Late September has traditionally been associated with the harvest, reaping the products of a long, bountiful summer. This September, though, has left many of us who work to secure the equality of lesbian, gay, bisexual and transgender Americans reaching for the Maalox, unsure of exactly how, when or where our efforts will bear fruit.
There's no doubt that the U.S. Senate dealt us a major setback last week when it failed to move to a vote a defense bill that contained language that would have overturned "Don't Ask, Don't Tell" (DADT), the military's ban on gays and lesbians serving openly. Democrats were unable to gather sufficient support to break a filibuster by born-again conservative John McCain.
A colossal disappointment, to be sure, and one that requires considerably more from President Obama if he is to meet his pledge to have the discriminatory policy ended before the year is out. But last week's Senate train wreck somewhat overshadowed two substantial victories won in court by opponents of the ban. On September 9, in a case brought by the gay political group Log Cabin Republicans, U.S. District Court judge Virginia Phillips ruled that not only does DADT violate the rights of lesbian, gay and bisexual soldiers by depriving them of their rights to due process and free speech; it also has a "direct and deleterious effect" on military readiness. (How could it not, when thousands of military personnel, many with vital training in Arabic, Farsi and other skills, have been expelled?) And on September 24, as activists were still shaking off their Senate-induced depression, another federal judge ordered that Maj. Margaret Witt, discharged under DADT from the Air Force in 2007, be reinstated. Lambda Legal was proud to file a friend-of-the-court brief in this ACLU case.
The roller-coaster events of this September illustrate the dangers for the LGBT community of relying too heavily on promises from our friends. Last week, the U.S. Department of Justice filed papers asking Judge Phillips to limit the injunction she is going to issue against enforcement of DADT so that it would only bar discharges of members of the Log Cabin Republicans organization, rather than halt DADT nationwide. This puts President Obama -- a self-described "fierce advocate" for gay rights -- in the position of continuing to defend a policy he himself has argued is inconsistent with national security and has promised to overturn. But the victories in court also serve as a reminder of the importance of the judicial system in safeguarding the rights of vulnerable populations. The framers of the Constitution realized that majority rule often means mob rule when it comes to the rights of unpopular minority groups. The purpose of a free and independent court system -- an apolitical court system -- is to make sure the protections of the Constitution shield all of us.
That means that, if the government wants to maintain a law that singles out a particular group, it must have at least a rational basis for doing so. The ample evidence presented in both Witt and Log Cabin Republicans, as well as other cases this year, including Perry v. Schwarzenegger (seeking to overturn California's Proposition 8), and Lambda Legal's Collins v. Brewer (seeking to preserve domestic partner benefits for Arizona state employees) proves that those seeking to deny equal rights to LGBT Americans are unable to produce any legitimate reason for it. We intend to prove it again in our case in Hawaii, Young v. Lingle, where we are seeking civil unions for same-sex couples after the Governor vetoed the bill passed by the legislature. Simply put, some people are denying us equality just because they want to-and that's not allowed by the Constitution.
Lambda Legal has long fought the military's anti-gay policies and likely will be filing friend-of-the-court briefs in any appeals of the Witt and Log Cabin Republicans decisions. There are three things each one of us can do at this point, however. First, we can demand that Congress proceed to a vote and pass legislation to end DADT when its members return after the midterm elections. Second, we can tell President Obama and his Department of Justice not to appeal the Log Cabin Republicans decision holding DADT unconstitutional -- a course that 80 members of Congress already have asked him to follow. And third, if President Obama persists in defending DADT before the judiciary, we can insist that he at least exercise his authority as Commander in Chief to put all DADT discharge proceedings on hold while legislation and litigation to end it remain in play. If none of those happen, as we lawyers say, we'll continue to "see you in court" -- the only branch of our government that will have proven that it cares about what our Constitution requires.