I was lucky to get to participate in the UCLA Williams Moot Court Competition as part of a team of three students from University of La Verne, College of Law this year. We just turned in our brief earlier this week and oral arguments are coming in late February.
When I first found out that our school was assigned to write a brief in support of the Navy's position, I thought I was in big trouble. On one hand, writing an argument that is opposite of your own point of view is always a useful intellectual exercise. But how on earth was I going to be able to justify a policy that is so clearly discriminatory?
With everything going on around California Proposition 8, I think this is a really important time to have this discussion. Homosexual equality is almost certainly going to be the major civil rights issue of my lifetime. So participating in an event structured around this topic is really important, but since most people that sign up to participate in this event are sensitive to the importance of equality for homosexuals, how can half of them write a brief in support of discrimination? The answer revealed two important revelations, one about the law and one about issues of equality.
The first thing I realized is that the law is sometimes blind to morality. Just because it's wrong to discriminate against a certain class of people, does NOT mean that a law doing so will be held unconstitutional. The law moves slowly and haltingly. Sometimes it is out in front of public trends and sometimes it lags far behind them, but it does so on its own terms. To assume that because something is "right" or "wrong" has any impact on the legal status of the issue is to miss a greater truth about the law itself. This is probably the biggest lesson I could possibly glean from an experience like this one. Regardless of what type of law I practice I will try to remember to separate my moral judgments from my legal conclusions.
The second thing that I realized is that the "Don't Ask, Don't Tell" policy is really on borrowed time, but not for reasons of law. The courts have shown very little desire to challenge the military on their policy. The concept of military deference has amazing power to stop a constitutional challenge (be it due process, equal protection, or free speech) in its tracks. But the reason that "Don't Ask, Don't Tell" won't survive is because it's a bad policy for the military. At a time when the military is in desperate need of recruits, the policy is discharging large numbers of perfectly capable men and women based solely on their sexual orientation in connection with some conduct or declaration based on it. Apparently the education requirements have been lowered to increase recruitment as well as lowering the standards for a relatively clean criminal record. Eventually some person high up in the chain of command is going to look at this situation and say enough is enough. Every day two forces of greater need for soldiers and greater acceptance of homosexuals is going to move the discussion towards reversing the policy from the inside. Once this happens, there will be no need to challenge it from the outside.
One final tangential thought is that President George W. Bush created a lot of this demand for soldiers by extending the "War on Terror" from Afghanistan to Iraq, which requires a much larger force. Ironic that Bush might have accomplished what Clinton was unable to do, end the ban on homosexuals in the military!