Interesting “Don’t Ask Don’t Tell” argument in the US Court of Appeals today

This morning the US Court of Appeals for the First Circuit heard oral argument in the latest challenge to the military’s craptacular “don’t ask don’t tell” policy.  In the case, Cook v. Gates (formerly Cook v. Rumsfeld), a group of ex-servicemembers who were discharged under the policy have challenged the policy’s constitutionality on a variety of grounds.  Disclosure, before we go any further: the lead counsel for the plaintiffs, Stuart Delery, is a personal friend and former colleague from my Supreme Court days.

The trial court had dismissed the case, concluding that the complaint  (pdf) failed to state a claim.  That is the ruling on appeal before the First Circuit.  A number of other federal courts have heard and rejected challenges to don’t ask don’t tell, but this one is different in a couple of respects: (1) it is the first one to post-date the Supreme Court’s decision in Lawrence v. Texas, and (2) it is the first one to have been thrown out on a motion to dismiss, rather than after a trial or at least some factual discovery preceding a summary judgment motion.

Both sides argued well, and the judges (Jeffrey Howard, a former prosecutor from NH who was appointed by Bush in 2001; Levin Campbell, a senior judge who was appointed to the First Circuit by President Nixon in 1972 after briefly serving as a state and federal trial court judge; and Patti Saris, a Clinton-appointed District Court judge and former federal prosecutor and state trial court judge who was sitting on the Court of Appeals by temporary designation) were obviously well-prepared and understood the significance of the case before them.

It’s very difficult to predict, based on oral argument, how a case is going to come out.  But I’ll venture these comments.  Judge Saris seemed troubled by a number of the positions taken by the government.  She seemed quite concerned that a portion of the statute in question appears fairly obviously to infringe on protected speech, or at least to be so broad as to chill such speech; and she also noted concern that in light of the broad definition of “homosexual,” it would be in practice nearly impossible for any person who self-identifies as gay to avoid discharge — that is, the policy is not (as the military claims) about proscribed conduct, but rather about one’s status as a gay person.  The government lawyer labored mightily to get around these problems, but was not able to set them to rest.

Judge Howard also seemed concerned about the issues Saris noted, as well as the fact that, since the case was decided on a motion to dismiss, the plaintiffs had not had any opportunity to develop a factual record in support of their claims, which he seemed to think made it difficult for the court to answer the questions before it.  He was less active in questioning the lawyers than was Saris, but he nonetheless made clear that he did not see the case as a slam-dunk for either side.  Judge Campbell didn’t say much and was harder to read, but he is well regarded as a careful and fair-minded judge.

So now we wait, probably for at least a couple of months.  Again, prediction based on oral argument is notoriously hazardous, but based on what I saw today, I’d be surprised if the plaintiffs didn’t achieve at least a partial victory in the First Circuit (which doesn’t necessarily mean they win — it just means they get to go back to the trial court and develop their case).

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