Dispatches from the Creation Wars

Law Profs Brief in DADT Case

I wrote the other day about a brief filed by several prominent law professors in a case seeking to overturn the Pentagon’s “don’t ask, don’t tell” (DADT) policy. Prof. Akhil Amar, in my opinion one of the finest legal scholars in the country, was kind enough to send me a copy of that brief. This case is called Cook v Rumsfeld, et al, and it was dismissed at the district court level and is now on appeal. These scholars make the powerful and obvious argument that DADT violates the first amendment:

By its very terms, the statute subjects gay, lesbian and bisexual servicemembers — and only them — to immediate sanction if they speak about their sexual identities. That prohibition applies “24 hours each day beginning at the moment the member enters military status and not ending until that person is discharged or otherwise separated from the armed forces,” “whether the member is on base or off base, and whether the member is on duty or off duty.” Id. ยงยง 654(a)(9)-(11) & (b)(2). The speech restriction is “pervasive” (in the statute’s own words), applying both to public discourse and to private conversations with friends and family. Id. The policy is universally referred to as “Don’t Ask, Don’t Tell” and it lives up to its name: Members of the armed forces are regularly discharged solely because they “tell” by speaking honestly about their sexual identities. Yet the district court erroneously concluded that the First Amendment is not even implicated by the military policy — that no constitutional scrutiny is required — because “Don’t Ask, Don’t Tell” does not restrict “speech.”

They also make the ancillary point that the statute not only compels speech, it compels dishonest speech:

Moreover, the policy necessarily compels gay servicemembers to affirm a false identity by forcing them to pretend that they are straight. It thereby offends a fundamental right of personal autonomy that the Supreme Court has found the First Amendment to protect.

They further make the argument that this restriction distorts the political process by not allowing those most affected by the law to speak out against it:

The question of whether these special restrictions are necessary and workable, or whether instead they are counter-productive and harmful to military readiness, are matters of urgent public concern. Yet the very gay and bisexual servicemembers who are subject to these restrictions are also prohibited from identifying themselves as the targets of the regulation. We are aware of no other law in America today that regulates a group of citizens and then prohibits those very citizens from identifying themselves as the regulated population and speaking up on their own behalf.

The impact upon public debate is obvious. No one else can adequately describe what it is like to serve under “Don’t Ask, Don’t Tell” in America’s ongoing military deployments. No one else can put a human face on the continuing cost to the tens of thousands of gay, lesbian and bisexual servicemembers who must live under the policy every day. Even now, as Members of Congress seek support for a bill to repeal “Don’t Ask, Don’t Tell,” see H.R. 1059, The Military Readiness Enhancement Act of 2005 (introduced 03/02/2005), gay servicemembers are prohibited from identifying themselves to the electorate to speak on the bill’s behalf. Of course, heterosexual servicemembers are free to speak about whether gay people should be allowed to serve openly in the military, and they do so regularly. The policy silences only one point of view: the viewpoint of active-duty gay, lesbian and bisexual servicemembers. There is no greater threat to First Amendment values than a law that skews political debate in this manner. As Justice Scalia has written, government may not “license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensberry rules.” R.A.V. v. City of St. Paul, 505 U.S. 377, 391 (1992).

Nice use of Scalia to make the point, since he will likely be on the other side if this case reaches the Supreme Court. And nice use of the following example that I was unaware of:

And the censorial impact of “Don’t Ask, Don’t Tell” does not stop at debates about the policy itself. The statute reaches out to distort every political debate that might involve gay servicemembers. Consider the case of Representative Steve May.

From 1999 to 2002, May, a gay man, was a member of the Arizona State House of Representatives and a first lieutenant in the Army Reserves. In February 1999, while on inactive reserve status, Representative May gave a speech on the floor of the Arizona House in which he urged his fellow lawmakers to reject a bill that would have prohibited Arizona state agencies from extending domestic partner benefits to gay and lesbian employees. May’s remarks were prompted by an antigay speech given by another legislator, and he couched his opposition to the bill in personal terms, offering himself as a counterexample to the picture of “homosexual promiscuity” painted by his opponent and describing the impact that the proposed law would have upon him personally.

Two months later, May was called back to active reserve status and scheduled for overseas deployment. Shortly thereafter, May’s speech on the floor of the Arizona House came to the Army’s attention through an anonymous complaint. The military conducted an investigation, read the transcript of May’s remarks, and initiated discharge proceedings against him for speaking about being gay to his legislative colleagues. May ultimately negotiated a voluntary separation from the Army.

When a federal law reaches onto the floor of a state assembly to penalize an elected official for expressing a disfavored viewpoint in a legislative debate, the First Amendment is placed in serious jeopardy. “Don’t Ask, Don’t Tell” does not just restrict speech within military spaces or among military personnel. It silences gay servicemembers in every walk of civilian and political life. Steve May’s case is remarkable only in that he refused to be silenced when his voice was needed. For that and that alone, he was discharged.

The brief makes another very interesting argument. It begins by stating the obvious: applied in any other context, no court in the nation would uphold similar restrictions. If a statute was passed that forbid any gay person from telling another person that they’re gay, there is no doubt at all that such a restriction would be unconstitutional. Thus, the only relevant question for the court is whether the fact of military service justifies what clearly is a violation of the first amendment.

The courts have historically given the military far more latitude and leeway in terms of constitutional protections than they’ve given to government actions on civilians, and no one doubts that this is necessary. There are some functions of military action that simply could not be performed under strict constitutional rules. And since we have a volunteer army, no one is forcing them to be agree to be bound by tighter rules than the rest of us do in civilian life. But the constitution is not simply inapplicable to military personnel; the restrictions on the speech and actions of soldiers still must meet be narrowly tailored and justified.

The brief looks at the various precedents regarding free speecy by military personnel, including Parker v Levy and Brown v Glines, and it notes:

While the Supreme Court has afforded the government additional deference in matters of military policy, the Court has never upheld a prohibition on the speech of military personnel as restrictive as “Don’t Ask, Don’t Tell.” Even in those First Amendment cases where it has emphasized “military deference” most strongly, the Court has taken pains to explain how carefully the government has circumscribed military speech restrictions, thereby enabling the restrictions to avoid the most serious free speech problems. The “Don’t Ask, Don’t Tell” policy is circumscribed in none of these ways and goes further in restricting the speech of servicemembers than the Court has ever permitted.

In particular, it notes that in both rulings the Court was explicit in noting that such restrictions could only be upheld when they are necessary for maintaining “good order and discipline”, something missing entirely from DADT:

Such restraint could hardly be more completely absent in the case of “Don’t Ask, Don’t Tell.” Under the express terms of the policy, the most “indirect” and “remote” statements of gay identity with no demonstrable impact upon “good order and discipline” — indeed, even those statements that demonstrably have no such impact, such as thoughts written in a diary or private statements by a bisexual soldier to his wife — result in immediate separation and discharge. There is no limit upon the time (the policy applies “24 hours each day”), the place (“whether the member is on base or off base”) or the activity (“whether the member is on duty or off duty”) in which the speech of gay soldiers may be selectively punished.

The brief also notes that there are other clear restrictions on the court’s willingness to defer to the military:

Equally important, the Court has only deployed its “military deference” doctrine in cases where serious impacts upon protected speech were confined to specifically military settings: petitions or protests on a military base, see Glines, supra; Greer v. Spock, 424 U.S. 828 (1976), speech at a military workplace, see Goldman v. Weinberger, 475 U.S. 503 (1986); or speech between officers and subordinates, see Parker, supra. In cases where a military law or regulation has restricted speech in civilian spaces, the Court has invoked no military deference doctrine at all. For example, in Schacht v. United States, 398 U.S. 58 (1970), the Court struck down a law that prohibited the wearing of military uniforms in a civilian theatrical production if the production would “tend to discredit” the military. While the law was ostensibly justified by military priorities (such as concern over public regard for the armed forces), the law’s impact upon speech was felt in the civilian realm, and the Court unanimously invalidated the statute’s prohibition without any hint of military deference…

As the case of Steve May makes dramatically clear, although the “Don’t Ask, Don’t Tell” policy targets the speech of servicemembers (even those who, like May, were on inactive status at the time), it regulates speech with and to civilians, and its unrestrained scope has profound impacts upon speech in the civilian world. By removing the voice of openly gay active-duty servicemembers from every facet of American life, the policy seriously distorts public debate and the political process on matters of vital national importance. The Supreme Court has never applied the “military deference” doctrine to such a case.

All in all a very interesting brief that makes very compelling arguments.


  1. #1 David C. Brayton
    December 4, 2006

    Any idea why it has taken nearly a decade for this issue to reach the courts?

  2. #2 Jason
    December 4, 2006

    Thanks for providing this interesting information. Might you host the brief somewhere where we might read the rest of it?

    Also, what is the briefing schedule? A link to this at the Supreme Court’s website would add to this article greatly.

    Good info post.

  3. #3 Ed Brayton
    December 4, 2006

    I don’t know the schedule for briefing. The only reason I haven’t posted the full brief myself is that the version that Prof. Amar sent me was not the final formatted version, and the one I have is stamped all over with “attorney client privelege work product.” I’m sure the final version will appear on the web soon.

  4. #4 noself
    December 4, 2006

    Great post and great brief definitely.

    But I’m fairly skeptical if Greer v. Spock can be so easily dismissed. The base commander did frankly admit that he was going to engage in viewpoint discrimination insofar as it pertained to military morale etc. in allowing people to disseminate information (including putting things on bulletin boards).

    But I think it would be fascinating to see how the SCOTUS deals with the part about compelled speech.

  5. #5 SharonB
    December 4, 2006

    Particularly onerous is the underlying rebuttable presumption that the speech (I am gay) equates to an admission of guilt (I have committed an UCMJ offense – sodomy). There is no allowance that a person stating that they are gay may be celibate.

    Not that that should be the only formulation, viz., that a Service Member will not be discharged for stating they are gay, if they also affirm their celibacy. No such standards are levied on heterosexuals. (Equal protection)

    The DADT policy is unconstitutional on so many grounds. However, it would be a shame if the result of a successful challenge was to revert to the more draconian policy that preceded it, in order to eliminate the free-speech restrictions.

    The entire logic behind disallowing GLBT service members, is entirely bereft. It shares many of the avowed justifications as restrictions on same sex marriage; and the same true motivation: controlling and suppressing a minority to prevent their attaining full equal citizen-hood.

  6. #6 Prup aka Jim Benton
    December 5, 2006

    A sidenot on DADT. A company called Dream Out Loud Films is producing a documentary on the effects of the policy. They do not have a title for it and are asking for suggestions.

    They already have some good ones (I particularly like “OUT of the Military,” “Premature Discharge,” and — my favorite — “All’s Fair But Love in War”) but if you have any good suggestions, send them to

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