By Jon Davidson, legal director of Lambda Legal
On Tuesday, September 20th, we will celebrate the long overdue and unlamented end of Don’t Ask, Don’t Tell (DADT), the destructive and discriminatory law that prevented lesbian, bisexual and gay service members from serving their country openly. This is an amazing achievement, and one for which we need to salute the many brave LGB service members and veterans who, often at great sacrifice, stood up to institutionalized discrimination and argued that their private intimate relationships have no bearing on their fitness for military service and their willingness to make the ultimate sacrifice for our country. We also owe a debt of gratitude to the many organizations, LGBT and allied activists, and politicians who relegated this ignoble law to history.
Lambda Legal has long battled antigay discrimination in the military, filing our first lawsuit in 1975 and representing many service members since then. In 1992, together with Northwest Women's Law Center (now known as Legal Voice) and with assistance from the National Lawyers Guild's Military Law Task Force, Lambda Legal filed a lawsuit on behalf of decorated Army and National Guard veteran Col. Margarethe Cammermeyer who was discharged under pre-DADT regulations because of her sexual orientation. We won a favorable judgment two years later from a federal district judge who held the military’s ban violated the equal protection and due process guarantees of the U. S. Constitution. Col. Cammermeyer’s case was dramatized in the film Serving in Silence. With the ACLU, Lambda Legal also filed the first challenge to DADT, which succeeded at the trial court only to be wrongly upheld on appeal. Most recently, Lambda Legal filed two different amicus briefs in the Log Cabin Republicans v. United States of America, a case that there can be no doubt rushed along the repeal of DADT. On Sept. 1, the Ninth Circuit heard oral argument of the appeal of the trial court’s ruling in that case finding that DADT unconstitutionally burdened the right of liberty established by our seminal Lawrence v. Texas case, by limiting service members’ freedom to engage in intimate relationships if they wanted to keep their jobs. The argument chiefly focused on whether the appeal would become moot once DADT is fully repealed, one of the principal issues addressed by our last amicus brief in the case. While I firmly believe that the district court’s declaratory judgment that DADT is unconstitutional should stand after the repeal of DADT, in light of the tenor of the questions and comments at the argument, it is possible that the Ninth Circuit will vacate that judgment or remand the case to the district court for consideration of whether the judgment should be vacated.