LCR v. DADT closing arguments go well

Timothy Kincaid

July 23rd, 2010

Closing arguments in the Log Cabin Republicans’ challenge to the Military’s Don’t Ask, Don’t Tell policy finished up today. Judge Phillips had announced that the Witt precedent would be used to determine what level of proof would be required and Dan Woods, for LCR, presented evidence and testimony accordingly. (National Law Journal)

Last month, Phillips set forth the standard of proof that both sides had to meet. She based it on the U.S. Court of Appeals for the 9th Circuit’s 2008 decision Witt v. Dep’t of the Air Force — that the policy is necessary to advance a legitimate governmental interest.

On Friday, Woods maintained that the policy served no such interest.

“Lawrence established that Americans have a constitutional right to engage in private, consensual homosexual conduct,” Woods said, citing the U.S. Supreme Court’s 2003 ruling in Lawrence v. Texas, where the court found that state’s criminalization of private, consensual sodomy unconstitutional. “Don’t Ask, Don’t Tell infringes on that right, punishing individuals who engage in a constitutionally protected activity.”

During the trial, Woods introduced numerous reports and expert witnesses who concluded that the policy has done little to maintain troop cohesion. In fact, he said, the evidence showed that the policy disproportionately harmed women and noncombat service members. He noted that service members work alongside foreign militaries and private contractors, both of which permit open homosexuality.

“Our military will give a convicted felon a gun, but will not give a gay guy a typewriter,” he said.

Assistant U.S. Attorney Paul Freeborne, defending the policy, decided that arguing with the judge was a better way to make his case.

Freeborne responded that the due process and First Amendment claims fail “as a matter of law” because the Log Cabin Republicans brought a facial challenge to the constitutionality of the policy. That requires both parties to focus on the face of the statute and its legislative history — not the experiences of individuals, he said.

Phillips interrupted, disagreeing about the scope of the court’s review.

“The government’s argument it has made throughout this case and on which it has relied to contest the admission of nearly every exhibit, and most of the testimony, overlooks that the court is directed to look at the effect of the challenged statue,” Phillips said.

Freeborne said he would “respectfully disagree” with that analysis. He also disagreed that the Witt standard, which dealt with the circumstances of a single service member and not the statute as a whole, was appropriate in a facial challenge.

In defending the statute against First Amendment claims, Freeborne used the example of a witness who was not discharged even after coming forward about being hazed and harassed about his homosexuality.

“After enduring it for months,” Phillips replied.

While this sounds encouraging, we cannot assume that the judge will rule in our favor. But by all accounts, the testimony and arguments went well.

Log Cabin has asked Judge Phillips to impose an injunction halting the military’s unconstitutional “don’t ask, don’t tell” policy and, if appealed, to suspend the policy during appeal. That would be the best possible outcome of the trial at this level.

Rev Ray neal

July 25th, 2010

Reasonable judges who judiciously consider the law, so it seems this judge will be. But leave it to the fundamentalist right to cry “foul” and accuse the judge of being activist.

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