Friday, September 10, 2010

The DADT Decision

I haven’t had time to study the California District Court decision enjoining the enforcement of “Don’t Ask, Don’t Tell (“DADT”) on the ground that it deprives gay and lesbian soldiers of substantive due process under the Fifth Amendment and their right to free expression under the First Amendment. But, in my capacity as a (small “d”) democrat, I can’t help being amazed by the fact that, for the second time in the space of a month, a federal trial judge has struck down a morally charged public decision on constitutional grounds based on factual findings. In the Proposition 8 decision, Judge Walker found that its defenders hadn’t met their burden of persuading him that, as a matter of fact, a law prohibiting same-sex marriage is rationally related to any legitimate state interest. Now Judge Phillips (applying a more exacting level of judicial scrutiny) has reached a similar decision with respect to DADT. Here’s her holding with respect to substantive due process (my emphasis):
“The Don't Ask, Don't Tell Act infringes the fundamental rights of United States service members in many ways, some described above. The Act denies homosexuals serving in the Armed Forces the right to enjoy "intimate conduct" in their personal relationships. The Act denies them the right to speak about their loved ones while serving their country in uniform; it punishes them with discharge for writing a personal letter, in a foreign language, to a person of the same sex with whom they shared an intimate relationship before entering military service; it discharges them for including information in a personal communication from which an unauthorized reader might discern their homosexuality. In order to justify the encroachment on these rights, Defendants faced the burden at trial of showing the Don't Ask, Don't Tell Act was necessary to significantly further the Government's important interests in military readiness and unit cohesion. Defendants failed to meet that burden. Thus, Plaintiff, on behalf of its members, is entitled to judgment in its favor on the first claim in its First Amended Complaint for violation of the substantive due process rights guaranteed under the Fifth Amendment.”
I’m not yet in a position to evaluate Judge Phillips’s voluminous argument that her decision is compelled by controlling legal precedents. But suppose it is. That doesn’t make it any less odd that a democratic decision that has been the object of passionate and sustained public debate since the beginning of the Clinton administration could be settled once and for all on the basis of factual findings issued by a single District Court judge sitting in Riverside California after a single evidentiary hearing. Granted, that decision will be appealed, but according to established rules of appellate procedure, a trial judge’s factual findings are entitled to extreme deference from appellate courts.

Recall the circumstances under which DADT emerged. Bill Clinton thought that enabling gays and lesbians to serve openly in the military was important enough to be one of the first official acts of his presidency. That ignited a firestorm of opposition. Some of it was inspired by the belief in the immorality of homosexual conduct. But a lot of the opposition turned on the congressional testimony of people high up in the military chain of command (notably Colin Powell) to the effect that tolerating homosexuality in the armed forces would compromise military effectiveness. That testimony mattered to a lot people who supported the aspirations of gays and lesbians to take their rightful place in American society.

DADT was the policy outcome that emerged from the collision of competing views in the political process. That wasn’t my idea of good public policy at the time and, in any case, I think that even if the empirical judgments we made collectively about military effectiveness in the 1990s were valid, they've probably become anachronistic. But that doesn’t make it any less strange that the public decision about whether and how to revisit DADT should be made by a single district court judge nobody’s ever heard of, without (as far as I know) a shred of military experience or noticeable deference to the views of the political branches, the Joint Chiefs or the American public. 

Forget that the lawyers arguing before Judge Phillips in behalf of the constitutionality of DADT don’t seem to take her evidentiary hearing very seriously.  It looks like they staked their case on the legal proposition that the sort of evidence on which Judge Phillips ultimately based her opinion isn't relevant to a facial challenge to DADT on constitutional grounds. Even if they’d done their best to put on a factual case, however, it still might have fallen apart because of any number of contingencies that keep all trial lawyers up at night: perhaps the lawyers putting on the case for DADT were mistaken about what sort of evidence the judge wanted to hear; perhaps they were just out-lawyered by the other side; perhaps, through no fault of their own, their highly credentialed experts didn’t survive their pretrial depositions in a position to testify convincingly and it was too late to substitute different experts, etc. It's because of contingencies like these that ethical trial attorneys always advise clients that the decision to take any case to trial has to be made in the face of extreme uncertainty.

Letting the fate of DADT ride on what transpired inside Judge Phillips’s court is a strange way to make a momentous public decision in a representative democracy.


FRE said...

You admit that you have not had time to study the decision. Why, then, did you write the article? Wouldn't it have made more sense to spend a few days studying the decision and thinking about it before writing the article?

Once you have stated an opinion, it can be very difficult to reverse it even after studying the material. Study first and write later!!

Ron Replogle said...

Sorry. I tried to make it clear that the point I'm making doesn't turn on the legal merits of Judge Phillips's opinion. The point, which is as considered a view as anything else that appears on this blog, is that the innovative methodolgy of settling constitutional questions by issuing (presumptively unreviewable) factual findings is notably anti-democratic whatever its legal rationale.