Dec. 22 marks the 8th anniversary of President Barack Obama signing the repeal of the discriminatory “Don’t Ask, Don’t Tell, Don’t Pursue” law banning lesbians and gay men from serving openly in the US Armed Forces. Normally, 8th anniversaries are not particularly noteworthy. But normality died during the 2016 presidential campaign and now, with Donald Trump and Mike Pence appearing so eager to erase LGBT progress, it is imperative to recall from whence the LGBT community came and the obstacles overcome.
On Dec. 14, Solicitor General Noel Francisco filed three separate briefs urgently asking the Supreme Court to ignore the nationwide injunction imposed by three lower courts in the ongoing legal battles over the Twitter-announced transgender military ban. He wants the Court to allow enforcement of the ban during the appeals process. Fortified with banal superiority, Francisco said the injunction caused “direct, irreparable injury to the interests of the government and the public” and complained that open trans service “threatens to undermine, disrupt unit cohesion and impose an unreasonable burden on the military that is not conducive to military effectiveness and lethality.”
The rhetoric is familiar, used in numerous lawsuits since the original ban against homosexuals was imposed in 1953 and after President Bill Clinton reneged on lifting the ban in 1993 and agreed to the horrific DADT “compromise.” Some courts upheld the ban and DADT, others ruled for the individual, ordering reinstatement.
But it was the 2004 lawsuit filed by the Log Cabin Republicans (LCR) that sent the Defense Department and the Pentagon into a tizzy in 2010. By then, the DoD had discharged more than 14,000 servicemembers, including a slew of Arabic-speaking translators despite America’s wars in Afghanistan and Iraq. Straight LCR attorney Dan Woods, an unsung hero, was David to the DOJ’s Goliath at trial in the Riverside, California District Court. Discharged translator Alex Nicholson, then-executive director of Servicemembers United, was a plaintiff, buttressed by witnesses including scholars Aaron Belkin, director of the research-based Palm Center, and Nathaniel Frank, author of Unfriendly Fire: How the Gay Ban Undermines the Military and Weakens America; discharged servicemembers: former petty officer 3rd class Joseph Christopher Rocha, former Air Force officer Mike Almy, and former Air Force Staff Sergeant Anthony Loverde.
Woods also had President Obama’s opinion that DADT “weakens our national security” and eloquent support for a congressional repeal from Joint Chief of Staff Admiral Mike Mullen. “We have in place a policy that forces young men and women to lie about who they are in order to defend their fellow citizens,” Mullen said before the Senate Armed Services Committee on Feb. 2, 2010. “For me, personally, it comes down to integrity: Theirs as an individual, ours as an institution.”
Assistant U.S. attorney Paul Freeborne presented no witnesses, questioned LCR’s standing to bring the case, treated Judge Virginia A. Phillips rudely, and argued that DADT was constitutional because it was passed by Congress, with Republican Sen. John McCain’s firm support. “In my view, and I know that a lot of people don’t agree with that, the policy has been working and I think it’s been working well,” he said in that Feb. 2 Armed Services Committee hearing.
The LCR lawsuit proceeded virtually unnoticed—until Sept. 9, 2010 when Judge Phillips ruled that DADT violated the First and Fourth Amendments of the Constitution. She found the “sweeping reach” of DADT restrictions is “far broader than is reasonably necessary to protect the substantial government interest at stake.” Additionally, DADT violates LGBT personnel’s right of association and due process.
“As an American, a veteran and an Army reserve officer, I am proud the court ruled that the arcane ‘don’t ask, don’t tell’ statute violates the Constitution,” LCR Executive Director R. Clarke Cooper told the Los Angles Times. “Today, the ruling is not just a win for Log Cabin Republican service members, but all American service members.”
A month later, on Oct. 12, 2010, Phillips issued a permanent worldwide injunction ordering the military to immediately “suspend and discontinue any investigation, or discharge, separation, or other proceeding, that may have been commenced” under DADT. “The order,” Woods said, “reaffirms the constitutional rights of gays and lesbians in the military who are fighting and dying for our country.”
Chaos ensued. The Pentagon said it would abide by the ruling but the Servicemembers Legal Defense Network (SLDN) cautioned personnel not to come out as they had in 1993 believing Clinton would lift the ban. The DOJ appealed the ruling to the Ninth Circuit and asked Phillips for an emergency stay until the appeal was adjudicated. Phillips said no. DOJ asked the Ninth Circuit for a stay, which it got. LCR appealed to the Supreme Court to vacate the stay. But on Nov. 12, Justice Kennedy said no—without explanation—and DADT was back on.
The chaos of the briefly lifted DADT so shook the military, they started advocating for a controlled repeal. McCain continued to stubbornly block passage but Speaker Nancy Pelosi and Rep. Patrick Murphy, with Sen. Joe Lieberman pushing Republican Sen. Susan Collins, brilliantly maneuvered the bill through the lame duck Congress and got the DADT repeal to Obama. Before his death, McCain came out supporting openly gay DOD civilian professional Eric Fanning as Sec. of the Army and opposing Trump’s trans ban.
This special issue is just a glimpse of the long battle for LGBT full patriotic equality—from gay World War II vets enjoying the freedom of authenticity during the 1993 March on Washington to trans plaintiffs riding in LA’s 2017 CSW Pride Parade.