Created equal

-By Lori Craig

It was a military policy that altered the lives of 14,000 of the nation’s service personnel over 17 years. President Barack Obama vowed, even before taking office, to wipe it from the books because “we are a nation that believes all men and women are created equal.”

For Dan Woods ’77, the historic courtroom fight against “don’t ask, don’t tell” was about resolving inconsistencies: disparity in government leaders’ statements and the laws their departments enforced; contradiction between the declared need for strong national security and the military’s dismissal of qualified soldiers; and the conflict between the Constitutional rights of free speech and due process and government-sanctioned bias against a group of Americans.

“This case has, obviously, a much greater emotional appeal than much of the business litigation that I handle,” says Woods, an accomplished trial lawyer. “This case had a much greater impact on our country than the cases that may involve huge sums of money.

Rachel Fledman '06, Dan Woods '77 and Devon Myers '06

“We made history in this case and we’re very proud of that.”

Woods successfully represented the Log Cabin Republicans in the landmark Los Angeles federal court challenge to “don’t ask, don’t tell.” The White & Case partner led a pro bono team of attorneys who were interested in the case, including three USC Law alumni: Rachel Feldman ’06 and Devon Myers ’05, who, for the first time, examined witnesses at a federal trial; and Patrick Hagan ’09, who was a first-year associate when he worked on the case.

Last fall’s trial, held in Riverside, Calif., followed six years of wrangling with the Justice Department, which continues to defend the Clinton-era policy as necessary to promote unit cohesion despite statements from President Obama and Joint Chiefs of Staff Chairman Navy Adm. Mike Mullen that it weakens national security.

"It was a fantastic trial from my perspective,” Woods says. “Trials are always a struggle to get your witnesses there, put them on the stand in the right order, have them say what you hoped they would say and have them deal with cross-examination. And in any trial you have fights about admissibility of evidence and other legal issues, and all of those things worked out really well.”

Building the case
Woods took the case in 2004 at the request of a colleague and Log Cabin Republicans board member, who thought the policy should be challenged based on the Supreme Court’s 2003 ruling in Lawrence v. Texas that sexual privacy is a constitutional right under the 14th Amendment. Woods, then head of his firm’s pro bono program, knew he had the trial experience the case needed and thought the fresh approach could work.

“The government’s argument was that it just needed a rational basis for ‘don’t ask, don’t tell’ to survive our constitutional challenge, and we argued all along that there had to be a higher level of scrutiny applied to it because it does discriminate and punish homosexuals for who they are,” Woods says.

Woods put out the call to senior and junior attorneys at White & Case and assembled a team of lawyers with a range of expertise, including skilled litigators and two bankruptcy associates, who would dedicate thousands of hours to the case during the next six years.

A “gripping” trial
“We put on a lot of evidence, all of which was designed to show that ‘don’t ask, don’t tell’ basically doesn’t work and, in fact, undermines unit cohesion and troop morale,” Woods says.

Testimony came from experts who discussed the history of the integration of women and blacks into the military; the ease with which other countries — including the United Kingdom, Canada and Israel — allow open service by gays and lesbians; and the disproportionate effect of “don’t ask, don’t tell” on women, who account for 14 percent of military personnel but 38 percent of discharges under the law.

“The original idea [of the law], in part, was to protect people in combat situations, but that has nothing to do with discharging doctors, dentists, nurses, lawyers, computer operators or translators — all these people who also were discharged,” Woods says. “And the statistics showed there were more people discharged in times of peace than in times of war. That doesn’t make sense, given their reasoning for these policies.”

There was moving testimony from gay and lesbian Americans, like Mike Almy, whose military service was cut short by the policy. Almy was a former Air Force major with 13 years of service who led a team maintaining the systems controlling the airspace over Iraq. One of Almy’s colleagues decided to snoop through some of the hundreds of emails in a folder marked “personal” and found messages dealing with Almy’s relationships with other men. Armed with that evidence of his sexual orientation, supervisors discharged Almy, who later testified that he went home, took off his uniform, crawled into a fetal position on the bathroom floor and “cried like a baby.”

“Every single member of his unit wrote a letter in support of him that said, ‘We cannot afford to lose him,’” Woods says. “His commanding officer, while the discharge proceedings were pending, recommended [Almy] to be promoted from major to lieutenant colonel.

“Of course, once he was gone, his unit’s performance suffered, so his loss absolutely weakened the military,” Woods says.

There also was testimony from straight former service members, like Stephen Vossler, who saw the law negatively affect their jobs and units.

Vossler, who was defended at deposition by Feldman and prepped for trial and examined by Myers, testified that he had two gay roommates while serving in the Army. Vossler considers one of those men his best friend. After Vossler’s own stint in the Army concluded, he began speaking out against “don’t ask, don’t tell.”

“For me, a gripping moment of that testimony was when I asked him why he spent so much time and effort to speak out about this policy,” Myers says. “He stopped talking. There was a long pause and I realized he was starting to choke up. And then I choked up.

“And his answer was: I did it because this is not my country. My country would not allow this type of discrimination to go forward against people who want to serve and are willing to give their lives for their country.”

The government, represented by Department of Justice Trial Attorney Paul Freeborne and a group of seasoned litigators from the D.O.J., presented no exhibits aside from the law’s legislative history and presented no witnesses. But the D.O.J. didn’t lie down, either.

“They fought everything,” Woods says. “They made it as difficult for us as they possibly could. And I wish they had put on witnesses because it would have been even more fun at the trial to cross-examine any witness who might have said that ‘don’t ask, don’t tell’ worked or was necessary or useful for the military.”

Woods presented evidence that the discharges left the military short of people in critical operations. In his closing statement, he reiterated that to fill those holes, the government lowered admission standards to accept felons into service, even some convicted of violent crimes.

“I got to say in my closing argument that the government would rather give a convicted felon a gun than give a gay guy a typewriter,” Woods says.

The fight continues
At the conclusion of arguments, U.S. District Judge Virginia A. Phillips did not indicate how she intended to rule, but Woods says he was cautiously optimistic.

"I thought we had won, I thought we deserved to win, and I had some faith that the system would work and that we would win,” Woods says.

Not only did Judge Phillips rule in their favor, she wrote an 86-page opinion declaring the law an unconstitutional violation of First and Fifth Amendment rights. Woods says the opinion was thorough, well-researched and well-written, and that the ruling will help the Log Cabin Republicans fight the government’s appeal before the Ninth Circuit Court of Appeals.

In the meantime, President Obama signed legislation repealing “don’t ask, don’t tell,” likely prompted in large part by the victory in this case. However, the repeal won’t go into effect until 60 days after the joint chiefs, the defense secretary, and the president certify that the military is ready to implement the change.

“The work on this case continues,” Woods says. He filed his opposition brief with the Ninth Circuit in March and the government filed its reply in late April. Once the briefing is complete, Woods will ask the Ninth Circuit to expedite the oral argument.

Over the years of legal wrangling, what started as a fight for his client became a passion for Woods.

“It is unfair and un-American to judge people on something other than their performance,” he says. “The people who want to enlist voluntarily in our military and who want to conform to military standards and values ought to be able to do that whether they’re gay or straight.”

Woods claims he is “not an activist,” before admitting that, by definition, he now might be.

“I’ve repeatedly gone back to the old quote from Sen. Barry Goldwater: ‘I don’t care if you’re gay or straight, as long as you can shoot straight,’” Woods says. “And that’s the way I’ve always felt.” Following Judge Phillips’ ruling, Woods found himself in the spotlight.

“I can’t say that I knew it would be this big, but I thought it had the potential to be a historic case,” he says. “After we survived motions to dismiss or motions for summary judgment, I thought this was going to be the case that would change the law. I would have team meetings and say, ‘We’re going to make history.’ It’s not every day you can walk in to a team meeting and say that.”

-As seen in the Summer 2011 USC Law Deliberations