The legal challenge to the antigay military policy known as Don't Ask, Don't Tell ( DADT ) is creeping forward with the announcement of oral arguments to be held in a federal courthouse in Boston on March 7.
Cook v. Gates ( formally Cook v. Rumsfeld ) was initially filed in December 2004. It charges that DADT punishes gay, lesbian and bisexual service members for their sexual orientation and for their private, constitutionally protected rights to privacy, speech, and equal protection under the law.
A series of procedural arguments found Judge George A. O'Toole, Jr. granting the government's motion to dismiss in April 2006. He wrote, 'There can be no question that Congress' stated reason for enacting [ DADT ] , even if misconceived or unconvincing, represented more than just a 'bare congressional desire to harm a politically unpopular group.' Rather, Congress' expressed purpose was to assure the effectiveness of the armed forces.'
The First Circuit Court of Appeals accepted the appeal in November. The forthcoming oral arguments are to decide whether or not O'Toole was procedurally correct—they are not on the substance of the legal challenge.
The Servicemembers Legal Defense Network ( SLDN ) is leading the legal fight. 'Our national security and our nation's commitment to equality would be best served by allowing these brave men and women to return to duty,' said legal director Sharra E. Greer. 'We are confident in the strength of our case, and certain in the righteousness of our cause.'
SLDN spokesman Steve Ralls acknowledged that the legal wrangling 'is probably moving a little slower than in the past.' Part of the reason for that is because both SLDN and Pentagon lawyers have asked for extensions of time at various points in the proceedings.
While in one sense frustrating, the delays have been beneficial in that the public and political ground continues to shift in favor of repeal. Given the likelihood that any court decision on DADT, either affirming or striking it down, would be appealed all the way to the Supreme Court, Ralls believes that Congress will repeal the policy before it can completely navigate that legal pathway.
Ralls anticipates that Rep. Marty Meehan, D-Mass., will reintroduce his bill to repeal DADT by the end of February, with two or three Republican cosponsors, and that a Senate version likely will be introduced in March.
In a related matter, Sen. Ron Wyden, D-Ore., has written to Secretary of Defense Robert M. Gates asking, 'In light of the growing call of military leaders to reconsider DADT and the mounting evidence that calls into question the rationale for this policy, I would like you to revisit the issues.'
Wyden specifically sought to learn from Gates 'what, if any, negative effect the repeal of DADT might have on the United States military.'
The Jan. 29 letter recounted how retired Chairman of the Joint Chiefs of Staff John M. Shalikashvili and former Secretary of Defense William Cohen recently have indicated a need to change the policy. Wyden requested a response from Gates by March 16.
Ralls said that Wyden has been an outspoken critic of DADT. Repeal legislation has never been introduced in the Senate. Lead sponsors for that effort are still being discussed.