Wednesday, October 13

Reichen Would Be Proud - As BfT notes, the Log Cabin Republicans surprised us yesterday by filing suit to overturn the uniformed military's "Don't Ask, Don't Tell" policy. The case is being run pro bono by a white-shoe Wall Street firm out of their LA office, and the complaint can be found online here. First dissing the Prez by withholding an endorsement, now seeking redress from activist judges? Geez, who let these radicals in the GOP big tent, anyway? These guys have been living in Blue States for too long.

But seriously, this is an interesting attack on DADT. Some thoughts on the case:

  • First, it is being brought by a group, not individual servicemen. The LCR alleges that its ranks contain both former and active-duty military, and at least with respect to the latter, it intends not to divulge their identity because it would threaten their careers. This smart maneuver separates the policy issues from the sometimes sticky factual situations of the servicemen -- who often are fighting discharge after being caught in compromising situations.
  • Second, and in a related public relations move, the LCR has wrapped the case in the flag and the war on terror, hoping for better atmospherics. Maybe they really are Republicans after all?
  • The case intends to argue that Lawrence v. Texas, by overturning Bowers, fundamentally altered the authority of the government to ban gay servicemen. (Hmm, how come that CMJ sodomy statute is still on the books, eh?)
  • In an interesting stretch, they will reportedly also rely on Hamdi v. Rumsfeld for the proposition that if enemy combatants still have due process rights, then the guys fighting on our side should have nothing less. (The problem being the right to privacy recently discovered in the 5th Amendment's due process clause is qualitatively different from far more traditional right to fair judicial process.) I'll reserve further comment on the arguments until I've seen the briefs.

My general sense is that this case will have traction in both the trial court sitting in the Central District of California as well as the famously liberal Ninth Circuit Court of Appeals (the former home of Justice Kennedy, author of the far-reaching Lawrence opinion). Looks like we're heading for a SCOTUS showdown.