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.

Leave A Comment

All comments reflect the opinions of commenters only. They are not necessarily those of anyone associated with Box Turtle Bulletin. Comments are subject to our Comments Policy.

(Required)
(Required, never shared)

PLEASE NOTE: All comments are subject to our Comments Policy.

 

Latest Posts

Federal Judge Blocks UNC From Enforcing North Carolina's "Bathroom Bill"

Georgia Pastor Who Praised Orlando Shooting Arrested for Child Molestation

Maine's Governor Is the Epitome Of What's Wrong In The Republican Party

Today's Agenda Is Brought To You By...

Today In History, 1970: Protesters March, then Riot in Greenwich Village over Police Harassment

Born On This Day, 1844: Edward Carpenter

Today's Agenda Is Brought To You By...

Today In History, 1951: California Gay Bars Given Very Brief Reprieve

Featured Reports

What Are Little Boys Made Of?

In this original BTB Investigation, we unveil the tragic story of Kirk Murphy, a four-year-old boy who was treated for “cross-gender disturbance” in 1970 by a young grad student by the name of George Rekers. This story is a stark reminder that there are severe and damaging consequences when therapists try to ensure that boys will be boys.

Slouching Towards Kampala: Uganda’s Deadly Embrace of Hate

When we first reported on three American anti-gay activists traveling to Kampala for a three-day conference, we had no idea that it would be the first report of a long string of events leading to a proposal to institute the death penalty for LGBT people. But that is exactly what happened. In this report, we review our collection of more than 500 posts to tell the story of one nation’s embrace of hatred toward gay people. This report will be updated continuously as events continue to unfold. Check here for the latest updates.

Paul Cameron’s World

In 2005, the Southern Poverty Law Center wrote that “[Paul] Cameron’s ‘science’ echoes Nazi Germany.” What the SPLC didn”t know was Cameron doesn’t just “echo” Nazi Germany. He quoted extensively from one of the Final Solution’s architects. This puts his fascination with quarantines, mandatory tattoos, and extermination being a “plausible idea” in a whole new and deeply disturbing light.

From the Inside: Focus on the Family’s “Love Won Out”

On February 10, I attended an all-day “Love Won Out” ex-gay conference in Phoenix, put on by Focus on the Family and Exodus International. In this series of reports, I talk about what I learned there: the people who go to these conferences, the things that they hear, and what this all means for them, their families and for the rest of us.

Prologue: Why I Went To “Love Won Out”
Part 1: What’s Love Got To Do With It?
Part 2: Parents Struggle With “No Exceptions”
Part 3: A Whole New Dialect
Part 4: It Depends On How The Meaning of the Word "Change" Changes
Part 5: A Candid Explanation For "Change"

The Heterosexual Agenda: Exposing The Myths

At last, the truth can now be told.

Using the same research methods employed by most anti-gay political pressure groups, we examine the statistics and the case studies that dispel many of the myths about heterosexuality. Download your copy today!

And don‘t miss our companion report, How To Write An Anti-Gay Tract In Fifteen Easy Steps.

Testing The Premise: Are Gays A Threat To Our Children?

Anti-gay activists often charge that gay men and women pose a threat to children. In this report, we explore the supposed connection between homosexuality and child sexual abuse, the conclusions reached by the most knowledgeable professionals in the field, and how anti-gay activists continue to ignore their findings. This has tremendous consequences, not just for gay men and women, but more importantly for the safety of all our children.

Straight From The Source: What the “Dutch Study” Really Says About Gay Couples

Anti-gay activists often cite the “Dutch Study” to claim that gay unions last only about 1½ years and that the these men have an average of eight additional partners per year outside of their steady relationship. In this report, we will take you step by step into the study to see whether the claims are true.

The FRC’s Briefs Are Showing

Tony Perkins’ Family Research Council submitted an Amicus Brief to the Maryland Court of Appeals as that court prepared to consider the issue of gay marriage. We examine just one small section of that brief to reveal the junk science and fraudulent claims of the Family “Research” Council.

Daniel Fetty Doesn’t Count

Daniel FettyThe FBI’s annual Hate Crime Statistics aren’t as complete as they ought to be, and their report for 2004 was no exception. In fact, their most recent report has quite a few glaring holes. Holes big enough for Daniel Fetty to fall through.