Lambda Conference Examines “Don’t Ask, Don’t Tell”

BY BRAD ROSEN

Alumni and students network at the Lambda conference.

On Friday and Saturday, March 2-3, HLS Lambda held its second annual Gay and Lesbian Legal Advocacy (GALLA) Conference. The conference has grown considerably since last year; both the panelists and attendees were drawn from a wide range of backgrounds and places in the country. Brian Schroeder, Co-President of HLS Lambda, remarked, “I’m very pleased. Our goal is to build this conference into an annual regional event, and this was a great step in that direction.”

Students came from BC, BU, Columbia, Georgetown, NYU, and the University of Maine to attend this year’s conference, focusing on the military policy of “Don’t Ask, Don’t Tell” (DADT). A number of firms sponsored the conference, with Skadden, Cravath, and Davis Polk as headlining sponsors. This year’s conference consisted of an opening keynote speech during lunch at the Harvard Faculty Club, a series of five panels on key issues, a networking lunch, and closed with the Leadership Award Dinner.

The conference kicked off, despite harsh rain, with an opening plenary by Joseph Steffan, who was dismissed from the United States Naval Academy for his sexuality just weeks before his graduation in 1987. Steffan is the author of the book Honor Bound, and is known for his battle against discrimination on the basis of sexual orientation in the military in the time before DADT. He jokingly referred to his lawsuit, Steffan v. Cheney, as “suing [Vice President] Cheney before it was en vogue.”

On a more serious note, Steffan spoke of how self-identification is fundamentally an indicator of existence, and so coming out should be seen not as speech but as a facet of identity itself. In denying gays the right to self-identify, the military denies them the right to exist.

The first panel focused on the social, civic, military, psychological and economic ramifications of DADT, attempting to determine whether the law, as a public policy matter, has been a success or a failure. The panel was moderated by Robert Bordone. Professor Bordone opened the panel by pointing out that although Lambda had tried multiple times, they were unable to secure a panelist to advocate that DADT has been and continues to be a good thing.

The other panelists included Lawrence J. Korb, Senior Fellow at the Center for American Progress; Denny Meyer, Public Affairs Officer of the Military Equality Alliance; and C. Dixon Osburn, Executive Director of Servicemembers Legal Defense Network (SLDN). One of the more salient stories discussed was the broad impact that DADT had on individuals in the service, including subtleties like being ineligible for bereavement leave. The panelists made numerous comparisons to the inclusion of women in the service and the rhetoric from both sides that preceded it.

The second panel on Friday examined the legacy of Lawrence v. Texas in this context. Moderated by Martha Minow, the panel discussion focused on the Lawrence opinion and its potential effects on future litigation, including the upcoming arguments in Cook v. Gates. Panelists included Tim Bakken, Professor of Law, United States Military Academy at West Point; Jennifer Gerarda Brown, Professor of Law, Quinnipiac University School of Law; Stuart F. Delery, Partner, WilmerHale; and Susan Sommer, Senior Counsel, Lambda Legal.

The initial discussion focused on attempting to define the holding and meaning of Lawrence despite the confusion proliferating in its wake. There was some discussion of the legal differences between conduct and identity in the eyes of the military, and how military regulations regarding sexual fraternization and “conduct unbecoming” affect both gay and straight service members alike.

Saturday morning’s panel, “The Contours of Judicial Deference to Military Personnel Policies,” looked at the tradition of judicial deference to Congress, and how that deference applies in the case of military affairs. Moderated by Dean Elena Kagan, the panel included Bakken and Delery, along with Diane Mazur, Professor of Law, University of Florida College of Law; and Laurence H. Tribe, Carl M. Loeb University Professor, Harvard University.

Discussion involved whether a court would overturn “Don’t Ask, Don’t Tell” considering all of the fact-finding that Congress engaged in during its codification of the policy in 1993. The professors on the panel pointed to cases where the Supreme Court had declared some laws unconstitutional, such as the Violence Against Women Act, despite a well developed record in the area, while others discussed that the history of deference to the military had weakened the Armed Services, and made them reticent to change even with compelling reasons to do so.

Saturday’s second panel told the personal stories of those affected by DADT, providing moving, first-hand evidence of how the law actually undermines unit cohesion by creating a barrier between gay and straight service members. The moderator, Sharon E. Debbage Alexander, Deputy Director for Policy, Servicemembers Legal Defense Network, explored the issue with Captain Joan E. Darrah, U.S. Navy (ret.); Brian Fricke, former Sergeant, U.S.M.C.; Elizabeth L. Hillman, Professor of Law, Rutgers School of Law, Camden; and Joe Lopez, a 1L and former Captain in the U.S. Army.

This panel was particularly emotional as panelists told their personal stories of serving under “Don’t Ask, Don’t Tell.” Several panelists described thinking first about securing personal letters in times of emergency for fear of discharge before securing their own safety. Others spoke about the effect the policy had on long-lasting relationships. Brian Fricke related that he was out to many fellow soldiers, and that while most didn’t consider it a big deal, he was often fearful that a discharge could come at any moment. “[This panel] was particularly important because it looked deeper beyond the intellectual issues surrounding ‘Don’t Ask, Don’t Tell’ to the lived experience of soldiers under the policy,” remarked Schroeder.

The final panel of the conference, “Race, Gender, and Sexuality in the Military,” examined institutionalized race, gender, and sexual orientation discrimination in the present and past of the armed services. Moderated by Katharine Silbaugh, Professor of Law, Boston University School of Law, the panelists included Professor Hillman; Captain Lory Manning, U.S. Navy (ret.), Women’s Research & Education Institute; Brenda L. Moore, Associate Professor of Sociology, State University of New York at Buffalo; and Elizabeth Salas, Associate Professor of American Ethnic Studies, University of Washington.

The conversation at this panel analogized the experience of integrating African-Americans and women into the military to how integration of openly gay service members once “Don’t Ask, Don’t Tell” is repealed. One major difference cited was that because gay Americans have always served in the military, and it is estimated 65,000 currently serve, a repeal of the ban on their open service will enable current troops to see they have always been there. However, if the policy is amended and the U.S. Armed Forces no longer discriminate based on sexual orientation, it is uncertain how many gay service members would come out of the closet immediately, for fear of harassment or negative reactions from colleagues.

The capstone event of the conference was this year’s GALLA Leadership Award. The award is given yearly to recognize great efforts in legal advocacy. Last year, Kent Greenfield was recognized for his active role in the FAIR litigation. This year, Lambda honored C. Dixon Osburn, on behalf of Servicemembers Legal Defense Network.

As co-founder and executive director of SLDN, Mr. Osburn has worked tirelessly to end discrimination and harassment of individuals covered by DADT, led SLDN to fight for the end of the ban in federal court and Congress, has obtained thirty-six changes to military policy and practice, and has provided free legal services to more than 8,000 servicemembers. After accepting
this award, Mr. Osburn spoke about the connection between citizenship and military service. He pointed to the example of black civil rights movement, which was greatly bolstered by the brave service of African American soldiers. The integration of the armed forces provided an early example of the need and opportunity of desegregation, suggesting that service to one’s country can serve to unite, rather than to divide.

By preventing lesbian and gay service members from identifying themselves to their fellow soldiers, said Osburn, “Don’t Ask, Don’t Tell” strips gay troops of their identities, silences them, and denies them the ability to advocate on their own behalf. Mr. Osburn argued this was a violation of their constitutional right to free speech, as was argued in the First Circuit Court of Appeals this past Wednesday in the case Cook v. Gates.

In addition to stimulating discussion of legal issues facing the LGBT community, the conference is also intended to provide a networking environment for the law students and practitioners interested in engaging in dialogue on topics in this area. The presence of HLS alumni, respected scholars and authorities in the field created a vibrant discussion in the “off times” during lunches and breaks. The topics of military and civic service, JAG and how other countries (such as Israel and England) have modeled their armed forces wings came up repeatedly, alongside more practical issues about dating off-base and how to handle service member claims effectively. Lambda hopes to repeat these successes next year.

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