L-R: Professor Mark Rienzi, Professor Michael Noone, and Alisa Huth,
co-president, Military and National Security Law Students Association.
Don't Ask, Don't Tell: A Legal Status Report
The merits of the military’s “don’t ask, don’t tell” statute, in effect since the 1990s, will surely continue to be hotly debated by society for years to come.
But from a purely legal standpoint, the policy and current legal challenges to it raise fascinating Constitutional questions, which were the focus of a talk on Nov. 16 sponsored by Catholic University’s Military and National Security Law Students Association.
Led by Professors Michael Noone and Mark Rienzi, the discussion covered the history of military policies and statutes concerning service by homosexuals, focusing particularly on “don’t ask, don’t tell” which prohibits service members from efforts to discover or reveal closeted gay, lesbian, and bisexual service members or applicants, while barring those who are openly gay, lesbian, or bisexual from military service.
Recently a federal district court judge declared “Don't ask, don't tell” unconstitutional and issued an injunction prohibiting the Department of Defense from enforcing or complying with the policy. The 9th Circuit Court of Appeals stayed the injunction pending appeal; leaving the policy in effect for now. On Nov. 12, the U.S. Supreme Court refused to overturn the stay.
Noone and Rienzi noted that historically, the U. S. Supreme Court has been reluctant to involve itself in disputes over qualifications to enter into or remain in the armed forces, usually deferring to the constitutional powers delegated to Congress. In fact, it has overturned a statute regulating internal military management on constitutional grounds just once before, in the 1970s.
Whether the high court will plunge into military personnel policies in this instance is not yet clear. Rienzi said one question that may need to be settled first is that of standing, the legal doctrine that requires the suing party to demonstrate that it is adversely affected by the law.
The Log Cabin Republicans, a national gay and lesbian Republican grassroots organization, is behind the current legal challenge to “don’t ask, don’t tell.” Despite its initial victory in federal court, the standing question may come back as the case moves on, said Rienzi.
The Obama Administration favors repeal of “don’t ask, don’t tell” as a policy matter, but has defended its constitutionality and argued that Congress should roll it back, not the courts. This has placed the administration in the odd position of defending the law it does not actually support. If the goal is to eliminate the policy, Rienzi agrees that doing it politically is the better approach: “I think it would be better to get rid of the policy legislatively, rather than judicially,” he said.