Dec 24, 2004  |  By: JOE CREA  | COMMENTS     

that they are asking a court to reverse their original decision with the primary argument they have offered is Lawrence vs. Texas,” Wolff said.

“The danger is that if the Ninth Circuit disagrees that Lawrence has changed things, it’s hard to predict how broadly it will reach in placing restrictions on Lawrence at a time when we ought to be focusing on implementing the broad implications of the Lawrence decision.”

Will court reverse itself?
Mark Agrast, senior vice president for domestic policy at the Center for American Progress and a longtime congressional staffer who worked on military issues, said that while Log Cabin has “the heavier burden” of the two lawsuits, it is not unusual for a court to reverse its previous rulings especially after a new Supreme Court ruling like Lawrence vs. Texas.

“For a court to say we are now going to follow precedent … I don’t think it would involve much back-tracking humiliation for the Ninth Circuit to reconsider in light of the Supreme Court ruling,” Agrast said.

Patrick Guerriero, executive director of the Log Cabin Republicans, defended the suit, arguing that any court case brought by a group is going to be scrutinized by experts.

“We will offer legal support, amicus briefs for SLDN,” Guerriero said. “We are committed to seeing the end of ‘Don’t Ask, Don’t Tell’ through our case or SLDN’s. The notion that people have time to spend critiquing other cases … that time would be best spent working on their cases. Our offices have been very disciplined not to engage in that.”

The SLDN lawsuit — Cook vs. Rumsfeld — challenges the prohibition on openly gay service members on privacy, due process, equal protection and free speech grounds.

Experts agree that the lawsuits are correct in challenging the military’s ban on privacy and equal protection grounds yet they say the First Amendment arguments are the weakest of the three.

“Courts are always going to be more likely to consider that the military environment can sometimes necessitate and put limitations on the way people speak,” Mazur said. “I think it is more difficult constitutionally of the military to restrict people for being who they are not what they say.”

Joe Crea can be reached at jcrea@washblade.com.