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“Don’t Ask, Don’t Tell” kills 1st Amendment

Renowned Constitutional Scholars Ask First Circuit to Consider ‘Don’t Ask, Don’t Tell’ Challenge

Experts Argue That Failure to Do So Renders First Amendment a ‘Dead Letter’

WASHINGTON, Nov. 27 /U.S. Newswire/ — A group of renowned constitutional scholars has filed a brief asking the First Circuit Court of Appeals to reverse a District Court ruling and allow a lawsuit to move forward in an appeal by 12 military veterans battling the “Don’t Ask, Don’t Tell” law prohibiting military service by lesbian, gay and bisexual Americans. The nine recognized experts filed the amicus brief, in support of the service members in Cook v. Rumsfeld, last week. Those signing the brief include Akhil Reed Amar, Southmayd Professor of Law at Yale Law School; C. Edwin Baker, Nicholas F. Gallicchio Professor of Law at the University of Pennsylvania Law School; Erwin Chemerinsky, Alston & Bird Professor of Law and Professor of Political Science at Duke Law School; Owen M. Fiss, Sterling Professor of Law at Yale Law School; Pamela S. Karlan, Kenneth and Harle Montgomery Professor of Public Interest Law at Stanford University; Andrew Koppelman, Professor of Law at Northwestern Law School and Visiting Professor of Law at the University of Chicago Law School; Kathleen M. Sullivan, Stanley Morrison Professor of Law and Former Dean at Stanford Law School; Laurence H. Tribe, Carl M. Loeb University Professor at Harvard Law School; and Tobias Barrington Wolff, Professor of Law at the University of California, Davis Law School and Visiting Professor of Law at the University of Pennsylvania Law School.

The brief states, “If the ‘Don’t Ask, Don’t Tell’ policy does not require careful and searching constitutional scrutiny, then the First Amendment is a dead letter in the U.S. military.” It also argues that “Don’t Ask, Don’t Tell” “offends a fundamental right of personal autonomy” by forcing lesbian, gay and bisexual service members to not only be secret about a fundamental aspect of their identity, but by also forcing them to affirmatively present themselves as heterosexual in public when they are not. “Don’t Ask, Don’t Tell,” the authors say, denies “the freedom of mind that protects the individual from being compelled to affirm an identity, idea or belief that is not his own.”

The constitutional scholars also say, “We are aware of no other law in America today that regulates a group of citizens and then prohibits those very citizens from identifying themselves as the regulated population and speaking up on their own behalf … There is no greater threat to First Amendment values than a law that skews political debate in this manner.” The Supreme Court, they conclude, “has never upheld a prohibition on the speech of military personnel as restrictive as ‘Don’t Ask, Don’t Tell.'”

Cook v. Rumsfeld, filed on behalf of 12 veterans of the war on terror who were dismissed under “Don’t Ask, Don’t Tell,” has been appealed to the First Circuit following an April District Court decision granting the government’s motion to dismiss the case. The suit was filed on behalf of the plaintiffs by Servicemembers Legal Defense Network (SLDN) and the law firm of Wilmer Cutler Pickering Hale and Dorr LLP. In their main brief, the plaintiffs argue that “Don’t Ask, Don’t Tell” violates their rights of substantive due process, equal protection and freedom of speech.

C. Dixon Osburn, executive director of SLDN, said, “This is an important brief for the court to consider as it explores, in depth, the fundamental First Amendment rights that are at stake in this case. The law is a federal gag order that prevents lesbian, gay and bisexual service members from being honest with anyone, including family and friends. No American who wears our nation’s uniform, and volunteers to go into harm’s way in defense of our ideals, should themselves be denied the freedoms they fight to uphold.”

More information on Cook v. Rumsfeld, copies of the First Amendment brief and other information related to “Don’t Ask, Don’t Tell” is available online at http://www.sldn.org.


Servicemembers Legal Defense Network is a national, non-profit legal services, watchdog and policy organization dedicated to ending discrimination against and harassment of military personnel affected by “Don’t Ask, Don’t Tell” and related forms of intolerance. For more information, visit http://www.sldn.org.

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