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JOE CREA
Friday, December 24, 2004
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 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 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.”
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.
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