Today in 1996: SCOTUS refuses first challenge to “don’t ask, don’t tell”

October 21, 2011

Today in Legal HistoryOn October 21, 1996, the U.S. Supreme Court refused to hear the appeal of Thomasson v. Perry, a challenge to the then-recently introduced military policy of “don’t ask, don’t tell” (DADT).

DADT took effect on December 21, 1993 via the Clinton administration’s issuance of Defense Directive 1304.26, which modified the existing military policy (which itself was codified by Congress on November 30, 1993) that banned any homosexual or bisexual individual from serving in the military.

The Directive, while unable to override the official policy banning gays in the military, intended to soften the policy’s blow by barring military or appointed officials from inquiring into service members’ sexual orientation.

Thomasson is noteworthy because it is the first legal challenge to DADT to reach the Supreme Court, despite the fact that the Justices refused to hear it (though Thomasson wasn’t the first legal challenge to DADT; that distinction belongs to Able v. U.S.).

The case involved Paul Thomasson, a naval lieutenant who challenged his discharge from the Navy after he disclosed that he was gay.

Thomasson claimed that the policy was unconstitutional in that it violated the Equal Protection clause of the Fourteenth Amendment and the First Amendment right of freedom of speech.

The district court disagreed.

The court of appeals affirmed, holding that DADT didn’t violate protections against free speech because the law didn’t target speech declaring homosexuality, but instead targeted homosexual acts and propensity or intent to engage in homosexual acts, only using speech as evidence of such.

In addition, the court held that service members who engage in or have a propensity or intent to engage in homosexual acts are not, as a group, a suspect class, and thus are not entitled to any increased safeguards under the Equal Protection clause.

By denying Thomasson’s petition for writ of certiorari, the Supreme Court effectively affirmed the appeals court, but also declined to provide any binding precedent on the issue.

In fact, in the almost 18 years of DADT’s existence, the Supreme Court has successfully avoided making any kind of ruling on the issue, despite the plethora of legal challenges made.

Many may be surprised by this fact, since a recent court ruling permanently enjoined enforcement of DADT, but that case never made it to the Supreme Court (the ruling was stayed pending appeal, leaving DADT in effect).

It wasn’t for lack of the government’s trying that the Supreme Court never heard it.

Rather, the Supreme Court sidestepped taking a stand on the issue because Congress did it first: the Don’t Ask, Don’t Tell Repeal Act, as implied by the name, repealed DADT.

The Act was one of the last pieces of legislation passed in 2010, with it being signed into law by President Obama on December 22, 2010.

The Act didn’t immediately put an end to the policy, but phased it out over the next nine months.

As a result, DADT is no longer in effect as of September 20, 2011.

This change, which many would call a civil rights advancement, received no assistance from the Supreme Court.

Considering the nature of the issue – one that is both a national security issue and a hotly debated social issue – this isn’t really that surprising, since the Court is very hesitant to make rulings on either of those topics, much less both.

Luckily for the Justices, the other two branches of government stepped up and made a decision instead.