Decision sidestepping Lawrence ruling shocks plaintiffs in case
A federal judge in Boston has dismissed a challenge to the ban on out gays and lesbians in the military, setting up a likely showdown before the U.S. Court of Appeals for the First Circuit.
Steve Ralls, spokes-man for the Service members Legal Defense Network, said the decision came as a shock.
“We thought we had a very strong case and we had every expectation that the suit was going to move forward. We were very surprised and very disappointed,” Ralls said.
Filed by the Servicemembers Legal Defense Network in December 2004 on behalf of 12 men and women discharged under the policy, the case was the first legal assault on the 1993 law since the U.S. Supreme Court’s gay rights ruling in Lawrence v. Texas three years ago.
As such, advocates had high hopes for the lawsuit, backed by a strong high court precedent that appeared to extend fundamental privacy rights to embrace the intimate relationships of same-sex partners. Written by Justice Anthony Kennedy, and released June 26, 2003, the Lawrence opinion was hailed at the time as issuing in a new era of legal rights for gay men and lesbians.
By emphatically overturning the court’s 1986 decision upholding criminal sodomy laws, Bowers v. Hardwick, the Lawrence decision removed the most intractable obstacle to successful civil rights claims involving gay couples.
Unshackled from the heavy weight of the Bowers precedent, and propelled by the fundamental rights under the due process clause articulated in Lawrence, the GLBT legal community looked forward to major advances in the country’s courtrooms. Among the many opportunities that seemed to flow from Lawrence were the defeat of Florida’s adoption ban, more powerful arguments in favor of marriage equality, the death of the military’s ban on sodomy and a fatal crack in the legal defense for “‘don’t ask don’t tell.’
Three years later, however, it’s clear that Lawrence has room for interpretation the size of a banquet hall.
The opinion was smoothly finessed by the U.S. Court of Appeals for the 11th Circuit, which upheld Florida’s prohibition on gay adoptive parents in 2004. While some marriage rights victories have been based on Lawrence, several other marriage courts have either ignored the decision or easily made a distinction between the criminal context of Lawrence and the policy context of state marriage laws. And although the military’s prohibition against sodomy seems vulnerable, Monday’s “don’t ask don’t tell” ruling serves as another illustration of the Lawrence loophole.
The holding in Lawrence “seems to be a matter of some uncertainty,” wrote U.S. District Court Judge George A. O’Toole Jr. in his 41-page opinion. “The plaintiffs assert that Lawrence recognized as fundamental the liberty interest they rely on, whereas the defendants assert that it did not. The difference in interpretations is understandable because the Lawrence opinion does not directly answer the question.”
The “question” that went unanswered in O’Toole’s view was a critical one. If Lawrence enshrines a “fundamental” right, courts are obliged to subject any infringement of that right to strict scrutiny, a searching inquiry that requires the government to put forth a “compelling” state interest and explain as well why the challenged policy or law is narrowly tailored to serve that interest.
It’s a legal test that is almost impossible to meet.
Instead, O’Toole concluded that the rights protected under Lawrence were not “fundamental,” allowing the government to justify the ban on gays in the military as “rationally” related to a “legitimate” state interest.
Not surprisingly, the government passed the easier “rational-basis” test with flying colors. After all, as O’Toole pointed out, the passage of “don’t ask don’t tell” was proceeded by extensive hearings in Congress.
“It is not for this court on a rational-basis review to conduct a re-weighing of the evidence that was before the legislative decision makers,” he wrote.
O’Toole also remained unconvinced by the plaintiffs’ equal protection arguments. As for their claim that the “don’t tell” feature of the policy violated their right to free speech, the judge dismissed the idea as “not viable.”
The government ban on openly gay military personnel is essentially a ban on conduct, O’Toole ruled. “When certain conduct combines both “‘speech’ and “‘non-speech’ elements,” he wrote, citing a previous case, “a sufficiently important government interest in regulating the non-speech element can justify incidental limitations on First Amendment freedoms.'”
Judge O’Toole went to some pains to make clear that his decision was not a commentary on the rightness or wrongness of “don’t ask don’t tell.”
“Deciding that Congress has made a rational choice,” O’Toole stressed, “is not the same as deciding it has made a wise choice. Wisdom, or its lack, is not a constitutional category. Acting within their proper constitutional authority, Congress and the executive branch are free to act both wisely and unwisely, and the remedy for bad decision-making by the political branches is to be found in the workings of the political process.”
Ralls said that he believes O’Toole erred in his decision.
“We were confident that Lawrence v. Texas changed the playing field, and we’re still confident that it has,” Ralls continued. “We respect the court but we respectfully disagree with Judge O’Toole’s interpretation of how Lawrence did, or specifically did not, change the legal viability of “‘don’t ask don’t tell.’
“I would certainly say that the Lawrence component of his decision was particularly surprising,” Ralls said.
Ralls said his group will consult with the plaintiffs in weighing the possibility of an appeal. That decision must be made within the next sixty days, but Ralls said an announcement would probably come sooner, most likely in a few weeks.
This article appeared in the Dallas Voice print edition, April 28, 2006.