HRC Joins Amicus Brief in DADT Challenge
April 4, 2011 by Ty Cobb, Director of Global Engagement
Today, the Human Rights Campaign joined Lambda Legal, Knights Out, Outserve, and the Anti-Defamation League on an Amicus Curiae (friend of the court) brief supporting the Log Cabin Republicans in their challenge of the “Don’t Ask Don’t Tell” law (DADT).
The amicus brief argues that the issue of DADT’s constitutionality will remain relevant even after the law is repealed because some service members will continue to face harm post-repeal. For example, some individuals discharged under DADT wrongly received dishonorable discharges that the government has yet to remedy; many must carry discharge documentation that subjects them to the risk of employment discrimination because the documents reveal their sexual orientation; and others face recoupment efforts by the government for debts incurred as a result of incomplete service (e.g., enlistment bonuses and tuition fees).
The amicus brief also argues that the district court was correct in applying “heightened scrutiny” to the Log Cabin Republicans’ substantive due process claim. This argument is supported by both case law and the Attorney General’s recent announcement that the Administration recognizes a heightened level of scrutiny is applicable to laws that discriminate based on sexual orientation. Finally, the amicus brief argues that the district court erred by dismissing Log Cabin’s claim that DADT violates the plaintiffs’ rights to equal protection under the law.
Moving forward, the government has until April 28th to respond to the Log Cabin Republican’s request that the Ninth Circuit’s stay of the district court’s permanent injunction against enforcement of DADT be lifted. The Ninth Circuit will then schedule a hearing before ruling on whether to reinstate the district court’s injunction against DADT.
While DADT repeal legislation passed Congress and was signed by the President last year, the law does not come off the books until 60 days after the President, Secretary of Defense, and Chairman of the Joint Chiefs of Staff certify that implementation will not harm military readiness. Military officials have said that certification could occur mid-summer.
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