The plaintiffs contested the law under several constitutional theories. Judge George O'Toole, Jr. rejected each of the constitutional claims, including violations of homosexual soldiers' due process, equal protection and First Amendment free speech rights.
The Fifth Amendment to the United States Constitution guarantees that no person shall be "deprived of life, liberty, or property, without due process of law.” The gay soldiers, relying on the Supreme Court's decision in Lawrence v. Kansas believe they have a “fundamental liberty interest in private adult consensual intimacy and relationships, including consensual intimacy and relationships between adults of the same sex” which "Don't Ask, Don't Tell" violates. Judge O'Toole, interpreting the Lawrence opinion very narrowly wrote:
I conclude that neither Lawrence nor any relevant precedent requires treating plaintiffs' ariticulated liberty interest as a "fundamental" interest calling for heightened scrutiny in judicial review of the legislative decision-making. Rather, for the purpose of plaintiffs' substantive due process claim, Congress' enactment of {Don't Ask, Don't Tell} and the armed forces' promulgation of implementing regulations are to be reviewed to determine whether they lack a rational basis.
Judge O'Toole concedes that the holding in Lawrence, which struck down Texas' gay criminal sodomy law, "seems to be a matter of some uncertainty" and that the Lawrence court did not directly answer the question of whether homosexuals have a fundamental right to engage in consensual and intimate sexual relationships. If that had been the Court's holding, O'Toole reasons that it would "have been stated" by the Court, particularly when it is stating a new "principle of constitutional law." He notes that Justice Scalia's dissenting opinion asserted that the Court had recognized no such fundamental right. O'Toole said, "[I]t mightbe expected that if that statement wrongly characterized a principal holding of the case, the majoritywould have answered and corrected it . . . the majority’s silence on the point amounted to acquiescence in the dissent’s statement that the case did not hold what the plaintiffs here say it did."
The gay service members argued that the law allows openly homosexual members of the armed services to be separated for that reason alone, whereas other service members are not. This distinction, the plaintiffs argued, constitutes an inequality of treatment without a compelling, important, or even legitimate government interest to justify it, amounting therefore to a violation of the equal protection under the First Amendment's Due Process Clause. Applying less scrutiny to the law under the "rational basis" test, Judge O'Toole said of the "Don't Ask, Don't Tell" law:
{It} was the product of a focused process of debate and deliberation . . . there is as a matter of fact some level of risk to morale, good order and discipline, and unit cohesion from the presence in the armed forces of persons who demonstrate a propensity to engage in homosexual acts-and an evaluative judgment-that the identified risk is unacceptable."
Judge O'Toole sees the "Don't Ask, Don't Tell" law as no different than state classifications which treat older workers differently than younger workers, such as for uniformed police officers or mandatory retirement laws for civil service workers. Judge O'Toole said, "What that means in this case is that the plaintiffs would have to show that Congress could not reasonably conceive that the service of open homosexuals in the military would have the deleterious effect on 'morale, good order and discipline, and unit cohesion' that was described by some military leaders and is contained in the legislative record." He concludes, "The plaintiffs cannot meet that standard."
Because the "Don't Ask, Don't Tell" law penalized statements by the plaintiffs about their sexual orientation, which were later used to separate them from the military, the plaintiffs argued that their First Amendment free speech rights were violated. Judge OToole didn't see this as a viable claim because he believes the law is primarily directed at their conduct, not their statements. He says:
The fact that one might speak about one’s conduct, or one’s propensity or intention to engage in certain conduct, does not mean that a governmental regulation pertaining to the conduct is also an impermissible restriction on speaking about it. When certain conduct combines both “speech”and “nonspeech” elements, “a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms . . . The governmental interest served by {the law} is the effective enforcement of the policy. Facilitating the enforcement of a valid policy is a legitimate, and one may even say important, governmental interest.
Responding to today's decision, SLDN said, “We continue to believe the military’s ban is un-American and unconstitutional. There is no reason lesbian, gay and bisexual Americans should be prohibited from serving our country. The men and women in this lawsuit represent the best of our armed forces. They are patriotic, dedicated veterans. America should welcome their contributions and honor their commitment to our country.”
Don't expect this to be the last word on this issue. AI expects this case to make its way eventually to the Supreme Court.
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