Saturday, February 13, 2010

Reagan-Bush era DOJ attorneys argue that "don't ask don't tell" is doomed legally, now that JCS has said it is not necessary for "unit cohesion"


Two attorneys who served in the Department of Justice under presidents Reagan and George H. W. Bush present an interesting argument about “don’t ask don’t tell” on p A21 of the Saturday, Feb. 13, 2010 Washington Post. The attorneys are David B. Rivkin Jr. and Lee A. Casey, partners at Baker & Hostetler. The story title is “Don’t ask don’t tell: the end is near”, link here.

Their argument is simple. Since the Pentagon JCS brass now says that “unit cohesion suffers from the presence of openly gay men or women in the ranks”, the government no longer has a rational basis for making gay people unequal to everyone else in the military. The government also may have no rational basis to regulate private homosexual conduct that is out of sight and not comingled with fraternization. Supreme Court writings in both Lawrence v. Texas (2003) and Romer v. Evans (1996) apply.

Unit cohesion was indeed the centerpiece of the argument for DADT in 1993. The argument also, in the initial stages, incorporated the idea that servicemembers have no privacy (not completely true), and that the military can have rules that would not be acceptable in civilian life. The latter part is largely true (and codified into the 1993 law), but a law like this can still have dangerous effects on civilians, through the “Law of Unintended Consequences”. My own story (detailed elsewhere on the web) makes a case in point.

It’s interesting to speculate on the relevance of this piece to the gay marriage debate, and the Proposition 8 case in California, and a complicated legal battle in Washington DC. There is an underlying existential similarity between the concepts of “unit cohesion” in the military issue and “family” in the marriage issue (even as Rosie O’Donnell puts the concept out in her recent HBO film).

It’s good to see “conservative” lawyers from the GOP era arguing for the end of DADT. Log Cabin may well take credit.

Vashti Murphy McKenzie, a Bishop from the African Methodist Episcopal Church, also has a blog entry on the Post today on ending DADT.

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