Bronwen Tomb was a cadet at the United States Coast Guard Academy. She was discharged after she told a fellow cadet she was a lesbian. Two days later, he told their company commander.
The Department of Justice returns to court today to defend another LGBT discriminatory law: the military's "Don't Ask, Don't Tell" policy. A trial begins today in Federal Court in Riverside, CA. A group of servicemembers led by Log Cabin Republicans are challenging DADT on Constitutional grounds of due process and free speech. The nonjury trial will be argued before U.S. district judge Victoria A. Phillips.
This trial could really not have come at a worse time for the Obama administration. Tension in the LGBT community is high, particularly on the DADT issue. Many LGBT activists were first unhappy with the compromise brokered in May, and now, with how it's playing out.
Politico noticed and posted a story July 10, "Obama can't shake gay-rights fights," that examined the many landmines the Obama administration faces over this case.
The article makes note of the double-bind of the Justice Department finds itself in: simultaneously not drawing fire from the right for "throwing the case for the radical gay agenda" or further alienating the frustrated LGBT community.
The DOJ will be tasked with cross-examining active-duty LGB servicemembers, testifying as "John Doe" to protect their anonymity from the policy itself. Already the DOJ sought to block their testimony arguing the troops had no standing, an argument Phillips did not buy.
Another gay veteran Alexander Nicholson, executive director of Servicemembers United is also slated to testify. He will likely be a formidable spokesman, having already being largely responsible for one DADT firestorm this week.
Go too hard on these witnesses and look heartless, and risk being accused of dishonoring active-duty troops' service. Go too easy on them look to the right as though you've thrown the case. The DOJ will have to walk very precarious line to avoid harsh criticism from both quarters.
Of course we know what sort of arguments might satisfy the right. In an op-ed featured in the Washington Times, Robert Knight wrote repeal would result in the military taking your daughters from you, shipping them off to combat for forced abortions.
Forcing open homosexuality on the armed forces would destroy the volunteer military and bring back the compulsory draft. Since women are now deployed close to combat, and the only legal reason they are not eligible is their combat exemption, a new draft could include our daughters. And some would face pressure to have on-base abortions in order to complete their tours of duty.
Let us hope the DOJ declines to consider this a viable argument.
Richard Socarides, a senior adviser to President Bill Clinton on gay rights issues, tells Politico:
"This has got to be a nightmare for the White House political office, especially as Organizing for America ramps up efforts to rebuild a coalition for the midterms which includes gays. I can’t understand why the president’s senior advisers permit the Justice Department to defend this case. ... It’s incomprehensible."
Socarides is right about the political implications. The machinations the DOJ made previously in defending the Defense of Marriage Act were received with great fury. Many in the gay community are still smarting from having their relationships compared in a court of law with pedophilia and incest.
There is the view that the DOJ can do nothing else but defend it. But, there are other choices, however politically nonviable they may be. From Politico:
Some lawyers in the gay rights movement scoff at that. They note that from time to time, Justice has refused to stand behind laws under challenge as unconstitutional. For instance, in 2005, the Justice Department declined to defend a law barring the D.C. Metro transit system from accepting ads that promote legalizing marijuana.
These are bizarre times when the Republicans are suing Obama to stop "Don't ask, don't tell," and the Bush DOJ stood down in a face-off with marijuana legalization advocates.
With a Federal District Court recently affirming an argument that a LGBT-discriminatory law is unconstitutional, the question of President Obama and his administration's position on the Constitutional validity of these laws has come into sharper focus. It has clear implications for how they proceed on DOMA and DADT challenges with respect to the actions of the DOJ and Solicitor General's Office. And it's increasingly becoming a point of contention with some in the gay community that he answer the question, and make clear, is it the administration's position that LGBT discrimination is Constitutional?
A spokesperson for the White House claims the President has never addressed the Constitutionality of the "Don't Ask, Don't Tell" law. This statement was released July 7th:
As Melody [Barnes] noted, the President has long said he believes that both DOMA and DADT are discriminatory and that these laws should be repealed by Congress. The specific question of the Constitutionality of these laws is not an issue that he has spoken to.
It has since been discovered he did, in passing, refer to it as "Constitutionally valid," when addressing a related point in an interview with Anderson Cooper on CNN in July 2009.
There may also have been a third way out of this political quagmire.
Ben Goad, a staff writer for a local Southern California outlet, the Press Enterprise, filed a report on July 2 on the local drama in Riverside, CA. Buried at the end was this:
The Log Cabin Republicans offered to drop their case if the government would agree to stop discharging homosexual service members until after Congress resolves the question. The government declined, and without a firm timetable in Washington, the group is intent on pushing forward in court, Woods said.
Dan Woods being the counsel for the Log Cabin Republicans (LCR).
I spoke to Dan Woods to get some more details. Seems they made the settlement offer twice, in February 2010 and April 2010. The word "dropped" used in the Free Enterprise article is a little misleading. Their offer was stop all action and put the case on hold until a legislative path was cleared to make repeal possible. Once repeal occurred they would withdraw their case entirely.
At that time, Patrick Murphy's original bill, HR 1283, Military Readiness Enhancement Act was still on the table. Murphy's bill, had it made it to a vote, would have placed a definite end date for the policy and a halt to all investigations and discharges, as well as institute a non-discrimination policy for LGB troops. All these mandates were scrapped in the eventual compromise coming out of meeting between advocates, the Pentagon and the White House the first week of May.
Woods says the negotiations were made with Assistant U.S. Attorney Paul Freeborne at the Justice Department, and that they were dismissed out of hand, "They were never interested." Asked if there might be some separation of powers issues surrounding the DOJ and their power to influence Pentagon policy Woods said, "This goes right to the top. The President gets to decide what's best for the armed forces. He's the Commander-in-Chief." He also referenced the Solicitor General's involvement in the case.
The LCR were giving up a lot with this generous offer to halt the suit. The suit has been proceeding slowly, but quite steadily in repeal advocate's favor. Though the Department of Justice has been steadily throwing up roadblocks, the Log Cabin Republican argument's have been steadily knocking them down. Repeal advocates would, presumably have a bite at a SCOTUS challenge, regardless of the verdict at this level.
The administration was being asked to merely "temporarily" suspend discharges, not actually change policy, or run afoul of any law. There is in fact, explicit language in the "Don't Ask, Don't Tell" legislation allowing for it's suspension:
Cornell University Law School:
(e) Rule of Construction.— Nothing in subsection (b) shall be construed to require that a member of the armed forces be processed for separation from the armed forces when a determination is made in accordance with regulations prescribed by the Secretary of Defense that—
(1) the member engaged in conduct or made statements for the purpose of avoiding or terminating military service; and
(2) separation of the member would not be in the best interest of the armed forces.
The President would not even have to perform any position change, he has already said the DADT policy "weakens national security."
The Pentagon has repeatedly reassured repeal advocates and LGBT groups we're past talking about when DADT ends, and now talking about how. In fact, repeal of this policy was such a sure thing, the DOJ even argued this Constitutional challenge was already moot and should be halted. (An idea they like, apparently, so long as they don't have to give anything in exchange.)
Judge Phillips rejected that argument last week calling the prospects for repeal, "remote, if not wholly speculative." She noted even if Congressional action were successful, discretion of repeal taking place—or not—still lay solely with the Pentagon.
Had the administration taken some time to think about the settlement offer, this was a golden opportunity for the administration to relieve itself of a headache and deliver on its promise at a good time to re-invigorate the LGBT community's enthusiasm for midterms.
It's curious to me they did not entertain it. Sure, the right would have howled. Just as they did when he spoke to children on the first day of school. It shouldn't have been news to the right, he's been promising to end DADT since 2007.
The inertia to continue discharging soldiers for being gay is apparently very, very great.
If "DADT is dead," why then, is it so important to keep the discharges in place? The news of 2009 discharges was spun in the popular media as "lower than 2008." But many in the LGBT community are well aware that over 1,000 servicemembers have been discharged under Obama's watch.
When will it end?
Why won't it end?
Opening portrait from Proud to Serve, a photography project by Brooklyn photographer, Jo Ann Santangelo. She is currently planning a tour to photograph more LGBT Veterans, learn more and support her work.
Update 1. The trial in progress is being Tweeted by The Advocate Magazine and others. Searching by hashtag #DADT is a smart strategy. H/T JPMassar.