Intersection of Policy and Law

From the December, 2010 Of Counsel

When Lambda Legal takes a case, we're in it to win. We're seeking equality and while many of our cases are uphill battles and some may be stepping stones to that ultimate goal, our mission is to make full equality real for LGBT people and people living with HIV nationwide. We even try to calibrate our losses to have impact that advances the civil rights of our particular constituencies.

The government, which we often find on the other side of Lambda Legal's cases challenging discriminatory laws and public policies, answers to a different constituency, one that includes, but obviously is not limited to, our communities. So it has some choices to make as its lawyers respond to our arguments: Will they defend, or settle? If they defend, what will they argue? For instance, will marriage equality cases encounter over-the-top arguments slamming gay people as parents? Or will state governments align their defenses with all the credible social science, jettison such points, and use other, more subtle defenses?

This question of how the federal government executes its so-called "duty to defend," referring to the president's obligation set forth in Article II of the Constitution to "take care that the laws be faithfully executed," can be quite complex. That complexity has played out across court briefs and news pages in recent months, as multiple cases challenge the federal government's "Don't Ask, Don't Tell" statute that actively discriminates against LGB people in the nation's armed forces.

Cases brought by Log Cabin Republicans and Air Force Major Margaret Witt (represented by the ACLU) chalked up recent wins on both facial and as-applied challenges in the courts (based in part on very rewarding readings of Lambda Legal's Supreme Court win in Lawrence v. Texas). Both cases have called the question of how the federal government approaches the statute's defense. The question seems all the more layered because the Commander in Chief, Secretary of Defense and many from the top echelons of the military have opposed "Don't Ask, Don't Tell" as discriminatory and contrary to national defense.

After today's failed effort to repeal the law, will the administration choose not to defend it at all? Stepping away in that fashion would toss Congress the question of whether to vote in a substitute legal team—amidst a lame-duck session that has destabilized powerful ranks. Who would that substitute legal defender be, and would having that entity in place be preferable to having the administration mount its own defense?

And if the administration did not defend, and Congress declined to vote in a substitute legal team, what would be the ramifications of having the law remain, though suspended by a court's injunctive relief powers? Is that a sword of Damocles, as the law still exists (and could and has been interpreted differently by other courts)? Or is it rather a perfectly sound bit of legal relief following a successful Constitutional claim?

Lambda Legal has filed amicus briefs in both the pending cases, and our most recent submission focused on the ongoing damage done by suspending the lower court's injunction. For individual servicemembers, "Don't Ask, Don't Tell" has ruined lives and careers. For the nation, its enforcement has squandered millions of dollars and run out talented servicemembers needed for our national security to be all it can be. We believe the evidence is such that the injunction against "Don't Ask, Don't Tell" should be affirmed, to stem the damage to LGB people and the country while the case plays out further.

As to the defense the government may mount, one approach recently championed by Walter Dellinger, who headed the Justice Department's Office of Legal Counsel from 1993 to 1996, is for the government to write an "honest" brief that explains how the court should analyze the law. A government that represents all of us should, at a minimum, forthrightly assess the law that governs all of us, and that includes taking into account the full range of Constitutional infirmities in a statute that upholds discrimination in the face of facts.