“Don’t Ask” Upheld
by Elaine Donnelly

Since December 2004, newspapers nationwide have followed a major lawsuit filed by the Servicemembers Legal Defense Network, challenging the 1993 law that excludes professed homosexuals from the military. The SLDN lawsuit, titled Cook v. Rumsfeld, was filed on behalf of twelve former servicemembers who were discharged when they announced their status as homosexuals.

On Monday, April 24, U. S. District Judge George A. O'Toole, Jr. dismissed Cook v. Rumsfeld with a 41-page opinion that demolished every argument made by the plaintiffs. It was a solid victory for the government attorneys defending the 1993 law.

Activists were counting on success for this litigation because it was the first to be filed after the 2003 Lawrence v. Texas decision of the Supreme Court. That controversial ruling overturned precedent and legalized private, consensual sodomy in all 50 states.

As we had predicted, the U.S. District Court in Cook v. Rumsfeld easily dismissed arguments that the Lawrence case could be used to bring down the 1993 law, which was passed after a full and open debate.

With meticulous logic, the Court upheld several key principles. To summarize:

• The Courts rightly defer to Congress in the making of policy regarding the military because that authority is invested in Congress by Article 1 of the U.S. Constitution.

• Individual plaintiffs who object to the 1993 law (Section 654, 10 U.S.C.) claim that their own circumstances differ from those assumed by Congress. But individual circumstances are not enough to overrule a rational decision made by Congress after extensive debate and consideration of opinions on all sides of the issue. (The law was passed with overwhelming, veto-proof, bi-partisan majorities.)

• Enforcement of the exclusion law is based on conduct, and a statement acknowledging one's status as a homosexual does not violate the First Amendment.

• Nor does the law violate the plaintiffs' rights of Equal Protection. Congress has the constitutional right to set conditions for military service, and terms of the law are rational and related to a legitimate governmental interest.

• The Lawrence v. Texas decision did not establish sodomy as a "fundamental" liberty interest, as claimed by the plaintiffs. Nor did the standard of review in Lawrence v. Texas justify repeal of Section 654, a law that sets conditions for the military.

• There is no controlling precedent to support the claim that homosexuals generally, let alone professed homosexuals in the military, constitute a "suspect class" for equal protection purposes.

• Dismissal of the case is based on deference and the "paradigm of judicial restraint," which assumes plausible reasons for actions of Congress.

Quoting language in Section 654, the Court stated,

"The legitimacy of the end Congress sought to serve - maintaining effective military capability by maintaining 'high standards of morale, good order and discipline, and unit cohesion,' cannot be doubted."

According to Campbell University Law Professor William A. Woodruff, the trial judge relied upon well-settled legal principles and wrote an opinion that will be difficult to overturn on appeal. The SLDN has not decided whether to appeal to the First Circuit Court of Appeals.

The Center for Military Readiness will continue to defend the 1993 law and reasons why it was passed. More information is available on the CMR website, www.cmrlink.org, under Issues/Gays in the Military.

This decision is very good news for the military. Judge O'Toole noted that it would not be appropriate for the Court to "conduct a re-weighing of the evidence that was before the legislative decision-makers" in 1993. He added, however, that the law could be repealed at any time by a future Congress.

Legislation to repeal the ban on gays in the military has been sponsored by Rep. Marty Meehan (D-MA) and several other members of the House. That effort has gone nowhere so far, but now that the activists have suffered a serious setback in Court, they will renew their efforts in Congress. It takes time and money to keep providing accurate, comprehensive information on why the law was passed and why it should be retained but CMR remains determined to continue blocking these efforts.

Elaine Donnelly is President of the CENTER FOR MILITARY READINESS, Post Office Box 51600, Livonia, MI 48151

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