There's been a lot of discussion recently about the military's “Don't Ask, Don't Tell” policy (DADT). Much of the discussion has centered on two things: (1) legislation pending before Congress that would affect DADT and (2) the case known as Log Cabin Republicans v. United States. Unfortunately, a lot of what I've seen written about these topics doesn't match reality. And the result is that a lot of the debate here is based on a number of factually incorrect assumptions. Despite their lack of factual basis, these assumptions have taken on a life of their own and have achieved the status of myths. That is, although they are not real, they are widely believed.
I'm an appellate lawyer by profession, and since we're dealing here with legislation and litigation, I thought that I might be able to contribute something useful to the discussion by trying to ground it in some concrete facts. In this context, this means looking at actual statutory language and trying to understand the litigation process. For the most part, this is pretty dry stuff, but it's more or less what I do every working day of my life.
So if you think you can stay awake for a little statutory construction and civil procedure, grab a cup of coffee and join me below the fold.
There's no way I can address every single issue surrounding DADT, so what I'm going to do here is examine what seem to me to be some of the most persistent myths about the so-called “repeal” legislation and the Log Cabin Republicans litigation. What follows isn't the result of a scientific survey of chatter on this site; it's just a list of some of the most common misconceptions I've encountered here.
Myth No. 1: Since DADT is a law enacted by Congress, the president has no choice but to enforce it.
Fact: While DADT is certainly a law enacted by Congress, the president has express statutory authority to suspend its enforcement. That authority comes from 10 U.S.C. § 12305(a), which provides as follows:
Sec. 12305. Authority of President to suspend certain laws
relating to promotion, retirement, and separation
(a) Notwithstanding any other provision of law, during any period
members of a reserve component are serving on active duty pursuant to an
order to active duty under authority of section 12301, 12302, or 12304
of this title, the President may suspend any provision of law relating
to promotion, retirement, or separation applicable to any member of the
armed forces who the President determines is essential to the national
security of the United States.
Since members of reserve components are currently on active duty, this statute could be invoked to halt discharges of lesbian, gay, or bisexual (LGB) servicemembers. The “notwithstanding” clause at the beginning of subsection (a) means that this section can be invoked despite what other sections of the U.S. Code may say. Thus the president could use this authority to suspend discharges otherwise required under DADT.
Using this authority would not, as some commenters have claimed, amount to “repeal of the statute by executive order.” It would simply be a suspension of the statute pursuant to an express grant of authority from Congress.
Myth No. 2: The president hasn't suspended the discharges because he wants “durable” repeal, and the only way to achieve that is for Congress to pass the pending defense authorization bill.
Fact: Even if passed, the so-called “repeal” provision in the defense authorization bill will not mean “durable” repeal. Thus, if the president's refusal to suspend the discharges is based on the fact that his order could be undone by a future administration, the legislation before Congress will not fix that problem. To understand why this is so, one has to look at the text of the actual statute. Oddly, in all of the recent discussions I've read here on this issue, not once have I seen anyone quote the language of the proposed legislation. (Obviously, I don't claim to have read every diary, so if one of you has posted it before, I apologize for missing it.)
Here's the language of S. 3454, National Defense Authorization Act for Fiscal Year 2011, as placed on the Senate calendar. We're dealing specifically with Title V, Subtitle J, § 591:
SEC. 591. DEPARTMENT OF DEFENSE POLICY CONCERNING HOMOSEXUALITY IN THE ARMED FORCES.
(a) Comprehensive Review on the Implementation of a Repeal of 10 U.S.C. 654-
(1) IN GENERAL- On March 2, 2010, the Secretary of Defense issued a memorandum directing the Comprehensive Review on the Implementation of a Repeal of 10 U.S.C. 654 (section 654 of title 10, United States Code).
(2) OBJECTIVES AND SCOPE OF REVIEW- The Terms of Reference accompanying the Secretary's memorandum established the following objectives and scope of the ordered review:
(A) Determine any impacts to military readiness, military effectiveness and unit cohesion, recruiting/retention, and family readiness that may result from repeal of the law and recommend any actions that should be taken in light of such impacts.
(B) Determine leadership, guidance, and training on standards of conduct and new policies.
(C) Determine appropriate changes to existing policies and regulations, including but not limited to issues regarding personnel management, leadership and training, facilities, investigations, and benefits.
(D) Recommend appropriate changes (if any) to the Uniform Code of Military Justice.
(E) Monitor and evaluate existing legislative proposals to repeal 10 U.S.C. 654 and proposals that may be introduced in the Congress during the period of the review.
(F) Assure appropriate ways to monitor the workforce climate and military effectiveness that support successful follow-through on implementation.
(G) Evaluate the issues raised in ongoing litigation involving 10 U.S.C. 654.
(b) Effective Date- The amendments made by subsection (f) shall take effect 60 days after the date on which the last of the following occurs:
(1) The Secretary of Defense has received the report required by the memorandum of the Secretary referred to in subsection (a).
(2) The President transmits to the congressional defense committees a written certification, signed by the President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff, stating each of the following:
(A) That the President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff have considered the recommendations contained in the report and the report's proposed plan of action.
(B) That the Department of Defense has prepared the necessary policies and regulations to exercise the discretion provided by the amendments made by subsection (f).
(C) That the implementation of necessary policies and regulations pursuant to the discretion provided by the amendments made by subsection (f) is consistent with the standards of military readiness, military effectiveness, unit cohesion, and recruiting and retention of the Armed Forces.
(c) No Immediate Effect on Current Policy- Section 654 of title 10, United States Code, shall remain in effect until such time that all of the requirements and certifications required by subsection (b) are met. If these requirements and certifications are not met, section 654 of title 10, United States Code, shall remain in effect.
(d) Benefits- Nothing in this section, or the amendments made by this section, shall be construed to require the furnishing of benefits in violation of section 7 of title 1, United States Code (relating to the definitions of `marriage' and `spouse' and referred to as the `Defense of Marriage Act').
(e) No Private Cause of Action- Nothing in this section, or the amendments made by this section, shall be construed to create a private cause of action.
(f) Treatment of 1993 Policy-
(1) TITLE 10- Upon the effective date established by subsection (b), chapter 37 of title 10, United States Code, is amended–
(A) by striking section 654; and
(B) in the table of sections at the beginning of such chapter, by striking the item relating to section 654.
(2) CONFORMING AMENDMENT- Upon the effective date established by subsection (b), section 571 of the National Defense Authorization Act for Fiscal Year 1994 (10 U.S.C. 654 note) is amended by striking subsections (b), (c), and (d).
Note first that under subsection (c), this legislation requires that DADT remain in effect until such time as all of the “requirements and certifications required by subsection (b) are met.” If those requirements aren't met, then DADT will simply remain in place as is. So contrary to what many seem to believe, passage of this legislation will not mean that DADT has been repealed. All it will do is allow the Department of Defense (DOD) “to exercise the discretion provided by” removal of the current statutory requirement that open LGBs be discharged from service. What this means is that it will be up to the Pentagon to determine by regulation whether LGBs can serve openly in the military.
And therein lies the problem. Assuming statute passes, and DOD issues regulations permitting LGBs to serve openly, those regulations can simply be revoked by a future administration. If you've read the statutory text carefully, you'll see that there's nothing in it that requires DOD to permit LGBs to serve openly. The statute contains nothing compelling DOD to treat LGB servicemembers the same way it treats straight servicemembers. Indeed, under the language of this statute, DOD would be perfectly within its legal rights if it banned LGBs from service completely. In effect, enacting this statute takes us back to the status quo circa 1992.
By passing this statute, Congress will not be guaranteeing LGBs a right to open service, and it will not protect LGBs from being forced out of the military in the event a future administration decides to adopt a discriminatory policy. In sum, there's nothing legally “durable” about this solution.
As a practical matter, however, if the statute passes, and if DOD decides to permit open service, it would probably be somewhat difficult to reinstate DADT or a ban on service by LGBs. Getting the toothpaste back in the tube could be tough, but the point is that there would be no law that would keep a future administration from trying to do so if it wanted to.
Myth No. 3: The Department of Justice was required to appeal the judgment in the Log Cabin Republicans litigation.
Fact: Taking the appeal was a matter of discretion. Nothing absolutely required DOJ to defend the law in the first instance, and nothing absolutely required it to appeal.
Adam B has written an excellent piece on this issue over at DailyKos, and I really have nothing more to add. If you didn't see it the first time around, it's well worth a read. And you should definitely read it before making any claims about how DOJ is “required” to appeal.
Myth No. 4: DOJ is just appealing so that they can get a higher court to invalidate DADT and set a wider precedent.
Fact: A party only appeals from a judgment if it disagrees with it. The Log Cabin Republicans, representing LGB servicemembers, prevailed before U.S. District Judge Virginia Phillips. Judge Phillips held DADT unconstitutional, and she later enjoined DOD from enforcing the policy.
DOJ's appeal now seeks to overturn that decision. DOJ is arguing that Judge Phillips was wrong and that DADT is, in fact, perfectly constitutional. So if DOJ wins on appeal, the precedent it will set is that governmental discrimination on the basis of sexual orientation does not violate the servicemembers' constitutional rights. Obviously, any such precedent would be very harmful to the cause of LGBT equality.
That's why for me as a lawyer, this myth is one of the most baffling things I've ever heard in my life. It completely fails to account for DOJ's actual position in the litigation, and it ignores the profoundly negative consequences a victory by DOJ would have for LGBT Americans.
Myth No. 5: DOJ's appeal doesn't matter, because a future administration could appeal later.
Fact: If DOJ hadn't appealed, Judge Phillips' decision would have become final after 60 days, and no further appeals would be possible.
The reason for this can be found in the Federal Rules of Appellate Procedure, specifically Rule 4(a)(1)(B):
Rule 4. Appeal as of Right—When Taken
(a) Appeal in a Civil Case.
(1) Time for Filing a Notice of Appeal.
[. . .]
(B) When the United States or its officer or agency is a party, the notice of appeal may be filed by any party within 60 days after the judgment or order appealed from is entered.
[. . .]
And to quote the Supreme Court:
“It is well settled that the requirement of a timely notice of appeal is mandatory and jurisdictional.” Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61 (1982)
As a result, if a party (including the federal government) fails to appeal within the time fixed by Rule 4, the Court of Appeals has no power to hear the case. If a party tries to appeal after expiration of the deadline, the appeal is subject to dismissal for lack of jurisdiction. So if DOJ hadn't filed an appeal here, the case would have come to an end.
There's one caveat to this, though, and it's one Adam B has been careful to point out in commenting on this case. Since Judge Phillips issued an injunction, a future administration could return to court and ask her to modify the injunction. If she refused, an appeal could be taken from her order denying the request to modify. Of course, there would have to be some ground for seeking modification, and if LGB servicemembers had been serving openly for years, it would likely be far harder to convince any court to modify the injunction to reinstate the requirement that LGBs serve in silence. Still, I think it's important to note this theoretical possibility.
For those who are still with me after all of this legalese, thanks very much for reading. I hope this will help clear up some of the confusion surrounding DADT so that future discussions on the site will be more “reality based.”
That's all for now.