The Work

June 10, 2008 6:55 PM

"Don't Ask, Don't Tell" Stands Despite Effort By Major Firms

Posted by Zach Lowe

On Monday, the U.S. Court of Appeals for the First Circuit in Boston upheld a lower court's dismissal of a lawsuit challenging the military's "Don't Ask, Don't Tell" policy. The lawsuit was filed in 2006 by 12 former military personnel who claimed they were wrongfully dismissed because they are openly gay. The implication of the ruling --which increases the likelihood that the Supreme Court might hear a challenge to the policy--is covered today by blogger Bob Ambrogi.

Notably, several large law firms were involved in the case. Wilmer Culter Pickering Hale and Dorr's Stuart Delery represented the plaintiffs pro bono and four other firms--Arnold & Porter, Covington & Burling, Jenner & Block, and Sidley Austin--filed amicus briefs for the plaintiffs.

Sidley Austin's Virginia Seitz and Eamon Joyce filed a brief on behalf of about 12 retired U.S. service members. The lawyers attempted to debunk the idea that openly gay service members would disrupt "unit cohesion," citing studies that show the military itself is loath to discharge openly gay members during wartime, when a greater demand for manpower overrides other considerations.

This isn't the first time Seitz has represented military personnel. In 2003  she counseled military officials in writing the influential amicus brief in Grutter v. Bollinger, in which the  U.S. Supreme Court upheld the University of Michigan's affirmative action policy in a 5-to-4 decision. Seitz's Grutter brief argued that an end to university-level affirmative action policies would hurt the military's ability to recruit a diverse pool of officers.

Seitz says there's nothing in her background that suggests military expertise. "It's really just a coincidence," she says.

Covington &  Burling's D. Jean Veta and John Bies focused on similar points in their brief, filed on behalf of the American Sociological Association. They argued that polls indicate an easy majority of military members are comfortable serving with openly gay servicemen and women, and that countries such as Canada and England--both have lifted bans on openly gay service members--have not noticed declines in military performance.

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