Noteboom The Law Firm

“Don’t Ask Don’t Tell” Case Questions the Ban’s Constitutionality

July 21, 2010 - The Pentagon only recently repealed its "don't ask, don't tell" policy and is still looking at the impact of that decision. A case docketed in a California federal court, however, will consider the constitutionality of the policy banning gays and lesbians from openly serving in the U.S. military itself.

The Log Cabin Republicans (LCR) have been fighting for 6 years to show the ban violates constitutional protections such as due process and free speech. Should everything go their way, the entire statute will end up being "thrown out." The LCRs will call multiple expert witnesses and former service members as part of their case. The service members' testimony will focus on how their discharge from the service was not related to their personal performance but purely because of reasons related to the "don't ask, don't tell" policy. 

Despite government objections, the Judge assigned to the case moved the case forward to trial. Lawyers for the Justice Department are expected to make two arguments:

• The LCRs cannot identify any of its members who have been injured by the ban; and
• The LCR's claim of unconstitutionality fails under precedent.

This case, and the arguments the government lawyers are forced to make, puts those government lawyers in a very strange position. Their arguments will force them to defend the very statute the Obama administration is hoping to end. When Congressional actions are challenged, however, it is the Justice Department's job to defend those actions.