October 26, 2010

Palm Center Response To Professor Tobias Wolff

Santa Barbara, Calif. – Professor Tobias Wolff argued in a recent column on the Huffington Post that even if the Obama administration dropped its appeal of the Log Cabin Republican case, this would not necessarily be the end of “don’t ask, don’t tell” (DADT), as the statute would remain on the books.  His expertise and commitment on this issue are unquestioned.  We would respectfully submit, however, that there is room to disagree as friends.

Professor Wolff gives more weight to DADT still being on the books than is warranted.  If an injunction creates a stable period during which DADT is not enforced and gay and lesbian service members no longer have to struggle to maintain secrecy, the fallacy of the policy would be exposed in a decisive way.  There would be no going back.

In addition, we question two related points in his analysis.  The most important is the military context of the case.  Professor Wolff argues that the court should have limited its injunction to members of the Log Cabin Republicans, but that would have been militarily inappropriate. Judge Phillips has a responsibility to craft an injunction in the scope necessary to give complete relief to the parties.  She cannot, for reasons of military ethics, craft an order that requires the military to check the political affiliation of its members and only give constitutional protection to members of the Log Cabin Republicans.  The military has a constitutional and ethical obligation to remain politically neutral.

Furthermore, the nature of DADT makes it impossible in practical terms to limit the persons protected by the ruling.  In effect, Professor Wolff would have the court order all gay service members to come out at once to qualify for protection.

Second, while Professor Wolff’s explanation of the authority of lower federal courts is correct in many cases, it doesn’t apply here.  In the typical federal case, a losing party in one district court might choose to keep fighting and re-litigate the same issue in other federal courts across the country.  The ruling of one federal trial court can’t bind another. However, this is not a problem when the losing party (in the Log Cabin case, the government) accepts the broad scope of the injunction.  Within days, the Department of Defense issued orders to comply with the ruling world-wide.

Professor Wolff’s concern is that several years from now, if the statute is not repealed in Congress, a new Commander in Chief could give the military different orders and direct that discharges resume.  That’s theoretically possible, but unlikely for practical reasons, because once DADT is suspended, it will be very difficult both operationally and politically to put the toothpaste back in the tube.