Don't Ask Don't Tell Probably Headed To Supremes

Today the First Circuit affirmed the trial court's dismissal of a challenge to the "Don't Ask, Don't Tell" policy. The case is Cook v. Gates, First Cir. No. 06-2313.

The plaintiffs filed their challenge based on the 2003 Supreme Court decision, Lawrence v. Texas, holding that criminal prohibition of sodomy violates the Constitution's due process protections.

The First Circuit decision conflicts with the Ninth Circuit's decision from a couple of weeks ago. That decision is Witt v. Dep't of the Air Force, Ninth Cir. No. 06-35644. So this is probably headed to the U.S. Supreme Court, where the result will depend almost entirely on what Justice Kennedy is thinking. His opinion in the Lawrence case provides some hints. The critical portion is at pages 17 and 18. It's resounding, but it also gives him some avenues of escape if he's looking to affirm the statute. We'll see.

**Obligatory point about political courage and the power of representational democracy**: Aren't the House and Senate controlled by Democrats? What exactly is stopping them from trying, really trying, to send a bill to the President that ends this nonsense? And, if they don't have the backbone to do it, should we really get all upset if the Supreme Court doesn't either?