By Donald G. Rehkopf
The Daily Record Newswire
On Oct. 12, a federal judge held that the “Don’t Ask, Don’t Tell” law was unconstitutional.
The talking heads, political pundits and blogosphere erupted across the spectrum. Most commentators never got past the headlines, however, since analyzing an 84-page judicial decision isn’t “news.”
The lawsuit’s plaintiff was the nonprofit Log Cabin Republicans, whose mission includes “work[ing] within the Republican Party to advocate equal rights for all Americans, including gays and lesbians.” (see http://online.logcabin.org/about/mission.html).
After almost six years of pretrial wrangling, an eight-day trial was held in July, resulting in the recent decision that DADT is unconstitutional. While space limitations for this column preclude an in-depth analysis of the trial, the substance of the plaintiffs’ case is encapsulated by one witness.
Jenny Kopfstein, a physics major and U.S. Naval Academy graduate was assigned to the USS Shiloh, a guided missile cruiser with a crew of 370, as its ordnance officer in 2000, after she was commissioned.
Four months into her assignment, she wrote a letter to her commander, Capt. Robert Liggett, advising him that she is a lesbian. She said she did not want him hearing rumors or learning of her sexual orientation from another source. Liggett did not initiate discharge proceedings under DADT at that time.
On Sept. 11, 2001, the ship’s captain chose Kopfstein to be “officer of the deck” after the New York City and Pentagon attacks as the Shiloh was ordered to sea. A year and a half later, after multiple deployments, winning a prestigious ship-handling competition and in spite of positive testimony from Liggett and his successor-in-command, the U.S. Navy discharged then-Lt. Kopfstein pursuant to DADT.
She was one of many gay and lesbian former servicemembers who testified for the Log Cabin Republicans. Notably, all were witnesses — not named plaintiffs.
Congress in 1993, knowing then-Secretary of Defense Aspin was revisiting the department’s policy on homosexuals serving in our military, took a preemptive strike and passed DADT into law, codified at 10 U.S.C. §654. The Log Cabin Republicans filed suit in 2004, alleging the DADT Act was unconstitutional as it violated the substantive due process rights under the Fifth Amendment and the rights of free speech and petitioning the government for redress under the First Amendment of U.S. servicemembers.
DADT’s preclusion of openly gay servicemembers from our military triggers the gauntlet of emotional, philosophical and stereotypical reactions. That, in turn, has prompted equally as diverse coverage in the mainstream media and reactions from the populace, politicians and interest groups. Unlike my normal role as an advocate, my purpose in this space is to offer a brief legal analysis of the litigation and the court’s ultimate decision.
To put the 84-page decision into perspective, beginning with the defense provides significant insight into the ultimate holding. This was not a “Court Gone Wild” or a jurist with an agenda but a scholarly constitutional analysis of substantive due process and First Amendment issues. It was preceded by a decision of the U.S. Court of Appeals for the Ninth Circuit in Witt v. U.S., 527 F.3d 806 (Ninth Cir. 2008) (the government did not appeal), which remanded a DADT case for a trial to answer whether DADT as applied (versus facially) was unconstitutional. Three weeks before the Log Cabin Republicans decision, a federal judge in Seattle held DADT to be unconstitutional as applied to Witt, and ordered her restored to duty.
The government’s defense was both anemic and virtually non-existent, based primarily on the legislative history of the DADT Act, i.e., “evidence” from 1993 that — at best — was speculative then, and unable to counter the Log Cabin Republicans’ evidence and testimony. Tactically, they boxed the government into a corner from which there was no escape.
The plaintiff challenged DADT as violative of its member’s substantive due process rights and First Amendment rights, as noted previously. The government’s evidence consisted primarily of the 1957 “Crittenden Report,” which the court noted “is not evidence that discharge of homosexual servicemembers significantly furthers government interests in military readiness or troop cohesion.” (Decision at 36).
Two other reports, one from 1988 and the other from 1993, were tendered as defense evidence — neither supported the inference that one’s sexual orientation has (or had) any relevance to military service.
As a litigator, the weakness of the government’s position perhaps is best evidenced by their testimonial evidence. This was testimony 17 years prior to the trial — not before a court — before the Senate Armed Services Committee considering the pending DADT legislation.
If ever there was “shoot yourself in the foot” testimony, this was it. The court noted that one witness [Dr. Korb] testified that foreign militaries and “domestic law enforcement,” which had “integrated homosexual” members, suffered no ill-effects.
Gen. Colin Powell’s 1993 testimony before the Senate committee was the government’s “best evidence.” But, the continued relevance of 17-year-old Congressional testimony was de minimis as earlier this year, Powell publicly changed his mind and said DADT should be repealed. That obviously did not bolster Powell’s credibility as a witness, and probably explains why the government did not call him as a live witness at trial.
The legal “icing on the cake” however, came from specific responses to Rule 36, F.R.Civ.P., Requests for Admission submitted by the plaintiff. As a litigator, regardless of on which side of the courtroom we sit, the statements of our respective clients not infrequently haunt us.
Here, the court focused on two separate admissions. The first was a statement by the commander in chief from Jan. 29, 2009, that “reversing [DADT] is the right thing to do [and] is essential for national security.”
Yes, I acknowledge that could simply be political hyperbole. But a statement by Adm. Mike Mullen, chairman of the Joint Chiefs of Staff, affirming his Feb. 2, 2010, testimony before the Senate Armed Services Committee, sealed the decision when he said, “allowing homosexuals to serve openly is the right thing to do. Comes down to integrity.”
When the nation’s highest ranking military officer comes to that conclusion publicly, DADT was sealed. It was not the decision of an activist jurist; it was not the act of a judge with a political agenda; and it was not an act of a court seeking to placate political constituents. It was a decision based on the relevant evidence submitted during a litigated trial — no matter whether one agrees with the outcome.
The epitaph of Log Cabin Republicans v. U.S., is not the fate of DADT. It is that the American taxpayer/citizen, should not lose the experience and service of an Air Force major with 13 years’ experience — including three tours in Iraq — termed “the best supervisor” and “excellent officer” or the winner of a Navy ship steering competition, or an Air Force loadmaster with 61 combat missions and two air medals, and the many other servicemembers discharged from our military under DADT. Our national security needs such talent and experience.
That is my opinion. But, the court’s decision is what counts.
Donald G. Rehkopf Jr. is an attorney at Brenna, Brenna & Boyce PLLC, in Rochester, New York, and a retired USAFR JAGC lieutenant colonel with more 26 years of military service, both before and after DADT was passed. His service included defending members for being homosexual. He was appointed by commanders to investigate DADT cases and frequently advised commanders on both the DADT law and policy. The views expressed herein are his own and not that of any office, organization or governmental entity.
