Constitutional Law - "Don't Ask, Don't Tell": Acceptable in an Accepting Society? Cook V. Gates

By Heyman, Brett E. | Suffolk University Law Review, Spring 2009 | Go to article overview

Constitutional Law - "Don't Ask, Don't Tell": Acceptable in an Accepting Society? Cook V. Gates


Heyman, Brett E., Suffolk University Law Review


The "Don't Ask, Don't Tell" statute (DADT), enacted by Congress in 1993, allows homosexuals into the military if they do not engage in homosexual conduct. (1) Congress created DADT to preserve the morale and unit cohesion standards of the military, but the statute is often scrutinized in light of First Amendment principles. (2) In Cook v. Gates, (3) the United States Court of Appeals for the First Circuit considered whether DADT's requirement of separating service members for homosexual admissions violates their First Amendment right to freedom of speech. (4) The majority reasoned that DADT does not violate service members' First Amendment rights because it treats their verbal admissions of homosexuality as evidence of homosexual conduct and does not punish for mere speech. (5) Conversely, Judge Saris reasoned in his dissent that DADT's presumption of homosexual admissions as evidence of conduct is a "dead letter" and "chills" service members' speech. (6)

On December 6, 2004, twelve former United States military members filed suit against the United States, the Secretary of Defense, and the Secretary for Homeland Security in the U.S. District Court for the District of Massachusetts claiming wrongful separation under DADT. (7) More specifically, the plaintiffs alleged that by prohibiting open homosexuality, DADT violated their substantive-due-process rights, denied equal protection based upon sexual orientation, and violated their First Amendment right to speak freely of their sexual orientation. (8) The government moved to dismiss, arguing that the due-process and equal-protection claims fail because Congress's interest in unit cohesion passes rational-basis review. (9) The government also claimed that DADT does not violate the First Amendment because the plaintiffs' speech is used only as evidence that a service member committed, or has propensity for, homosexual conduct. (10)

The district court held that all of the plaintiffs' claims failed as a matter of law and dismissed the complaint. (11) The court first determined that rational basis was the appropriate standard of review for constitutional questions in a military setting. (12) Next, it dismissed plaintiffs' due-process and equal-protection claims, reasoning that the military's unit cohesion and disciplinary system passed constitutional muster as rational reasons for enacting the statute. (13) The district court then rejected the plaintiffs' First Amendment claim, reasoning that DADT separates members from the military based only on homosexual conduct and uses verbal admissions of homosexuality merely as evidence to prove a propensity to engage in such conduct. (14) The Court of Appeals for the First Circuit affirmed the district court's judgment. (15)

In 1993, Congress enacted DADT, which mandates separation of a service member who "engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts." (16) Service members routinely challenge DADT's constitutionality as a violation of the First Amendment right to free speech. (17) Specifically, members of the armed forces often challenge DADT's rebuttable presumption that a member who "stated that he or she is a homosexual or bisexual" shall be separated from the military unless that member can demonstrate that "he or she is not a person who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts." (18) Courts generally find this "statement presumption" constitutional because it is used to evidence homosexual conduct rather than to punish homosexual viewpoint or status. (19) Other courts have upheld DADT's constitutionality based on the government's legitimate purpose for creating it: to target conduct, not speech. (20)

Courts often defer to Congress's judgment in matters involving the military. (21) This is due to the military's separate, quasi-society nature, which warrants deference in order to maintain a heightened level of order.

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Constitutional Law - "Don't Ask, Don't Tell": Acceptable in an Accepting Society? Cook V. Gates
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