Don't Ask Don't Tell

  • November 17, 2011
    Unpopular Privacy
    What Must We Hide?
    Anita L. Allen

    By Anita L. Allen, a law and philosophy professor at the University of Pennsylvania.

    An expanding library of books addresses the fate of privacy in the Era of Revelation. The central theme of my contribution to the genre sets it apart. My book’s focus is “unpopular” privacy, rather than the “popular” privacy people in the United States, Canada and Europe tend to want and expect government to secure. I define as “unpopular” privacy that is unwanted, disliked, not preferred, and resented by the people it is suppose to benefit or constrain.

    Testing the plausibility ofprivacy paternalism for liberal societies, I engage readers in a wide-ranging discussion of physical privacies of seclusion, isolation, and bodily exposure; and then informational privacies of confidentiality and data protection. Specifically, under the rubric of unwanted physical privacies, I discuss nude dancing, Muslim attire, public health quarantine and super max prison cells; under informational privacies, I take up whether “race” counts as sensitive data, the confidentiality obligations of lawyers, health care providers and other workers, electronic social networking, and online commerce and self-exposure.

    Should youthful Internet users be blocked from websites that collect sensitive personal information, for their own good? Should the law oblige us to forego since the giant consumer goods seller keeps track of our purchases and makes recommendations, or gmail because it pitches ads to us based on words that appear in our private messages to family and friends? Should adults with intimate secrets be banned from publishing them? Is there a possible justification for laws that ban Apps that monitor and store health information in the “cloud”?  

    Unpopular Privacy explores the normative underpinnings of laws that promote, require, and enforce physical and informational privacies. My book struggles to understand the values that prompt real and imagined unpopular privacy mandates.  Persuading libertarians and feminists with whom I identify to endorse regimes of imposed privacy is a significant intellectual challenge; both groups famously caution against the subordinating potential of compulsory privacies.

  • September 19, 2011
    Guest Post

    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.

  • March 9, 2011
    Former Deputy Attorney General Jamie Gorelick, one of the longest-serving in history, details parts of her remarkable career, including tackling prejudices long set in place by a male-dominated profession, in a "Legends in the Law," profile for Washington Lawyer.

    Gorelick, a partner at WilmerHale, served as Deputy Attorney General in the Clinton administration, recounted an early experience as the only woman attorney at a small law firm. On her first day Gorelick said the firm's managing partner assured her that she should feel comfortable at the firm and that she was welcome there. Then the managing attorney proceeded to tell her about the practice's "atmosphere." The managing attorney, Gorelick recounted, said the "guys call each other by their first names and the gals, meaning the secretaries, call the guys by their first names unless there is a client around, in which case they call them by their last names. As he talked about ‘the guys do this and the gals do that,' I asked him, What am I? He said, without skipping a beat, ‘Oh, you're a guy.' This was my first introduction to how odd a duck I was in this water. I had to prove to my colleagues at the firm and in the white collar litigation bar that I was capable of being a litigator."

    Before serving in the Justice Department, Gorelick (pictured at the 2007 ACS National Convention) was the general counsel for the U.S. Department of Defense, when the Clinton administration was struggling with the service of lesbian and gay men in the military. Regarding the development of "Don't Ask, Don't Tell," policy, which Congress and the Obama administration have repealed, Gorelick said it was due to "tremendous resistance in Congress to changing the policy toward gays, and the way in which the president announced it, without letting it percolate at DOD, ...."

    She continued, "I thought at the time, and General Powell has said this since, that ‘Don't Ask, Don't Tell,' was a way station. The senior military officers knew that they had gay service members around them, but the enlisted personnel and the mid-level personnel thought that there weren't any gays in the military. That was because, of course, you were discharged if you revealed that you were gay. That made the views about gay people highly distorted. It seemed inevitable to me that society would become more welcoming to gays."

    Regarding her work with former Attorney General Jane Reno, Gorelick described Reno as having an "enormous appetite and capacity for learning. She made decisions by really burrowing into issues. That meant that her decisions had great intellectual integrity because she really paid attention; she was her own quality control."

    The entire interview is available here.

  • December 3, 2010
    While high-profile members of the Obama administration, including the president, have repeatedly knocked "Don't Ask, Don't Tell" as ineffective and discriminatory, the Justice Department has defended it in federal court causing plenty of consternation from opponents of the law. The administration has responded to the howls of indignation that it is following a longstanding policy of many administrations to defend congressional acts in the courts.

    Adam Winkler, a UCLA School of Law professor, in a piece for The Huffington Post asks whether it's possible "that the president is employing a wily, covert strategy that all but guarantees the courts will find the law unconstitutional?"

    Winkler notes the Pentagon report issued last week that includes a survey showing strong support among service members for repealing the law, which bars lesbians and gay men from serving openly. The Pentagon study also concluded that allowing gays to serve openly presents little risk to the military, and was accompanied by Secretary of Defense Robert Gates' call for Congress to act quickly to repeal the law. Obama also issued a press statement saying the policy "diminishes our military readiness," and "violates fundamental American principles of fairness and equality." As Winkler notes, Gates and Adm. Mike Mullen, chairman of the Joint Chiefs of Staff, have also issued similar statements.

    Winkler suggests that the administration's rhetoric calling for an end to "Don't Ask, Don't Tell," even as it defends the law in federal court might well be a strategy aimed at ensuring the law's demise. (Earlier this year, U.S. District Court Judge Virginia Phillips ruled that the law violates the Constitution's First and Fifth Amendments and issued an injunction against the policy. The Department of Justice appealed the ruling and won a stay of the injunction as the U.S. Court of Appeals for the Ninth Circuit considers the case.)

    Winkler writes:

    That's where these strong statements about how the law is unnecessary for military readiness and combat effectiveness come in. These could be seen as simply rhetorical flourishes designed to appease his base of support. President Obama may yet have another reason for the public comments. His statements and those of the top military officials could be designed to insure that courts strike down ‘Don't Ask, Don't Tell.'


    Obama's statements fundamentally undermine the argument that ‘Don't Ask, Don't Tell,' is required for military effectiveness. He's said, in fact, that the policy actually undermines that goal. So even though the Justice Department is arguing in court that the policy is needed, top military commanders, including the Commander-in-Chief, have admitted that the policy harms the military.

    University of Chicago School Law School Professor Geoffrey R. Stone, also an ACS Board member, noted in a piece for The Huffington Post that recent polling shows most Americans, including Republicans, strongly favor repealing "Don't Ask, Don't Tell." But he notes that stubborn opposition from Republican senators is making it likely that the courts may have the final say on the law.

    Stone writes:

    Ordinarily, we think of the Constitution as designed in no small part to protect minorities from overbearing and intolerant majorities.


    We rely on the courts, which are not accountable to those majorities, to have the independence and backbone to stand up for the rights of the underrepresented, the downtrodden, and the disadvantaged.

    In the "don't ask, don't tell" debate, a federal court has held the policy unconstitutional, and that judgment is pending on appeal. If 41 Republicans in the Senate, representing the views of only 23 percent of the American people, use the filibuster or other procedural devices to prevent an overwhelming majority of the American people and their representatives from bringing fairness, equality and common sense to our national policies, then it will fall to the courts to act. As much as we need courts to protect us against the "tyranny of the majority," it is even more essential for them to protect us against the "tyranny of the minority."

    Read Winkler's full commentary here. For a discussion of the history of "Don't Ask, Don't Tell," and the efforts to repeal it, see video of an ACS panel discussion here.

  • October 18, 2010

    The Department of Justice filed appeals last week of decisions striking down the Defense of Marriage Act and "Don't Ask, Don't Tell," even though President Obama has publicly expressed his disapproval of both laws.

    The Justice Department explained that the appeals were raised pursuant to its policy of defending all federal legislation. Still, the DOJ's decision to appeal raises the question: Just what is the administration's duty to defend?

    Three experts tackled that question during a national conference call hosted today by the American Constitution Society and The National LGBT Bar Association.

    Georgetown University Law Professor Nan Hunter said the Department of Justice should defend the constitutionality of "Don't Ask, Don't Tell," but it should also "go farther than it has" in explaining the administration's opposition as a policy matter, and in explaining how the precedent has changed since the Supreme Court decided Lawrence v. Texas, which struck down Texas's sodomy law.

    "The Justice Department I think could do a great deal more than it has done to put before the court a nuanced analysis of sexual orientation law that accurately reflects what the status of the law is," Hunter said.

    Walter E. Dellinger III, chair of the appellate practice at O'Melveny & Myers and former acting U.S. Solicitor General, went a step farther, suggesting that the Obama administration should appeal the "Don't Ask, Don't Tell" decision, while arguing that the law is unconstitutional.

    "If the president believes that a restriction is harmful to national security, and here the president has said that it is, then surely from the president's own viewpoint it is unconstitutional and he ought to feel free to tell the court that," Dellinger said.

    Georgia State University College of Law professor Neil Kinkopf expressed concern that the Obama administration would not have standing if it argued that the law is unconstitutional, because there would be no dispute or controversy between the parties.

    But Dellinger disputed that characterization.

    "There is adversity here because the government's position is, it is going to comply with the law unless and until a court of final resort tells us otherwise," Dellinger said.

    Listen to a recording of the call here.