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A few thoughts on LCR v. US

Timothy Kincaid

September 10th, 2010

Ari Ezra Waldman, writing at Towelroad, has an excellent assessment of Log Cabin Republicans v. US, the court case in which the military’s discriminatory Don’t Ask, Don’t Tell policy was found unconstitutional. He answers some common questions and helps one understand the legal complexities of the law.

In addition, I have a few observations about the case and the decision.

1. Had this case been one brought by an individual, it might have become one of specific circumstances. In other words, a win in court might have been so narrow as to only apply to that one individual (as was the case in Witt v. the Air Force). But because this was an organization suing on behalf of members, the case became one of the constitutionality of the law, rather than the application for an individual.

Further, Log Cabin Republicans may be uniquely ideal for bringing the case.

Often gay organizations are perceived (often correctly) as being part of a progressive ideology which is generally hostile to military action, military service, and military life. However, as an organization that has long supported “a strong national defense”, the Justice Department could not suggest that the plaintiffs were disingenuous or hypocritical and there are no anti-military statements out there which could be brought up in court.

The two gay serviceperson’s organizations also could have sued and probably had less challenge to their standing. But in the court of public opinion, Log Cabin Republicans may have a greater ability to appear principled and less like an angry ex-employee. Further, LCR is more immune to accusations of being far-left anti-military activists due to their name alone.

2. The finding of violation of the 5th Amendment is particularly important. This is a continuance of the recent trend to find gay people to be a unique class of people, as opposed to just a behavior. As gay people continue to be a class, any efforts to enact laws which restrict the equality, freedom, or rights of gay people will be held to scrutiny and, as they all are based in animus, tossed out.

This is key to our freedom. If we are just a bunch of folks who whimsically decide to engage in some behavior, then such a decision can be punished without being in violation of the constitution. But as gay people are recognized as individuals sharing a common immutable trait, then such laws are held to higher and higher standards and such animus becomes not only legally but socially unacceptable.

Comments

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daftpunkydavid
September 10th, 2010 | LINK

i’m curious to know what your thoughts are on the fear some express that the ruling may set the situation back to the pre-dadt era, meaning homosexuals cannot serve period. is this a valid caveat?

Pender
September 10th, 2010 | LINK

LCR’s status as a right-leaning group also gives them the ability to litigate whole-heartedly: they used Obama’s own anti-DADT statements against him (which are in fact quoted in the decision!) and didn’t hold anything back to maintain relations the way a HRC or Lambda Legal might. They don’t care that Obama prefers his anemic, uncertain, interminable legislative approach and consider it a feature if they can beat him to repeal. The result is more effective litigation with no punches pulled.

It should also frighten the Democrats that Republicans can plausibly claim to have achieved more progress for gay people than Democrats have, and this may push Democrats to be somewhat more assertive in pursuit of gay equality — another advantage that would not have accrued were LCR a left-leaning group.

LCR is invaluable to us. I wish more people understood these aspects of their worth.

Pender
September 10th, 2010 | LINK

daftpunkydavid, I think a “no gays allowed” rule would be nearly indistinguishable in practice from the DADT regime, so I doubt that’s a compelling concern.

Timothy Kincaid
September 10th, 2010 | LINK

DPD,

No, this ruling not only found that DADT is unconstitutional via 1st Amendment (which could indeed do as you indicate) but also because of the 5th. It is the Fifth Amendment issue that makes a ban on gay servicemembers to be unconstitutional.

Timothy Kincaid
September 10th, 2010 | LINK

One other comment.

For the past two years, the anti-gays have been dancing in the aisles about California voting for Prop 8. Nary an anti-gay marriage moment passed without some comment about “even voters in California…”

But considering the past few months, I bet they wish they’d never heard of this state.

scioto
September 10th, 2010 | LINK

“LCR is invaluable to us.”

Yes, they are so influential that their party’s 2008 platform included:

“Esprit and cohesion are necessary for military effectiveness and success on the battlefield. To protect our servicemen and women and ensure that America’s Armed Forces remain the best in the world, we affirm the timelessness of those values, the benefits of traditional military culture, and the incompatibility of homosexuality with military service.”

And:

“Republicans have been at the forefront of protecting traditional marriage laws, both in the states and in Congress. A Republican Congress enacted the Defense of Marriage Act, affirming the right of states not to recognize same-sex ‘marriages’ licensed in other states.”

Ryan
September 11th, 2010 | LINK

I don’t think Republicans could ever say they’ve done more for gay rights than Democrats, come on now. There’s still an upcoming DADT repeal vote. How do you think the numbers are gonna shake out on that?

customartist
September 11th, 2010 | LINK

Pender,

It is crystal clear that you wish to attribute advancement to Republicans.

It is also crystal clear that Republicans have historically opressed Gays in a much greater proportion than Democrats.

Whatever progress is or is not made by either side, and especially during a time when there is measureable change in public opinion, hasn’t affected this fact, nor my overall opinion of the Republican Party. They do not act in the best interest of the American People overall, but rather in the interest of a Wealthy Minority categorically.

Any Gay person voting for the Republican Party is in error, IMHGO.

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