In the aftermath of President Barack Obama move to repeal “Don’t Ask Don’t Tell,” the military’s attempt to integrate gay service members without acknowledging their existence, Nathan Koppel raises an interesting point over at the Wall Street Journal Law Blog.
Last year, California Federal Judge Virginia Phillips ruled that the US government’s Don’t ask Don’t Tell policy violated gay service members’ free speech and due process rights. That ruling is currently on appeal in the 9th Circuit, and seems destined for a Supreme Court ruling at some point. That is, if it ever gets there.
The government is now claiming that the case is essentially moot following the repeal, and therefore is seeking to have the case vacated. In addition, there is now a question as to whether the legal fees, time and energy are worth it for two sides arguing over a law that no longer exists.
The group that brought the case in California, “Log Cabin Republicans,” a GOP organization that favors gay rights, says they will continue to fight. The group originally brought the case of a gay service member who was honorably discharged from the Army after being outed.
Their reasoning is clear: should the appeal court decided to vacate Judge Phillip’s finding that Don’t Ask Don’t Tell is unconstitutional, the ruling would no longer serve as binding precedent in other court cases. In cases of this nature, it’s important to the suing party that lasting precedent be established, lest another administration take office and re-instate a similar policy.
Speaking Koppel, Casey Pick, an attorney representing Log Cabin Republicans, reiterated as much, explaining “A judicial finding that don’t ask, don’t tell was unconstitutional means that the policy was wrong at the beginning and has always been an injustice.”
For what it’s worth, the current military administration seems pleased with the ruling. Admiral Mike Mullen said that the new law makes the military stronger both in might and character. “I still believe that it was first and foremost a matter of integrity, that it was fundamentally against everything we stand for as an institution to force people to lie about who they are just to wear a uniform,” Mullen said. “We are better than that.”
For advocates of gay rights, it’s great to hear these words. But failing to secure a constitutional victory in this case could one day negate all that’s been gained.