Current Affairs

Scholars fight gay military ban

Marc Shoffman November 28, 2006
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A group of renowned constitutional scholars has filed a brief asking the First Circuit Court of Appeals to reverse a District Court ruling and allow a lawsuit to move forward in an appeal by twelve military veterans battling the “Don’t Ask, Don’t Tell” law prohibiting military service by lesbian, gay and bisexual recruits.

The nine recognised experts filed the amicus brief, in support of the service members in Cook v Rumsfeld, last week.

The signatories include professors from Yale Law School and other legal experts.

The brief states that “If the ‘Don’t Ask, Don’t Tell’ policy does not require careful and searching constitutional scrutiny, then the First Amendment is a dead letter in the US military.”

It also argues that ‘Don’t Ask, Don’t Tell’ “offends a fundamental right of personal autonomy” by forcing lesbian, gay and bisexual service members to not only be secret about a fundamental aspect of their identity, but by also forcing them to affirmatively present themselves as heterosexual in public when they are not.

“Don’t Ask, Don’t Tell,” the authors say, denies “the freedom of mind that protects the individual from being compelled to affirm an identity, idea or belief that is not his own.”

The constitutional scholars also said: “We are aware of no other law in America today that regulates a group of citizens and then prohibits those very citizens from identifying themselves as the regulated population and speaking up on their own behalf. . . . There is no greater threat to First Amendment values than a law that skews political debate in this manner.” The Supreme Court, they conclude, “has never upheld a prohibition on the speech of military personnel as restrictive as ‘Don’t Ask, Don’t Tell.'”

Cook v. Rumsfeld, filed on behalf of twelve veterans of the war on terror who were dismissed under “Don’t Ask, Don’t Tell” has been appealed to the First Circuit following an April District Court decision granting the government’s motion to dismiss the case. The suit was filed on behalf of the plaintiffs by Servicemembers Legal Defence Network (SLDN) and the law firm of Wilmer Cutler Pickering Hale and Dorr LLP. In their main brief, the plaintiffs argue that “Don’t Ask, Don’t Tell” violates their rights of substantive due process, equal protection and freedom of speech.

C. Dixon Osburn, executive director of SLDN, said: “This is an important brief for the court to consider as it explores, in depth, the fundamental First Amendment rights that are at stake in this case. The law is a federal gag order that prevents lesbian, gay and bisexual service members from being honest with anyone, including family and friends. No American who wears our nation’s uniform, and volunteers to go into harm’s way in defence of our ideals, should themselves be denied the freedoms they fight to uphold.”

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