Opposition Brief — Pietrangelo v. Gates (No. 08-824)

\

WW @ ) No. 08-824

IN THE

JAMES E. PIETRANGELO, II,

Plaintiff-Petitioner,

Vv.

ROBERT M. GATES, SECRETARY OF DEFENSE;

MICHAEL CHERTOFF, SECRETARY OF

HOMELAND SECURITY; UNITED STATES,

Defendants-Respondents,

and

THOMAS COOK; MEGAN DRESCH; LAURA GALABURDA;

JACK GLOVER; DAVID HALL; MONICA HILL;

JENNY LYNN KOPFSTEIN; JENNIFER MCGINN;

JUSTIN PEACOCK; DEREK SPARKS; STACY VASQUEZ,

Plaintiffs-Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

BRIEF FOR THE COOK RESPONDENTS

AARON D. TAX

EMILY HECHT

SERVICEMEMBERS LEGAL

DEFENSE NETWORK

P.O. Box 65301

Washington, DC 20035

JULIAN DAVIS MORTENSON

FORDHAM LAW SCHOOL

140 West 62nd Street

New York, NY 10023

DANIEL C. RICHENTHAL

WILMER CUTLER PICKERING

HALE AND DORR LLP

399 Park Avenue

New York, NY 10022

PAUL R.Q. WOLFSON

Counsel of Record

CAREY BOLLINGER

WILMER CUTLER PICKERING

HALE AND DORR LLP

1875 Pennsylvania Ave., NW

Washington, DC 20006

(202) 663-6000

CRAIG E. ESTES

WILMER CUTLER PICKERING

HALE AND DORR LLP

60 State Street

Boston, MA 02109

QUESTION PRESENTED

Whether the court of appeals erred in sustaining

dismissal of a constitutional challenge to the statutory

prohibition on military service by gay persons without

allowing any opportunity for development of a factual

record.

TABLE OF CONTENTS

Page

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(111)

1V

TABLE OF AUTHORITIES

CASES

Page(s)

Able v. United States, 88 F.3d 1280 (2d Cir.

BN saints rene enen'cn scdeees ash nenicncaineanas nicki eadaoabiguiauies 10

Bowers v. Hardwick, 478 U.S. 186 (1986) ...................228. 6

Lawrence v. Texas, 539 U.S. 558 (2008) .............cccsssscsssess 6

Rostker v. Goldberg, 453 U.S. 57 (1981) ...........eeeeeeeeeeeeenes 9

Maryland v. Baltimore Radio Show, 338 U.S.

ER ee raed Nagel te as Sh I Ran TON Se OO 14

Witt v. Department of Air Force, 527 F.3d 806

SD caste denies beach hacomtanbciassedscmncanes 2,10, 11

STATUTES AND RULES

en cae keen caehi 13,4, 5

SER T lt GR eee ace ea aC ae eee ae ee a ee l

National Defense Authorization Act for Fiscal]

Year 1994, Pub. L. No. 103-160, § 571, 107

RR eG. | ee Re ee

Sg ep ec asics caschae ancl lag de Marae edits uiiieaiceapennonenele l

LEGISLATIVE MATERIALS

Military Readiness Enhancement Act, H.R.

Be I, I oneicctsedaseecttetevecpenesicsecntinnsessnens 13

Policy Implications of Lifting the Ban on Ho-

mosexuals in the Military: Hearings Be-

fore the House Committee on Armed Ser-

_

Me LA Se S| | ne een eRe ea 5

Vv

TABLE OF AUTHORITIES—Continued

Page(s)

OTHER AUTHORITIES

Barr, Bob, Don’t Ask, Who Cares, Wall St. J.,

A enthcioueirinatnaiiennioncsiininandemisas 13

Department of Defense Instruction 1332.14,

“Enlisted Administrative Separations,”

Encls. 3(8)(a)(1), 5(8)(c) (Aug. 28, 2008) ......... 3,9

Galloway, Jim, Ex-Senator Urges Review of

Gays-In-Military Policy, Atlanta J. &

I RIE i SE WE, COUN ecco reiiececsewseeneneconivcncsionses 13

Interview with Colin Powell, CNN, Dec. 14,

RE IN BOB cciisnicecnesensesccervsonssunnavevnaacsannss 13

Memorandum from Judith Miller, General

Counsel, DoD, to General Counsels of the

Military Departments et al. (Aug. 18, 1995).....000..... 4

Retired Top Military Officers Call For Repeal

of ‘Don't Ask, Don’t Tell’ Policy, Jurist,

Nov. 18, 2008, available at http://jurist.

law.pitt.edu/paperchase/2008/1 1/retired-top-

military-officers-call-for.php.................----:eeceeeeeseeees 12

Shalikashvili, John M., Second Thoughts on

Gays in the Military, N.Y. Times, Jan. 2,

2007, at Al7....... aici camaisineiesaiaphantamepeianiniangaee 12

Stannard, Matthew B., Obama will end ‘don't

ask’ rule, spokesman says, S.F. Chron.,

I cuentacumaueussionns 12, 13, 14

White House Agenda on Civil Rights, avazlable

at http://www.whitehouse.gov/agenda/civil

rights/ (last visited Jan. 23, 2009).....00...... eee 13

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. Al-

A68) is reported at 528 F.3d 42. The opinion of the dis-

trict court (Pet. App. A69-A121) is reported at 429 F.

Supp. 2d 385.

JURISDICTION

The judgment of the court of appeals was entered

on June 9, 2008. Petitions for rehearing were denied on

August 8, 2008. On October 21 and 22, 2008, Justice

Souter extended the time for filing petitions for a writ

of certiorari in this case to and ineluding January 5,

2009. The petition was filed on December 23, 2008.

This Court’s jurisdiction is invoked under 28 U.S.C.

§ 1254(1).

INTRODUCTION

Respondents Thomas Cook, Megan Dresch, Laura

Galaburda, Jack Glover, David Hall, Monica Hill, Jenny

Lynn Kopfstein, Jennifer McGinn, Justin Peacock,

Derek Sparks, and Stacy Vasquez (the Cook respon-

dents) are gay, lesbian, or bisexual Americans who, like

petitioner Pietrangelo, served honorably in the Armed

Forces, in the Middle East and elsewhere.’ Like peti-

tioner and thousands of others, all were discharged

from the military under the so-called “Don’t Ask, Don’t

Tell” (DADT) statute, 10 U.S.C. § 654.

' The petition alludes to the Cook respondents only in pass-

ing. Pet. 1 n.1. As described here and below, however, they were

“parties to the proceeding in the court whose judgment is sought

to be reviewed.” S. Ct. i. 12.6. They are accordingly also “parties

entitled to file documents in this Court.” /d.

2

Petitioner and the eleven Cook respondents origi-

nally filed a single complaint challenging the constitu-

tionality of DADT, on its face and as applied to them.

The district court dismissed the complaint for failure to

state a clairn, without allowing any opportunity for dis-

covery or the comp .ation of a factual record. Peti-

tioner seeks review of the First Circuit’s decision af-

firming that decision.

The Cook respondents agree that the court of ap-

peals erred; that DADT is not only bad policy but vio-

lates, on its face and as applied, the constitutional

rights of gay, lesbian, and bisexual Americans; and that

the issues at the heart of this case may at some point

require resolution by this Court. If the Court grants

review in this case, the Cook respondents will support

reversal of the judgment below. Unlike petitioner,

however, the Cook respondents believe the Court

would be better advised to defer review at this time.

As the Cook respondents have repeatedly argued,

proper consideration of the constitutionality of DADT,

particularly as applied to specific individuals, requires

the development of an appropriate factual record. A

recent decision by the Ninth Circuit, remanding an in-

dividual DADT challenge for further proceedings, pro-

vides a ready vehicle for the development of such a re-

cord. See Witt v. Department of Air Force, 527 F.3d

806, 821 (9th Cir. 2008). Moreover, changes in public

and military opinion on the policy judgment reflected in

the DADT statute, substantial support for a bill to re-

peal the statute introduced in the last Congress, and

the results of the recent national elections raise the

possibility of legislative action that may eliminate any

need for this Court to address the constitutionality of

the present statute. Under these circumstances, the

3

Cook respondents believe that review of the present

case would be premature.

STATEMENT

1. The DADT statute, enacted in 1993, codifies an

effective ban on military service by gay persons. 10

U.S.C. § 654; National Defense Authorization Act for

Fiscal Year 1994, Pub. L. No. 108-160, § 571, 107 Stat.

1670 (1993).2 Under the statute and its extensive im-

plementing regulations, a service member “shall be

separated” from the Armed Forces if he or she has (i)

“engaged in, attempted to engage in, or solicited an-

other to engage in a homosexual act or acts”; (ii) “stated

that he or she is a homosexual or bisexual, or words to

that effect”; or (iii) “married or attempted to marry a

person known to be of the same biological sex.” 10

U.S.C. § 654(b)(1)-(8).

The first two grounds for separation are theoreti-

cally subject to exceptions, but only if the service

member demonstrates that, despite a particular act or

statement, he or she actually “is not a person who en-

gages in, attempts to engage in, has a propensity to en-

gage in, or intends to engage in homosexual acts.”

§ 654(b)(2); see § 654(b)(1)(E); see also, e.g., Department

of Defense Instruction 1332.14, “Enlisted Administra-

tive Separations,” Enclosure 3(8)(a)(1) (Aug. 28, 2008)

(“Homosexual conduct includes homosexual acts, a

statement by a Service member that demonstrates a

propensity or intent to engage in homosexual acts, or a

‘

This brief sometimes uses the term “gay” as shorthand for

gay, lesbian, or bisexual.

4

homosexual marriage or attempted marriage.”).’ In

practice, it is impossible for a gay service member to

make that showing.’ The recurrent “propensity or in-

tent” language reflects the statute’s stated premise

that “[t]he presence in the armed forces of persons who

demonstrate a propensity or intent to engage in homo-

sexual acts would create an unacceptable risk to the

high standards of morale, good order and discipline, and

unit cohesion that are the essence of military capabil-

ity.” § 654(a)(15).°

’ “{H]omosexual act” is defined to include not only “(A) any

bodily contact, actively undertaken or passively permitted, be-

tween members of the same sex for the purpose of satisfying sex-

ual desires,” but even “(B) any bodily contact which a reasonable

person would understand to demonstrate a propensity or intent to

engage in an act described in subparagraph (A).” § 654(f)(3).

*In the early years of DADT, one Navy Reserve Lieutenant

convineed a separation board that mere acknowledgement of her

sexual orientation did not justify an inference that she had a pro-

pensity or intent to engage in homosexual acts. The Defense De-

partment promptly issued additional guidance, forcefully clarifying

that, for example, “[a] member may not avoid the burden of rebut-

ting the presumption [that a person who acknowledges he or she is

gay also “engages in, attempts to engage in, has a propensity to

engage in, or intends to engage in homosexual acts,” thus requir-

ing separation] merely by, asserting that his or her statement of

homosexuality was intended to convey only a message about sex-

ual orientation, ... and not to convey any message about propen-

sity or intent to engage in homosexual acts."”. Memorandum from

Judith Miller, General Counsel, DoD, to General Counsels of the

Military Departments et al., at 2 (Aug. 18, 1995). Since then, no

service member who has made a “statement” covered by DADT

has succeeded in rebutting the presumption that he or she has at

least the “intent” or “propensity” to engage in prohibited acts.

‘ a ;

Many supporters of DADT were less careful with their lan-

guage. They argued, for example, that permitting military service

»

Despite its popular name, the DADT statute con-

tains no “Don’t Ask” guarantee.” The “Don’t Tell” pro-

hibition, in contrast, is robust, covering any honest ad-

mission by a gay service member regarding his or her

sexual orientation to anyone, in any context. See

§ 654(b)(2). (Discussions with medical providers, chap-

lains, or family members, for example, are not privi-

leged in this respect.) Basic personal conversations of

the sort well-meaning friends and colleagues engage in

every day require gay service members, unlike their

straight counterparts, to speak creatively, disingenu-

ously, or not at all in order to avoid making any state-

ment that might be construed as “demonstratling] ... a

propensity to engage in, or inten|t] to engage in homo-

sexual acts” (§ 654(b)(2)). The law requires not just dis-

cretion, but both complete abstinence and absolute si-

lence, or even dishonesty, with respect to a fundamen-

tal aspect of gay service members’ personal human

identity.

by gay persons would legitimize “a homosexual lifestyle when the

homosexual act Is an unnatural act and one that is prohibited by

law,’ and that gay service members could not be trusted and were

“deviant” and “indecent.” Policy Implications of Lifting the Ban

on Homosexuals in the Mil tary Hearings Before the H. Comn

on Armed Services, 103d Cong. 3 (1993) (statement of Rep Floyd

Spence); 7d. at 89-90, 92 (statement of Col. John Ripley)

* While the regulations purport to provide some restrictions

on the initiation of investigations, their protection is weak at best

Critically, the regulations impose no limit on the use of information

obtained from improper investigations. See, e.g., DoD Instr

1442.14, kenel. 5(3)(c) (Aug. 28, 2008) (“Nothing in this provision ...

provide[s] the Service member with any basis for challenging the

validity of any proceeding or the use of any evidence, including a

statement by the Service member, in any proceeding.”)

6

2. a. Petitioner and the eleven Cook respondents

were all forced to leave the military, against their will

and despite exemplary records, because of DADT. In

2004 they jointly filed the complaint in this case, raising

due process, free speech, and equal protection chal-

lenges to the constitutionality of the statute, both on its

face and as applied. They acknowledged that courts

had previously sustained the statute, largely on the

strength of this Court’s decision in Bowers v. Hard-

wick, 478 U.S. 186 (1986), which had upheld a statute

that criminalized even private consensual homosexual

conduct. They argued, however, that at least two later

developments justified revisiting the question.

First, in 2008 this Court decided Lawrence v.

Texas, 539 U.S. 558 (2003), which overruled Bowers and

recognized that the constitutional right to privacy en-

compasses a liberty interest in private adult consensual

intimacy and relationships. All of the courts that had

upheld DADT before Lawrence relied upon Bowers or

circuit precedent based on bowers.

Second, even more evidence, including the wartime

experience of the Armed Forces themselves, had de-

veloped to show that the factual premise of DADT is

simply false. For example, the complaint 2!’.ed that

service members known to be gay, lesbian, or bisexual

had served with distinction in Kosovo, Afghanistan,

lraq, and elsewhere, with no basis for claiming that

their presence harmed morale, good order and disci-

pline, or unit cohesion. Compl. {j 46.

b. The district court dismissed the complaint for

failure to state a claim. Pet. App. A69-A121. It con-

cluded that Lawrence did not alter the “rational basis”

standard of review for due process or equal protection

challenges to DADT (Pet. App. A89-A90, A92-A%8),

ad

(

and that the statute satisfied that standard as a matter

of law (id. at A93-A114, A120). It further held that

DADT did not violate gay service members’ First

Amendment rights because it involved only an “eviden-

tiary use of statements by a person to prove that per-

son’s intent.” /d. at All16. The court dismissed the

complaint without giving petitioner or the Cook re-

spondents any opportunity to conduct discovery or oth-

erwise establish a factual record to support their con-

stitutional claims, in part because it did not understand

them to be advancing genuine as-applied claims. See 7d.

at A79.

c. The court of appeals affirmed. Pet. App. Al-

A68.’ Unlike the district court, it concluded that Law-

rence required the application of a form of heightened

scrutiny. /d. at A27-A28. Defining the protected inter-

est recognized by Lawrence as one “for adults to en-

gage in consensual sexual intimacy in the home” (7d. at

A26), it held that a court must “focus[] on the individ-

ual’s liberty interest” (7d.) and then “halance|]| the

strength of the state’s asserted interest ... against the

degree of intrusion into” that protected individual in-

terest (2d. at A28). The court of appeals also under-

stood that the complaint here included “classic /as-

applied challenges.” Jd. at A380 n.8. Nonetheless, it

agreed that the complaint should be dismissed without

In the district court, all plaintiffs were initially represented

by the same counsel. After the district court dismissed the case,

petitioner Pietrangelo opted to represent himself and filed a sepa-

rate notice of appeal. The court of appeals consolidated peti-

tioner’s appeal and that of the Cook respondents for purposes of

briefing and argument, and treated the two together in its deci-

sion.

8

any opportunity for factual development. F.g., id. at

A37.

Focusing on the military context of DADT (Pet.

App. A30-A33) and the circumstances of its enactment

(id. at A33-A36), the court concluded that it was re-

quired to take “at face vaiue” (id. at A36) Congress’s

articulated interest in avoiding a purported threat to

““high morale, good order and discipline, and unit cohe-

sion” (id.). The court then upheld dismissal of the

plaintiffs’ due process challenge—without any inquiry

into the factual validity of the asserted governmental

interest, without any assessment or balancing of the

countervailing intrusion into the individual liberty in-

terests protected by Lawrence, and without any tailor-

ing analysis. It merely announced, without further dis-

cussion, that “where Congress has articulated a sub-

stantial government interest for a law, and where the

challenges in question implicate that interest, judicial

intrusion is simply not warranted.” Jd. at A37.

The court also upheld dismissal of the plaintiffs’

equal protection and free speech claims. It held that

the equal protection claims were subject only to ra-

tional-basis review (Pet. App. A38-A41), and that the

statute’s burdens on speech did not violate the First

Amendment because their purpose was “not to restrict

. speech” but “to identify those who have engaged or

are likely to engage in a homosexual act” (7d. at A42;

see id. at A41-A49). Judge Saris would have reversed

dismissal 2s to the free speech claim. /d. at A49-A68.

ARGUMENT

1. The Cook respondents agree with petitioner

that the court of appeals erred in sustaining dismissal

of the complaint in this case. Even “in the area of mili-

tary affairs ... Congress remains subject to the limita-

«

9

tions of the Due Process Clause.” Rostker v. Goldberg,

453 U.S. 57, 67 (1981). The present DADT statute and

regulations are unconstitutional for all the reasons ad-

vanced in the original complaint, and the plaintiffs here

should have been given the chance to make their case.

The DADT statute burdens gay service members’

fundamental liberty interests in maintaining intimate

personal relationships consistent with their innate

identity, including (but certainly not limited to) engag-

ing in private adult consensual intimate conduct. It de-

nies gay service members treatment equal to that re-

ceived by their heterosexual colleagues. It suppresses

or penalizes expression by gay service members re-

garding some of the most commonplace and yet cen-

trally important aspects of their personal identities.

And these burdens are not remotely justified by any

actual relationship to any compelling, important, or

even legitimate governmental interest.

The statute is as unconstitutional as it is baseless

and unjust. The court of appeals erred in sustaining it,

and especially in doing so without aliowing the plain-

tiffs any opportunity to build a concrete factual record

to support their constitutional claims. The issues raised

by the case are important, and ultimately some or all of

them may well require resolution by this Court. If the

Court grants review in this case, the Cook respondents

will vigorously support reversal of the judgment below.

2. Nonetheless, for several reasons the Cook re-

spondents have not sought review in this case.

a. First, while there is much to eriticize in the opin-

ions below, one central error was the courts’ refusal to

afford the plaintiffs any opportunity to build a factual

10

record.” Because of that error, in reviewing this case

the Court would be asked to consider the important

constitutional questions that petitioner seeks to pre-

sent without the benefit of the very record that the

Cook respondents have maintained is necessary to

proper adjudication of their challenge to the DADT

statute.

b. Second, while there is some uncertainty in the

lower courts over how to interpret this Court’s decision

in Lawrence (see Pet. 24-26), that by itself is not a basis

for review in this case. In particular, most cases do not

involve the military context, in which the government

argues it is entitled to exceptional deference. In the

specific context of the DADT statute, there is no con-

flict warranting immediate review.

In the DADT context, as petitioner points out (Pet.

26), the Ninth Circuit also recently held that a form of

heightened scrutiny applies after Lawrence. Witt v.

Department of Air Force, 527 F.3d 806, 817-819 (9th

Cir.), reh’g denied, 548 F.3d 1264 (2008). The Witt court

articulated a constitutional test somewhat more specifi-

cally than the First Circuit in this case. Compare Pet.

App. A28 (“balance[] the strength of the state’s as-

serted interest ... against the degree of intrusion into

the petitioners’ private sexual life”) with 527 F.3d at

819 (“the government must advance an important gov-

’ Even before Lawrence, courts considering challenges to the

DADT statute allowed plaintiffs tu develop at least some factual

record. See, e.g., Able v. United States, 88 F.3d 1280, 1288, 1291-

1292 (2d Cir. 1996) (noting that district court held four-day trial on

one issue and rernanding for further trial of improperly dismissed

claim). It is tronie that this case, coming after Lawrence, is the

first to have been finally resolved on a motion to dismiss.

11

ernmental interest, the intrusion must significantly fur-

ther that interest, and the intrusion must be necessary

to further that interest”). While acknowledging the

importance of the military context, in practice it gave

that context less sweeping and automatic deference

than the First Circuit accorded it in this case. Compare

Pet. App. A386, A37 n.10 with 527 F.3d at 821. Most im-

portant, it made clear that analysis of the constitutional

challenge should be “as-applied rather than facial” (527

F.3d at 819), and remanded the case for development of

a factual record (7d. at 821).

The Ninth Circuit has not held the DADT statute

unconstitutional, even as applied to Major Witt. While

the Cook respondents expect that exploration of the

facts on remand will lead to that conclusion, there is no

reason for this Court to grant review in the present

ease on the basis of any such assumption. The more

usual course would be to await the outcome of the fur-

ther proceedings that have been ordered in Witt.’ If

the losing party ultimately seeks review of a future ap-

pellate decision invalidating or sustaining application of

the statute to Major Witt, the Court will have ample

opportunity to consider granting review in a case that

should present the relevant issues in light of a fully-

developed record.

c. Finally, it would be appropriate for the Court to

postpone review at this time given the present expec-

tation that Congress and the President will be initiat-

ing their own reexamination of the DADT statute.

” Another case, Log Cabin Republicans v. United States, No.

CV 04-8425, is pending in the Central District of California. That

htigation is presently stayed in light of Witt. See Dkt. No. 73, Joint

Status Report (Jan. 21, 2009).

12

In the fifteen years since Congress enacted the

statute, evidence that it is baseless and unjust has con-

tinued to accumulate, and the policy debate has contin-

ued to evolve. In that time, for example, service mem-

bers known by their units to be gay have served our

country with distinction in Kosovo, Afghanistan, Iraq,

and elsewhere, without prejudice to good order, unit

cohesion, or morale. Retired senior officers and

straight service members are increasingly supporting

an end to the DADT ban, precisely because they have

concluded that morale and unit cohesion do not suffer

from the presence of service members who are known

to be gay.'° General public opinion has shifted dramati-

cally against the ban since 1993.'' Calls for reevalu-

'° See, e.g., Retired Top Military Officers Call For Repeal of

‘Don't Ask, Don’t Tell’ Policy, Jurist, Nov. 18, 2008 (statement

signed by over 100 retired U.S. generals and admirals concluding

that “repealing the ‘don’t ask, don’t tell’ policy would not harm and

would indeed help our armed forces. As is the case with Great

Britain, Israel, and other nations that allow gays and lesbians to

serve openly, our service members are professionals who are able

to work together effectively despite differences in race, gender,

religion, and sexuality. Such collaboration reflects the strength

and the best traditions of our democracy.”), available at http://

jurist .law.pitt.edu/paperchase/2008/1 l/retired-top-military-officers

-call-for.php; John M. Shalikashvili, Second Thoughts on Gays in

the Military, N.Y. Times, Jan. 2, 2007, at A17 (former Chairman of

Joint Chiefs has concluded that gay service members “would not

undermine the efficacy of the armed ferces”); Matthew B. Stan-

nard, Obama will end ‘don’t ask’ rule, spokesman says, S.F.

Chron., Jan. 14, 2009, at Al (reporting results of military polls and

quoting Iraq veteran and American Legion officer: “Who ... ea-

res? Seriously.”).

! See, e.g., Stannard (“An ABC poll in July [2008] found that

three-quarters of Americans supported allowing gays and lesbians

to serve openly in the military compared to 44 percent of Ameri-

cans who expressed the sarne support in 19923{.]’’).

13

ation or repeal have come from some leaders who origi-

naliy supported enactment of the DADT statute, and

from others not known for their support of gay

causes.'* A House bill to repeal the DADT statute gar-

nered 149 co-sponsors in the last Congress.'* Most re-

cently, a new President has expressly supported repeal

of DADT and said that he will work with Congress and

military leaders to achieve that goal."

? Bob Barr, Don’t Ask, Who Cares, Wall St. J., June 13, 2007,

at Al8 (“As a conservative Republican member of Congress from

1995 to 2003, I was hardly a card-carrying member of the gay-

rights lobby. I opposed then, and continue to oppose, same-sex

marriage, or the designation of gays as a constitutionally protected

minority class. Service in the armed forces is another matter. The

bottom line here is that, with nearly a decade and a half of the hy-

brid ‘don’t ask, don’t tell’ policy to guide us, I have become deeply

impressed with the growing weight of credible military opinion

which concludes that allowing gays to serve openly in the military

does not pose insurmountable problems for the good order and

discipline of the services.”); Interview with Colin Powell, CNN,

Dec. 14, 2008, Tr. 121401CN.V18 (“But it’s been 15 years, and atti-

tudes have changed. And so, I think it is time for the Congress,

since it is their law, to have a full review of it.”); Jim Galloway, Ex-

Senator Urges Review of Gays-In-Military Policy, Atlanta J. &

Const., June 4, 2008, at 3A (reporting statement by former Senator

Sam Nunn that “ ‘I think [when] 15 years go by on any personnel

policy, it’s appropriate to take another look at it--see how it’s

working, ask the hard questions, hear from the military.’ ”).

i Military Readiness Enhancement Act of 2007, H.R. 1246,

110th Cong. (2007).

'* See White House Agenda on Civil Rights, avazlable at

http://www.whitehouse.gov/agenda/civil_rights/ (last visited Jan.

23, 2009) (“President Obama agrees with former Chairman of the

Joint Chiefs of Staff John Shalikashvilt and other military experts

that we need to repeal the ‘don’t ask, don’t tell’ policy. The key

test for military service should be patriotism, a sense of duty, and

a willingness to serve. Discrimination should be prohibited.

14

These special circumstances suggest a likelihood

that Congress and the President will be initiating their

own reexaminations of the DADT statute in the rela-

tively near future, and raise the possibility of legisla-

tive action that might eliminate any need for this Court

to address the constitutionality of the present statute.

In light of that possibility, and in the absence of any

compelling need for prompt action, the Cook respon-

dents suggest that immediate review of the sensitive

substantive and procedural issues raised by this case

would be premature. Cf. Maryland v. Baltimore Radio

Show, Inc., 338 U.S. 912, 918 (1950) (Frankfurter, J.,

respecting denial of certiorari) (“Wise adjudication has

its own time for ripening.”).

CONCLUSION

Although the decision of the court of appeals is er-

roneous, the Cook respondents do not seek this Court’s

review in this case. If review is granted, the Cook re-

spondents will support reversal of the judgment below.

The President will work with military leaders to repeal the cur-

rent policy and ensure it helps accomplish our national defense

goals.”); see aiso Stannard (“Obama spokesman Robert Gibbs, re-

sponding ... to a Michigan resident who asked if the new admini-

stration planned to get rid of the policy, said: ‘You don’t hear poll-

ticilans give a one-word answer much. But it’s “Yes.” "”).

AARON D. TAX

EMILY HECHT

SERVICEMEMBERS LEGAL

DEFENSE NETWORK

P.O. Box 65301

Washington, DC 20035

JULIAN DAVIS MORTENSON

140 West 62nd Street

New York, NY 10023

DANIEL C. RICHENTHAL

WILMER CUTLER PICKERING

HALE AND DORR LLP

399 Park Avenue

New York, NY 10022

JANUARY 2009

5

Respectfully submitted.

PAUL R.Q. WOLFSON

Counsel of Record

CAREY BOLLINGER

WILMER CUTLER PICKERING

HALE AND DORR LLP

1875 Pennsylvania Ave., NW

Washington, DC 20006

(202) 663-6000

CRAIG E. ESTES

WILMER CUTLER PICKERING

HALE AND DORR LLP

60 State Street

Boston, MA 02109