(Link) A federal judge gives the boot to a suit filed by the Log Cabin Republicans over "Don't Ask, Don't Tell." Ironically, they couldn't find a plaintiff willing to be openly gay long enough to put a name on the paperwork.
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By Ann Rostow
PlanetOut Network
A federal judge in California has dismissed a challenge to the Pentagon's "don't ask, don't tell" policy on technical grounds.
Filed by the Log Cabin Republicans, a gay political group, in October 2004, the challenge was lodged on behalf of unnamed members who had either served or were currently serving in the armed forces. In his 18-page ruling, Judge George Schiavelli said the group did not have standing to sue as an association unless it could prove that one or more of its members had standing to sue as individuals. Since the Log Cabin Republicans declined to name anyone affected by the ban on open gay service, that test had not been met, Schiavelli wrote.
Schiavelli gave the Log Cabin Republicans until April 28 to revise the complaint to include the name of one or more victims of the military's policy. Although the group had argued that its members could not take the risk of making a public stand, Schiavelli noted that numerous challenges to "don't ask, don't tell" have been advanced on behalf of openly gay, named plaintiffs.
"These cases demonstrate that here, as in other situations in our country's history, individuals who believe their constitutional rights have been violated will step forward to legally challenge the perceived injustice despite the potential consequences of being identified in a lawsuit," he wrote.
In a footnote, the judge added that the Log Cabin Republicans' insistence on confidentiality was "even less persuasive" in the case of former service members. "As these members have already been separated from the military, it is difficult to understand an ongoing interest in remaining anonymous predicated upon the fear of either investigation or discharge."
The Log Cabin Republicans filed its case shortly before the highly publicized launch of another "don't ask, don't tell" challenge by the Servicemembers Legal Defense Fund. At the time, it was unclear why the political group chose to enter the legal fray, particularly with anonymous plaintiffs that guaranteed the lawsuit would be bogged down over the question of standing. Further, the Log Cabin group sued in California, where a federal appellate court precedent in favor of the government's policy was likely to hamper a victory.
The Servicemembers Legal Defense Fund's suit, Cook v. Rumsfeld, filed in federal court in Boston, was argued last summer and is awaiting a ruling. Regardless of the outcome, the 12 former service members in Cook v. Rumsfeld will logically proceed to the U.S. Court of Appeals for the First Circuit and a possible petition to the U.S. Supreme Court.
Both lawsuits are the first challenges to the military's anti-gay policy since the Supreme Court decision in Lawrence v. Texas, which struck down a key legal support for "don't ask, don't tell" by ruling that governments could not criminalize private noncommercial sex between consenting adults. Prior to Lawrence, government lawyers could point out that the military was justified in setting limits on an activity that was classified as a felony in several states.
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