How Will Don't Ask Don't Tell Ruling Affect Already Discharged Gay Service Members?

Opponents of Don't Ask Don't Tell, the 17-year-old military ban on openly gay service members, celebrated a victory last week. California Federal judge Virginia Phillips issued a ruling striking down the law that bans gay men and lesbians from serving openly in the U.S. military. She said it violates due process and freedom of speech. The ruling will be appealed by the justice department. How will this ruling affect former service members who were discharged for being gay?

Guests

Ari Waldman teaches sexuality and the law at California Western School of law - he is an expert in military law and LGBT law.

Joseph Rocha was honorably discharged from the U.S. Navy in 2007 after coming out as being gay. He was also a witness in the lawsuit brought by the Log Cabin Republicans.

Read Transcript

MAUREEN CAVANAUGH: I'm Maureen Cavanaugh. You are listening to these days on KPBS. The flurry of legal events last week about the military's don't ask don't tell policy has left many unanswered questions about the status of gays and lesbians in our nation's armed services. The don't ask don't tell policy requires that gay military personnel whose sexual orientation is discovered or disclosed must be discharged. Last Tuesday a federal judge in Riverside issued an injunction against the military banning the enforcement of that policy but just days later the Obama administration, despite the presidents often stated objection to don't ask don't tell, issued its intention to appeal the judge's ruling and asked for a stay on the ban. So it's not surprising that most legal rights advocates have been advising the members of the military to maintain the status quo keeping their sexual orientation secret. Another angle to this very complicated issue is if the don't ask don't tell is overturned either by the courts or Congress will gay service members who were discharged because of the policy be allowed to reenter the military. I'd like to introduce my guests. Ari Waldman teaches sexuality and the Law at California Western school of Law. He is an expert in military and LGBT law, Ari, welcome to these days. Thank you very much.

ARI WALDMAN: It's a pleasure to be here.

MAUREEN CAVANAUGH: Joseph Rocha was honorably discharged from the military 2007 after disclosing he was gay. He was also witness in that lawsuit in federal court. Joseph, thank you for coming in.

JOSEPH ROCHA: Good morning, thank you.

MAUREEN CAVANAUGH: We don't have an awful lot of time for audience to join in on the conversation but if you would like to, here is the number to call. Ari, Judge Phillips placed an injunction on don't ask don't tell last week, the appeals process has begun. In a sense they have warned the service members not to come out. From a legal perspective does the injunction offer protection from the service members who decide they want to disclose they are gay?

ARI WALDMAN: Technically after Judge Phillips issued the injunction it means that don't ask don't tell is no longer good law and that according to a judge's decision, no longer could the don't ask don't tell policy be implemented or no longer could an investigation into a service member's sexuality be initiated no matter where they are in the world. However, the uncertainty caused by the request for a stay and the uncertainty as a result of where this is going to go should give servicemembers a little bit of caution coming out.

MAUREEN CAVANAUGH: And if I may, in just plain terms, what would be the risk run by someone in the military now coming out and announcing that they are gay or lesbian, what could possibly happen in the future to make them regret doing that?

ARI WALDMAN: It's tough to answer the question. However, I could certainly see a situation in which a statement to US service member's sexuality at the moment could be used as evidence 10 days down the road after a stay has been issued in order to initiate an investigation, in order to initiate proceedings for honorable or dishonorable discharge. Even though today it might be okay to tell your commander that you are gay, that doesn't mean necessarily that a couple days from now who is in favor from the don't ask don't tell policy does not want homosexuals to be able to serve openly in the military won't use that as a basis for finding out other information in order to start an investigation.

MAUREEN CAVANAUGH: I see. So it is very complicated. I know that you draw comparison to the proposition a trial lawyer (INAUDIBLE) Judge Vaughn Walker ruled that the ban on gay marriage is unconstitutional. There were lots of questions about whether gay people could marry during the appeals process. Is this issue, don't ask don't tell, more complicated?

ARI WALDMAN: With Judge Walker's decision an emergency stay was issued almost immediately after his decision came down and instead of, like in this case where the Justice Department has asked both Judge Phillips and plans, if she doesn't grant a stay, plans to ask the Ninth Circuit. Judge Walker was able to avoid that by issuing the stay himself. So there was no interim period of uncertainty. Here Judge Phillips has made it clear this is unconstitutional matter what and she's going to take her time as any thoughtful judge should to decide if the stay is warranted.

MAUREEN CAVANAUGH: And there's no guarantee that there will be a stay?

ARI WALDMAN: There's no guarantee that there will be. A unique feature of the judge's decision was it was the result of a facial challenge, meaning the log cabin Republicans claimed and argued successfully that don't ask don't tell is unconstitutional no matter what not just does apply to a particular service member. A unique feature that is not so clear that Judge Phillips even, as a basis for even issuing an injunction, even as she said so clearly this was unconstitutional, no matter what the circumstances.

MAUREEN CAVANAUGH: Joseph I want to get you into the conversation. How did you feel when you heard that Judge Phillips had issued this injunction against the military's don't ask don't tell policy?

JOSEPH ROCHA: I think that the core of my celebration was when she wrote that it was unconstitutional. I think that was a landmark victory, a landmark decision. The injunction I think that we all took it a little cautiously. I think we did expect the Department of Justice had been threatening, had been working very actively for years actually to prevent this case from ever happening. It had been going back and forth for about six years before we even got a court date and before I was ever honored to have the opportunity to be a part of it. So the injunction was definitely received with mixed messages and with mixed feelings in that it was unprecedented but at the same time we knew that there was a good chance it wasn't going to last very long.

MAUREEN CAVANAUGH: Can you in a brief period of time tell us what your experience was that led to your honorable discharge in 2007?

JOSEPH ROCHA: Sure, so when I graduated from boot camp I was first a military police officer and I asked to be sent to the Middle East. When I got there I asked to specialize in explosive detection and I was able to do all those things and has had explosive handling detector (INAUDIBLE) was a unique unit where I found an amount of documented abuse by the Navy such as being tied to chairs and force fed dog food or forced to simulate gay sex on camera by my supervisors. What I presented through the log cabin Republicans and what I said to Justice Phillips was mildly different but it not only did I not have my First Amendment right to be who I am but I also didn't have my Fifth Amendment right to keep myself safe and to protect myself in that kind of environment. So whereas this abuse began to escalate and whereas they took more emphasis on my sexuality I realized that it was going to be my sexuality versus the abuse. And I realized very quickly, and Justice Phillips believes, and my logic was that it would have been a lot easier to have kicked me out for being, or allegedly being gay and having just come out of boot camp than to have fallen through with prosecuting an entire chain of command for corruption and abuse and we see these scenarios go into the military forever.

MAUREEN CAVANAUGH: Thank you so much for telling us that we do have to take a short break and we have a pledge schedule. When we return we will continue our conversation here on these days. You are listening to these days on KPBS.

[[NEW SEGMENT]]

MAUREEN CAVANAUGH: I'm Maureen Cavanaugh and you are listening to these days on KPBS. My guests are Ari Waldman, he teaches sexuality and the law at California Western School of Law and Joseph Rocha was honorably discharged from the US Navy in 2007 after disclosing he was gay. And we're talking about the recent flurry of legal events regarding the don't ask don't tell policy. It has been, basically there's been an injunction placed upon it by a federal judge and right now the Obama administration is saying that it's going to appeal that particular injunction. Now let me ask you, Ari, the Air Force decided to actually announce that it was indeed going to stop enforcing the don't ask don't tell. What makes it different from the other branches of the military?

ARI WALDMAN: Well the Air Force SJA, one of the highest ranked legal officers of the Air Force issued a very specific memo to all of the staff members saying here is the injunction. It says the don't ask don't tell is unconstitutional. We admit we are not sure what's going to happen here but as of now we are not going to enforce it. That's different from the memo, slightly different, a subtle but important distinction from the memo issued by the Department of Defense which said there is this case going on, there was an injunction however because of an expected appeal by the Department of Justice there's a lot of uncertainty. So the memo from the Department of Defense ended by saying there is uncertainty, we are not going to order a particular thing except we will, the Department of Defense will follow the law. That's hard for SJA a JAG attorney or an investigator to interpret other than I'm not sure what to do so let me just continue what I'm doing now. The Air Force is a lot more specific in saying we are no longer going to enforce don't ask don't tell.

MAUREEN CAVANAUGH: Now, Joseph, part of your personal story that I've heard is that you would like to reenlist if don't ask don't tell is finally overturned. Do you still feel that way?

JOSEPH ROCHA: Absolutely. My feelings toward the military and my feelings toward a military career and what that means and the core value of the military didn't change throughout the abuse that occurred in the Middle East or throughout the time subsequent to it where I had the opportunity to really reflect on what had happened and how little I had done to provoke it and how little I could have done to prevent it. I certainly want nothing more than to continue my career. I don't think that it was anywhere near finalized. Or neither did I achieve half of what I wanted to achieve. And I also think that it's not so much personal anymore the way that was before where it was just a want to be an officer for me. I also feel that after this experience having been part of this trial as well I think there is a responsibility to the next generation of gay and lesbian youth who choose to serve in their country's armed forces that they know that there are senior and high-ranking gay and lesbian officers who will make sure that they are safe and that everyone, all the troops are treated equally and have the same opportunity to give opportunity.

MAUREEN CAVANAUGH: I'm wondering is there anything in this ruling or anything that's going on in Congress that speaks specifically to reinstatement?

JOSEPH ROCHA: Nothing specifically in the injunction about reenstatement, but saying don't ask don't tell is unconstitutional that means that no longer could an individual's sexuality be a basis for discharge or be a basis for not being able to enlist in the military or not being able to continue to be promoted and make rank etc. So there should be no barrier to any person like Joseph or any other of the estimated 3 to 4000 people that would enlist if don't ask don't tell were repealed and gays and lesbians were allowed to serve openly. If this injunction stands or eventually if the legislation is repealed by Congress there should be no barrier to enlistment or reenlistment.

MAUREEN CAVANAUGH: Let's take a call, Craig is calling from Solana Beach. Good morning, Craig and welcome to these days.

NEW SPEAKER: Thank you, good morning. I've always wondered how the discrimination against gays and lesbians is based on religious scriptures Genesis, I mean not Genesis, Leviticus and the New Testament stuff, from a secular humanist or atheist point of view there's absolutely no justification for them. So I'm surprised there's never been a lawsuit brought about the don't ask don't tell that's based on the separation clause of our Constitution.

MAUREEN CAVANAUGH: Let me throw that to you, Ari.

ARI WALDMAN: Well, I agree that a lot of the discrimination that the gays and lesbians feel on a daily basis is based on a religious background. However, to be particular about this policy, the military and Congress in 1993 always justify don't ask don't tell on the basis of the fact that, or the argument that gays and lesbians do disrupt unit cohesion and military, and prevent the military from being ready to fight wars based on the supposedly awkward relationship between a heterosexual male servicemember and homosexual male service member or a heterosexual female and a homosexual female in the, quote-unquote, in the foxhole, or in the stress of a military, military target. However, the unique feature of Judge Phillips decision and the log cabin Republicans case in general was that these particular arguments often showed, and not only suggested, but showed that military readiness and the unit cohesion are found to be negatively affected by don't ask don't tell. So if the argument is the don't ask don't tell is important for unit cohesion and military readiness but we have a court case and a transcript at trial that showed that actually don't ask don't tell has a deleterious affect by not allowing people to be who they are, by not allowing units to stay together, by the results of the policy have acquired over 13,000 essential servicemembers, then we say that regardless of what your reason is it's actually bad for the military so let's repeal it.

MAUREEN CAVANAUGH: Joseph what are you waiting for now to take the next step in this? What are you looking forward to?

JOSEPH ROCHA: Personally or in the movement?

MAUREEN CAVANAUGH: Well I was thinking about what are you waiting for when it comes to trying to reenlist and getting back into the military. What is the signature moment that will cause you to go into a recruiting office and reenlist?

JOSEPH ROCHA: Sure, I don't need any recruiting and I don't need any convincing. If they would have repealed it a year ago it would have happened three years ago. For me now, like all servicemembers as a matter of keeping the pressure on those who are in power to make a difference and waiting for that moment where a repeal does happen. So if hypothetically the Department of Justice and the president were to choose to just understand the contradiction in defending an unconstitutional law and were to not appeal, then Justice Phillips, those things like my reenlistment would have to be smoothed out. Now if the majority leader of the Senate is able to get this bill back on the floor in December and the Senate votes for the same language that the House votes, the House amendment to the defense authorization bill actually had text that spoke to, that anyone who was honorably discharged under the policy and was still fit to serve was allowed to do so. So if I were allowed to happen, but then again that also comes with the text that says that even if the House and the Senate and the full Congress to repeal don't ask don't tell then it's up to the president and the military leadership to choose when to implement it.

MAUREEN CAVANAUGH: So I have to stop you there Joseph and I have to thank you and Ari for taking on a very complicated issue and really telling us all about it in a very short period of time. Thank you both for coming in.

JOSEPH ROCHA: Thank you very much.

ARI WALDMAN: Thank you.

MAUREEN CAVANAUGH: You have been listening to these days on KPBS. Thank you and stay with us for hour two coming up in just a few minutes on KPBS.