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What Next for Don't Ask, Don't Tell?

Recall that last month, the Ninth Circuit parted from several other federal courts, and held that Don't Ask, Don't Tell might be unconstitutional. It then concluded that the case should be remanded to the district court, "to develop the [factual] record" as to whether Don't Ask, Don't Tell "significantly furthers the government's interest [in 'unit cohesion' and the like] and whether less intrusive means would achieve substantially the government's interest."

It wasn't clear, though, that -- even if the Ninth Circuit refused to rehear the case en banc -- either the government or the challengers would ask the Supreme Court to hear the case (the government asking for Don't Ask, Don't Tell to be upheld even without further district court hearings, and the challengers asking that it be invalidated even without further district court hearings). Nor is it clear that the Supreme Court would agree to hear the case even if it was asked to do so, given that the case had been remanded to the trial court. The Supreme Court tells to be reluctant to consider lower court cases, even federal court cases, when there's no final judgment below, though that's not a categorical rule.

The First Circuit decision may affect this analysis, but it's not clear. (I assume for purposes of this discussion that the First Circuit refuses to rehear the case en banc.) The challengers will be free to petition for certiorari, and there is a final decision here, so that procedural obstacle isn't present here the way it is in the Ninth Circuit. What's more, there is a circuit split -- several circuits have upheld Don't Ask, Don't Tell, but the Ninth Circuit adopted different reasoning that has led to a different intermediate result (remanding to the district court instead of upholding the policy).

On the other hand, the split is "soft," in that the bottom line even in the Ninth Circuit may end up being the same as in the other circuits. And the factfinding in district court on remand from the Ninth Circuit may well illuminate the issue, so that there might be good reason for the Court to wait.

The most important factor here, I think, will be whether the Administration files a brief in support of the certiorari petition, arguing that the Court should hear the case, though of course they would want the Court to affirm rather than reverse. If the Administration so argues, perhaps on the grounds that the government shouldn't be burdened with defending the case further in the Ninth Circuit (and perhaps based on the unstated concern that the longer it takes for the issue to reach the Court, the more likely it will be that the Court's personnel will change in a way that favors the challengers), then I expect the Court will be inclined to agree. The Executive Branch's views on whether to grant certiorari in a case are generally quite influential.

On the other hand, if the Administration argues that the Court should wait until after the factfinding in district court on remand from the Ninth Circuit is done, and the Ninth Circuit has another chance to review the case, then the Court would likely deny certiorari and leave the matter for a later day. That, at least, is my tentative sense of the matter.

Guest 999:
I predict the First Circuit goes en banc. Note that only member of the panel (Howard) is an active First Circuit judge. Some of the other (more influential) members of the Court will definitely want to get a word in on this.
6.9.2008 7:09pm
krs:

If the Administration so argues, perhaps on the grounds that the government shouldn't be burdened with defending the case further in the Ninth Circuit (and perhaps based on the unstated concern that the longer it takes for the issue to reach the Court, the more likely it will be that the Court's personnel will change in a way that favors the challengers), then I expect the Court will be inclined to agree

Do you really think the Justices would be influenced by that "unstated concern"?
6.9.2008 8:46pm
Randy R. (mail):
Sam Nunn, the guy who is probably the most responsible for this the DADT compromise, has recently stated that the policy should be "reviewed." Some people have speculated that he is angling for the VP on the Dem ticket, and getting DADT removed would remove one reason to NOT have him as a VP.

Not sure if that's true. He never said that he wants DADT changed or altered, much less removed. He may just be playing games at this point.

Nonetheless, I think DADT will be removed politically before it is ever struck down by the courts.
6.9.2008 9:12pm
Eugene Volokh (www):
krs: I meant that this might be a reason why the SG's office might petition for cert, though they wouldn't say so in the petition.
6.9.2008 9:28pm
Ryan Waxx (mail):
I'm glad that someone is looking at weather the "Don't ask" part of the compromise is being looked at seriously. Certain anecdotes I've heard suggest a whole lot of aggressive asking is going on, which if true turns a reasonable compromise into a witch hunt.
6.9.2008 10:20pm
Richard Aubrey (mail):
Aggressive asking...?
Been a long time since I was in, about forty years. But the question still arises. "No, sir. I'm not."
So it's a lie.
What then?
Nothing, as far as I know, unless the asker has review authority over the asked. And if the asker thinks he knows better and hammers the guy on the review, it is up to him to prove...what, exactly?...on the reclama.
6.9.2008 10:31pm
Dave N (mail):
With the election very much in doubt, might the current SG decide not to seek cert. because the new SG (particularly in an Obama Administration) might take a contrary view?
6.9.2008 10:39pm
neilalice:
I do a sizable amount of work in the Ninth, and I've noticed in the past year or two an increase in the number of, shall we say controversial, opinions that involve a factual remand. I firmly believe that this is a deliberate tactic and that the Court is insulating more of their cases from cert by inventing factual disputes that don't exist.

Witt is a 12(b)(6) case. Just what kind of facts are they going to develop on remand -- the opinion already lists nearly three pages of facts -- that weren't pleaded the first time around? Sure, the opinion invents a new legal standard, but since the plaintiff was alleging the policy was unconstitutional, didn't she already have every incentive to plead everything she could think of?

The remand strikes me as a deceitful attempt by the Court to avoid Supreme Court scrutiny.
6.9.2008 11:36pm
Oren:
So it's a lie.
Most people that take an oath (and myself, despite not having done so) consider lying to be beneath the dignity of the uniform and in utter contempt of all the values it is supposed to represent.
6.10.2008 1:29am
PersonFromPorlock:

Most people that take an oath (and myself, despite not having done so) consider lying to be beneath the dignity of the uniform and in utter contempt of all the values it is supposed to represent.

The Air Force, at least, has an honor code that says "I will not lie, cheat or steal, or tolerate among us those who do." This was regarded (in my day) with derisory amusement by serving members. The reality in the military is that if the Boss says the sky is pink, the sky is pink and its actual color is irrelevant. People die and missions fail because of this but the military really isn't in the truth business, it's in the "keep your head down and shuffle" business.
6.10.2008 4:56am
Richard Aubrey (mail):
Oren,
Nice words. But if the boss asks you if you're gay and you lie--thus offending Oren who thinks it's a bad idea for somebody else to lie about such things--what's he going to do about it?
The practical point is, afaik, nothing but, possibly, get himself into real trouble if he screws around with the guy's OER or EER.
When I was in, an appeal over a bad review was called a reclama. Those were taken very, very seriously. Perhaps there's a new name for the process, but I can't imagine they're not taken seriously.

"Sure I downchecked him. He told me he wasn't gay and I'm absolutely certain he is. How do I know? Umm. Well. Did I ask? Oops. I just said I did. Oops."

Aggressive asking isn't getting anybody anyplace they want to go, if they stop and think about it.

And if the asker doesn't have review authority...he has zilch.
6.10.2008 7:53am
TC (mail):

I'm glad that someone is looking at weather the "Don't ask" part of the compromise is being looked at seriously. Certain anecdotes I've heard suggest a whole lot of aggressive asking is going on, which if true turns a reasonable compromise into a witch hunt.


And what specific anecdotes have you heard?
6.10.2008 8:39am
cjwynes (mail):
Given recent trends, if they took the case now all we'd be likely to get is a plurality opinion penned by the Chief Justice in which he says that a facial challenge should fail. Heck, Breyer might even join that -- if there's anything he loves as much a social science statistics, it's remanding things for more factual inquiry.

It would seem better to wait for a case where the record below is fleshed out really well.
6.10.2008 10:16am
Pol Mordreth (mail):
Well, I was in from '95 to '02, in submarines. Granted, submarines have a rather unique culture in the services, where the normal hard lines between patgrades are blurred due to the close quarters and cameraderie. We had 3 gay men serving on my boat (out of 165) and everyone knew it. As long as the command had plausible deniability to say that they didn't know, everything was fine. These men even brought their partners to command functions. At another station where I was an instructor, another instructor was a lesbian. Again, everyone knew it. It wasn't an issue until she sent wedding invitations to the entire command and put her announcement in the paper. She was angling for a discharge, and got it. And, since it was under DADTDPDD, she got a general discharge which turns honorable in 6 months, since she hadn't gotten in trouble for anything during her service. There was no 'agressive asking' at any of the commands where I was, unless you count the DI's in basic asking everyone with piercings, "only faggots get their ears peirced.... you a faggot, son?" and that was simply chalked up to the standard boot camp harassment.

Respectfully,
Pol
6.10.2008 10:22am
Pol Mordreth (mail):
wow, spelling... pierced, that is.
6.10.2008 10:25am
David M (www):
The Thunder Run has linked to this post in the - Web Reconnaissance for 06/10/2008 A short recon of what's out there that might draw your attention, updated throughout the day...so check back often.
6.10.2008 12:51pm
Brian G (mail) (www):
DADT is a policy that has long since become outdated. But, it is not for the courts to change, only Congress.
6.10.2008 3:10pm
Randy R. (mail):
Richard: "Been a long time since I was in, about forty years. But the question still arises. "No, sir. I'm not."
So it's a lie.
What then? "

Why would an officer ask the question in the first place? Merely asking any one in the military is itself a violation of the policy. Therefore, if asked, the proper response is to report the person. Good luck with that!

The full phrase is Don't Ask, Don't Tell, and Don't Pursue. Unfortunately, there have been many servicemen and women who are gay have kept their part of the bargain -- they didn't tell anyone. but nonetheless, rumors start circulating, and the military started poring over their emails, off duty activities and so on to build a case that a person is gay, which again is a clear violation of the policy. But at that point, there is little you can do about it.
6.10.2008 4:15pm
Richard Aubrey (mail):
Randy. I don't know why anybody would ask. But the original comment was in response to a reference to "aggressive asking".
I don't see aggressive asking going anyplace.
6.10.2008 9:25pm
Pol Mordreth (mail):
Randy R:
the full text is actually Don't Ask, Don't Tell, Don't Pursue, Don't Display. In my experience, as long as the officers could reasonably disavow knowledge, even when they knew someone was gay it didn't matter. We did have one incident when I was stationed at Orlando. An individual ended up in the paper at a gay pride parade, and told the paper that he was active duty. Once the clipping made it to the command (I don't know how) he was investigated (required under the terms of DADTDPDD) and discharged.

I think that the policy is wrong, but until the Congress gets the stones to change the UCMJ and remove sodomy from the list of felonies, it's the only compromise that prevents gay servicemembers from going to prison. And yes, sodomy is enforced against hetero soldiers and sailors as well, usually in cases of said member being caught by the local cops or base cops paying for sex or being seen having sex (oral usually) in some public area. There is a very strict definition of sodomy which covers everything except genital to genital contact. The only reason for the compromise is because of this.

Oh, and as far as "agressive asking", it's prohibited. All a sailor had to do if they felt that they were being pressured by the command in violation of the DADTDPDD policy was involve the chaplain. That is one of their essential functions, to buffer junior personnel from unlawful orders, as they are outside the chain of command but were not seen as bucking said chain. (In my experiences. YMMV)

Respectfully,
Pol
6.11.2008 8:18am