United States Supreme Court, 2003 (affirming that same-sex sexual conduct between consenting adults was part of the liberty protected by the substantive due process clause of the 14^th Amendment to the federal Constitution, and striking down Texas’ sodomy law).

Witt v. Department of Air Force, United States Court of Appeals for the 9^th Circuit, 2008 (applying a heightened level of scrutiny to a case involving the discharge of a military nurse and remanding to the district court for a factual determination of whether DADT significantly furthered the governmental interest in unit cohesion and whether a less intrusive means could have been used to further that interest).

Reasoning of the Court

In its first argument, the plaintiff organisation claimed that DADT violated its members’ right to privacy, protected under the substantive due process clause of the Constitution.

The Court briefly analysed the text of the challenged regulation, and identified three grounds for dismissal from the military. According to DADT, a service member would be discharged if he or she (a) had engaged in homosexual acts; (b) had stated that he or she was homosexual; or (c) had married or attempted to marry a person of the same biological sex.

The Court next stated that in order to be considered constitutional, DADT had to fulfil three conditions: (1) advance an important governmental interest; (2) significantly further that interest; and (3) be necessary to further that interest. Noting that the court in Witt had held that DADT advanced an important governmental interest and therefore fulfilled the first condition, the Court only assessed the fulfilment of the second and third conditions.

According to the defendants, the restriction furthered the important government interest in military readiness and unit cohesion. However, the defendants relied solely on the legislative history of DADT and the text itself to support their position. The plaintiff argued that DADT did not further these interests, and brought evidence to show that DADT caused the discharge of qualified service members despite troop shortages and the discharge of service members with critically needed skills and training. It also had a negative impact on military recruiting.

Furthermore, the evidence demonstrated that in times of war the military retained service members known to be homosexuals, despite DADT, or delayed their discharge until after they had completed their overseas deployments. According to the Court, if gay and lesbian members of the military had represented a threat to military readiness or unit cohesion, the defendants would not have continued to deploy them in combat. On the basis of this evidence, the Court concluded that DADT had not significantly furthered the Government’s interests. Rather, as the defendants themselves admitted on several occasions, DADT had harmed those interests. For the same reasons, DADT could not be considered to fulfil the third condition. It was not necessary for advancement of the Government’s interests.

The plaintiff further claimed that DADT violated its members’ rights to freedom of expression under the 1^st Amendment, because it was overly broad and amounted to a content-based restriction. Again, the Court started by assessing the standard of review applicable to 1^st Amendment challenges. Laws regulating speech based on content generally had to withstand intense scrutiny because of the fundamental importance of the rights involved.

The Court first dealt with the threshold question of whether or not DADT constituted a content-based restriction on speech. The principal inquiry for determining content-neutrality was “whether the government has adopted a regulation of speech because of [agreement or] disagreement with the message it conveys”. The defendants did not answer this question directly, but rather relied on previous decisions concerning DADT and freedom of expression, mainly on Holmes v. California National Guard. In Holmes, the court had found that DADT did not raise a freedom of expression issue. However, the Court noted that Holmes had been decided before Lawrence v. Texas and was “necessarily rooted” in Bowers v. Hardwick, which Lawrence overruled. The Court then analysed the text of DADT and noted that it did not prohibit service members from discussing their sexuality in general, nor did it prohibit all service members from disclosing their sexual orientation. Heterosexual members were free to state their sexual orientation, while gay and lesbian members were not. Therefore, the Court found that the Act, on its face, discriminated on the basis of the content of the speech. It then noted that, in keeping with an established rule of deference, regulation of speech in a military context would survive constitutional scrutiny if it restricted speech no more than was “reasonably necessary to protect the substantial government interest”. However, the Court held that DADT failed this test, since the sweeping reach of its restrictions on speech were far broader than was reasonably necessary to protect the substantial government interest at stake (military readiness and unit cohesion). As in the privacy challenge, the Court found that DADT served to impede military readiness and unit cohesion rather than to further these goals. Therefore, the plaintiff was also entitled to judgment on its claim for violation of constitutional guarantees of freedom of speech and to petition the government.

The Court held that the plaintiff had demonstrated that DADT violated the constitutional rights of its members and was therefore entitled to the relief sought: a judicial declaration that DADT violated rights to privacy and freedom of expression, and a permanent injunction barring its enforcement.

Postscript

The government applied for a stay of the decision until an appeal could be heard. The United States Court of Appeals for the 9^th Circuit Court granted an indefinite stay. In December 2010 the President signed into law a bill to repeal DADT. The repeal will take effect 60 days after completion of a certification process.

Log Cabin Republicans v. United States, United States District Court for the Central District of California (full text of judgment, PDF)