Dec 24, 2004  |  By: JOE CREA  | COMMENTS     

A lawsuit brought by the Log Cabin Republicans challenging the military’s ban on gay service members is the subject of criticism by legal experts who assert that a lack of a specific injured party and the hostile location in which the lawsuit was filed complicate its chances for success.

The Log Cabin suit is being brought on behalf of members of the gay Republican group who are currently serving in the military.

Another suit challenging the U.S. military’s “Don’t Ask, Don’t Tell” policy was brought earlier this month by the Servicemembers Legal Defense Network on behalf of 12 gay men and women expelled from the military under the gay ban.

While previous lawsuits challenging the military’s policy have upheld the ban put in place by the Clinton administration and Congress, those decisions were issued before last year’s historic Supreme Court finding in Lawrence vs. Texas, which struck down state sodomy laws, and a related decision earlier this month striking the sodomy ban from the Uniform Code of Military Justice.

The SLDN plaintiffs, all of whom the agency says served in one capacity or another in the war against terrorism, are challenging the 11-year-old ban and seeking re-instatement to the U.S. armed forces.

Experts suggest that a lack of identifiable plaintiffs in the Log Cabin suit poses a major problem.

“When you bring a lawsuit, you need to be the right plaintiff to bring the lawsuit, and you need to show that you’ve been directly affected by the law you are challenging,” said Tobias Barrington Wolff, a law professor at the University of California, Davis, who consulted with SLDN before the group filed its lawsuit.

“LCR must demonstrate it is an important plaintiff. It needs to convince the courts that it is appropriate to allow them to prosecute this claim. The court might simply say, ‘You are not the right plaintiff; go back and find an individual soldier.’”

Diane Mazur a professor of law at the University of Florida, said that lawsuits in general, like the SLDN suit, are greatly strengthened by having identifiable plaintiffs.

“You are always more persuasive when you have people in front of you,” Mazur said. “Here are people [in the SLDN lawsuit] who are no different from any other member of the volunteer force, and yet we are telling them they can’t serve. One of the reasons Lawrence was decided the way it was is because the case had real people who were arrested.”

Log Cabin dismisses criticisms
Log Cabin Republicans attorney Martin Meekins, whose Los Angeles law firm White & Case filed the suit in October, dismissed such criticisms, noting that the Log Cabin plaintiffs do exist but are not willing to leave the military before bringing suit. He added that critics of the Log Cabin suit “have some sort of interest” in criticizing their case.

“These are the same people who are not very happy that our client has taken a leadership role on an issue that is clearly important to Log Cabin Republicans,” Meekins said. “Our client has done a great thing. For those who want to denigrate their efforts, … I can’t speak to that. I think that people who wish to say these things are clearly false. It’s unfortunate because we should all be so lucky to have two good law firms leading two great cases.”

Another legal hurdle for Log Cabin concerns the jurisdiction in which the suit was filed, the Ninth Circuit Court of Appeals.

Bridget J. Wilson, an attorney at Rosenstein, Wilson & Dean in San Diego, who has done military law work, said that the Ninth Circuit prior to “Don’t Ask, Don’t Tell,” has issued a string of “highly technical decisions made with regard to a single individual granting very little protections to gay people as a class.”

In rulings prior to Lawrence vs. Texas, that circuit has upheld “Don’t Ask, Don’t Tell.” While the Ninth Circuit rulings upholding “Don’t Ask, Don’t Tell” were wrong, getting a court to reverse its previous ruling will be difficult, Wolff said.

In the worst case scenario, Wolff said, the Ninth Circuit rules in favor of “Don’t Ask, Don’t Tell” and narrowly defines Lawrence vs. Texas in respect to military justice for gays and lesbians.

“One of the challenges that the LCR suit faces is ...