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• Title: Constitutional Law - "Don't Ask, Don't Tell": Acceptable in an Accepting Society? Cook V. Gates.
• Author : Suffolk University Law Review
• Release Date : January 22, 2009
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 267 KB

Description

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)

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