James Lobsenz Rewrites the Rules

How a Seattle appellate lawyer helped end 'don’t ask, don’t tell'

Published in 2011 Washington Super Lawyers — July 2011

Photo by: Rick Dahms

Asked what his immediate thoughts were when Maj. Margaret Witt, a 17-year Air Force veteran, came to his office in July 2004 and told him she was being investigated under the U.S. government’s “don’t ask, don’t tell” policy, James Lobsenz pauses. “I’m sure I had a lot of immediate thoughts,” he says finally.

Prompted on by the fact that, a year earlier, the U.S. Supreme Court in Lawrence v. Texas had recognized a constitutional right to intimate consensual sexual conduct, and thus homosexual conduct—improving the chances that policies such as “don’t ask, don’t tell” might be ruled unconstitutional given the right case—Lobsenz pauses again. There’s an assumption in the question, an imprecision, that needs correcting.

 “I think my first thoughts are always, ‘How can I help this person?’” he says finally. “You’re not really starting off thinking about how to set a precedent. You’re thinking about what’s the best thing you can do for this one person.”

“Jim’s not a prestige guy,” says attorney Anne Bremner, of Stafford Frey Cooper, who has worked opposite Lobsenz on three cases and hired the Carney Badley Spellman appellate lawyer to do a briefing in another. “It’s all about justice, the law and individual rights.”

Judge J. Robin Hunt agrees. “He has the utmost integrity,” she says. “Whatever he’s representing about the case law, the facts, he’s not going to misconstrue things.” She mentions the incivility of some lawyers, and, referring back to Lobsenz, says, “I don’t think that’s even in his nature.”

Witt simply calls him a man of great character. “He was very serious about the conversation,” she says of that first meeting with Lobsenz. “Serious about me. He was very focused on what was happening with me.

“I knew that if he took my case, he would give it his all. He had represented Perry Watkins, and I know that’s a long haul for any case with the government.”

Indeed, to understand Witt v. Department of the Air Force, it helps to go through Watkins v. United States Army.

 

When Perry Watkins was drafted in 1968, at the height of the Vietnam War, and checked the box on his registration form indicating “homosexual tendencies,” the military’s policy toward homosexuality was a little schizophrenic. Same-sex behavior could still lead to a dishonorable discharge, but claims of homosexuality were being used to dodge the draft, and thus were viewed with skepticism. Watkins stayed.

During the 1970s he re-enlisted three times, never hiding his homosexuality, and even performing as Simone, his drag-queen alter ego, in NCO (noncommissioned-officers) and enlisted-mens clubs throughout Europe. At the same time, his opportunities within the Army were limited. In ‘68 he wanted to be a chaplain’s assistant. Denied. When he was nearly raped by five soldiers, the Army investigated him, not his attackers. He successfully fought for a security clearance in the early 1970s but saw it revoked a few years later because of his sexual orientation. A sympathetic captain suggested he contact the American Civil Liberties Union. That’s how Lobsenz, three years removed from Berkeley School of Law, a deputy prosecutor with the King County Prosecuting Attorney’s Office, and a volunteer with the civil rights organization, became the ACLU’s cooperating attorney on the case at age 27.

Lobsenz sums up Watkins: “In the opening round in the District Court, I won a judgment from Judge [Barbara] Rothstein that Watkins should be reinstated. Then I lost that victory in the first appeal to a [9th U.S. Circuit] panel, which said, ‘Uh-uh. You can’t win for the reason you gave. Go back to the District Court and have the District Court address all your other arguments.’ And the District Court said, ‘Well, I wish I could make a different ruling, but I’m bound by all of these other decisions, and I can’t rule for you on any of your other arguments, so you lose. I’m sorry, Sergeant Watkins, I think the policy is ridiculous, but there’s nothing I can do about it.’ So back to the 9th Circuit for a second trip, where a three-judge panel made an enormously broad ruling: ‘The Army’s entire policy toward gays is unconstitutional; it can’t be applied to Sergeant Watkins or anybody else,’ which caused them to grant rehearing in front of an 11-judge panel of the 9th Circuit. And on the third decision out of the 9th Circuit, they said the first decision out of the 9th Circuit was incorrect, and that Judge Rothstein was right 10 years ago [in ruling the Army couldn’t deem Watkins worthy of a promotion, then change its mind about his eligibility]. ‘You were right to win on that initial reason. And you win.’

“That took 10 years.”

Four years later, in 1993, Congress passed “don’t ask, don’t tell,” a compromise between the campaign promises of President Bill Clinton for an open military and the concerns of military commanders about unit cohesion. To Lobsenz, the new law was actually a step back, since it didn’t allow for cases like Watkins’. Once you were out (of the closet), you were out (of the military). End of discussion.

That’s what happened to Witt. In 2004 she was outed and suspended. When the Air Force began discharge proceedings against her in March 2006, her legal team filed a lawsuit to enjoin the military from going forward. This was met with a countermotion from the government to get the lawsuit dismissed. At which point, Lobsenz—again serving as cooperating attorney for the ACLU—says, “We had an argument about what Lawrence v. Texas meant, which was very academic and very law school-like.”

In U.S. District Court, Judge Ronald Leighton sided with the government—Lawrence hadn’t changed anything—so the case was appealed to the 9th Circuit, which in May 2008 reversed Leighton, declaring that Lawrence created a “heightened scrutiny” for cases like Witt’s.

“When you challenge a law as unconstitutional,” Lobsenz says, “you can challenge the law on its face or you can challenge it as applied, or both. On its face, you’re saying there is no factual situation under which it would ever be constitutional to apply this law; the law is always unconstitutional. When you challenge it as applied, you’re saying, ‘For the moment, I’m not saying anything about all the other situations in the world. But this situation, your honor? That you have right here in front of you? You can’t constitutionally apply this law to this case, to this set of facts.’”

Witt’s team, which included Sarah Dunne, legal director of the ACLU of Washington, challenged the law both ways, but when the 9th Circuit sent it back, it instructed Judge Leighton to look only at the law’s constitutionality as applied to Witt. But, says Lobsenz, “We probably had the best case imaginable for a trial like that.”

For starters, there was Witt herself. “She had an unbelievably strong and stellar service record,” Lobsenz says. “She was the poster child for recruitment for the United States Air Force Nurse Corps. She was literally the poster child. They put her picture on the posters. To say: Join the Air Force. Be in the Nurse Corps. She was awarded medals by the president. She had served in Operation Enduring Freedom; she had flown medical missions in these hostile theaters; she saved people’s lives in the air.”

Then there was her unit, the 446th, considered one of the best air-evac units in the world. A key passage of the “don’t ask, don’t tell” law reads as follows: “The armed forces must maintain personnel policies that exclude persons whose presence in the armed forces would create an unacceptable risk to the armed forces’ high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability.”

After interviews with a dozen unit members, Lobsenz and Dunne made it clear that the risk to unit cohesion wasn’t Witt’s presence; it was her absence.

“We had a unit that loved her,” Lobsenz says, “wanted her back, didn’t care about her orientation, doesn’t care about anyone’s orientation, knows perfectly well there are another dozen people in the unit that are gay and lesbian, doesn’t want them out, wants to protect them. ... Discharging her made the unit mad. Somebody testified that it was like losing a member of the family.”

During closing, Lobsenz reinforced the team’s argument: first, by distinguishing between task cohesion and social cohesion, and, second, by using an analogy with which most present had firsthand experience.

“Let me be clear,” he told the court, “that I think social cohesion in my law firm is just fine. But we are a law firm, and I don’t spend my weekends constantly socializing with my partners. But my law firm is committed to a task: high-quality representation of our clients. We have something that we call a mission statement—just like the military—and it’s first on our mission statement: high-quality service to clients. If you want to be a partner in my law firm, and you can’t meet that criteria, you don’t become a partner and you don’t last. And if you can meet that, come on in, and we don’t care whether you are straight, gay, or what your religion, is or what your politics are or anything else, and we don’t necessarily all hang out on weekends.”

Witt recalls the moment. “When Jim got emotional in the closing arguments? Hoo. The last line. It was really ... he really closed it well.”

It took six years to get to those 11 days of trial, but in the end they got their verdict. Judge Leighton ruled “don’t ask, don’t tell” was unconstitutional as applied to Witt. Three months later, the entirety of “don’t ask, don’t tell” was repealed by Congress.

An obvious question: Did one lead to the other?

Dunne—who, coincidentally, first studied the Watkins case in 1997 at the University of Chicago Law School, in a constitutional law course taught by professor Barack Obama—has little doubt. “The document that [Defense] Secretary [Robert] Gates and Admiral [Mike] Mullen and the general counsel, Jeh Johnson, used in their congressional testimony to justify the repeal of ‘don’t ask, don’t tell’? It’s a road map that follows our trial.”

At the White House signing ceremony of the repeal, Witt was among the invited guests. Lobsenz notes, “A number of people told Major Witt directly that her case had an impact and helped get the votes.”

One of those votes came from Sen. Joe Lieberman.

The Witt case may have been won as applied rather than on its face, but Lieberman told Witt that the reason “don’t ask, don’t tell” was repealed was because, as she recalls it, “I put a real face on it.”

 

Lobsenz, the man who battled for 30 years for the rights of gays to serve and fight in the military, was raised a Quaker in 1950s Connecticut, went to Stanford University as an undergrad, and persuaded his parents to allow him to get a master’s in political science since he got his bachelor’s in three years and the master’s would take only one more year. “Most people went to college for four years,” he remembers telling his parents, “so couldn’t I go for four years?”

He’s got a reputation for smarts. “Brainiac,” Bremner calls him. “An encyclopedic mind,” adds Carney Badley partner Greg Miller. “Very bright,” says Judge Hunt. “Even fresh out of law school he was very bright.”

For a time Lobsenz considered a career as a history teacher. This should come as no surprise to anyone who has seen him in action. His briefs, his arguments, even his day-to-day encounters, are full of teachable moments and history lessons. Miller recalls a 2009 brief in which Lobsenz cited common law back to the 13th century. Witt recalls what should have been one of the worst days of her life—a discharge hearing at Robins Air Force Base in 2006—but she made the two-hour van trip from the Atlanta airport with Lobsenz and another attorney, and says, “It was like going on an historical civil rights journey with Jim Lobsenz. He just told story after story about civil rights in the South. It was amazing.”

In 1997, in the wake of Princess Diana’s death, Lobsenz sent a letter to the editor of The Seattle Times in which he observed: “Too little attention has been paid to the fact that the only person to have survived the accident was also the only person wearing a seat belt.” It recalls his reasons for getting interested in the law in the first place: reading Ralph Nader’s Unsafe at Any Speed at Stanford. But asked about the letter, Lobsenz suspects himself of ulterior motives. “What did you say, ’97? So my oldest daughter was 12 and my youngest daughter was 8. ... I think I was thinking, ‘The older one is going to be driving not too many years from now, and if there are things we want to say, we need to find the opportunity to say them in a way that doesn’t sound like you’re being an annoying dad.’ I think that’s what I was doing.”

Even this interview is full of history lessons. Asked about running for judge in 1992—a contest he says he doesn’t mind having lost, because his opponent, Brian Gain, turned out to be such a good judge—in three easy steps we land in 17th- and 18th-century Poland:

Plain names help elect judges.

“Lobsenz” isn’t a plain name.

What kind of name is Lobsenz anyway?

At which point he goes into the history of the small Polish town of his ancestors, currently called Łobżenica, but simplified by the Germans, when they occupied it 300 years ago, to Lobsens. As a bonus, he includes sidelights into why there are so many Warshafskys in the world (they didn’t have last names so adopted the name of their city: Warsaw), and what served as the entryway to the U.S. before Ellis Island (Castle Garden, at the foot of Battery Park, through which Lobsenz’s great-grandfather passed when he immigrated).

So his history background is obvious. In 1975 he even got a job offer to teach history at a private school in Santa Barbara, Calif. “Have you been to Santa Barbara?” he asks, then laughs at the temptation. “It’s a pretty place, it’s a pretty place.” Instead he opted for the law.

At Berkeley, Lobsenz clerked for Matthew Tobriner of the California Supreme Court, and after Berkeley he clerked for Vincent L. McKusick, chief justice of the Maine Supreme Judicial Court; then he came to Seattle because in ‘77 he’d been a summer clerk for the King County Prosecuting Attorney’s Office and loved it. He immediately got involved with the ACLU. “It was one of the smartest things I ever did,” he says. “Starting off when I’m—whatever I was—26? Going to these meetings and listening to 15 really smart lawyers strategize about what kind of cases to take and how to do ‘em, what arguments to make and where to file ‘em. I just learned more sitting in that room, listening, than probably doing anything else.”

In the mid-1980s he spent two years with the Washington Appellate Defender Association before he and a friend, John Wolfe, formed Wolfe & Lobsenz. In 1989, both attorneys joined Carney Badley.

He’s had headline-grabbing clients, including Mary Kay Letourneau and Darrell Cloud, and he’s participated in more than 50 cases that went before the state Supreme Court, split fairly evenly between arguments and amicus briefs. But when you ask him for career highlights, he cites—along with the Fisons case, which established more ethical rules for civil discovery in Washington state—two small, individual rights cases.

In the mid-1990s he represented Eve Russell, an 11-year-old girl who wanted to play on the boys soccer team, and, with Lobsenz’s help, petitioned to do so. “I thought that took some courage,” he says. “She was adorable and athletically gifted and wonderfully naive about all the nonsense swirling around her.”

More recently, he represented five college students who were forbidden entrance into a 2006 Sen. Maria Cantwell rally at a Bellevue Community College gym because they were wearing T-shirts touting her Republican opponent. “I really enjoyed all of them, kidding around with all of them,” he says of the five students. “They are so completely at the other end of the political spectrum from me. In politics we don’t agree on anything except that they should’ve been allowed to wear their T-shirts into that gym.”

One senses a theme beyond the fact that he won both cases.

“In my view,” Judge Hunt says, “you don’t move the law in another direction simply by citing existing case law. You have to have this other skill, this passion and dedication and vision. You have to have some true understanding of what types of rights the Constitution protects, what it takes to protect those rights, where is the defect in our current system if it deviates from protecting those rights, and then how to articulate all of that and put it in a compelling package to motivate courts, or the legislature, or the military, to change the rule of law.” That’s what Lobsenz does, she says.

So it’s been a helluva career. That doesn’t mean he isn’t occasionally nostalgic for the career that wasn’t. “Back at my house I have a wall with about 200 books in it, Chinese history, of which I’ve read about two-thirds,” he says. “But I haven’t looked in those books for 35 years. So I feel nostalgic when I look at them. ‘Huh, that was a lot of fun. I wonder what kind of career that way would’ve been like?’”

Litigation, he knows, is generally a zero-sum game in a way that teaching is not. “There are no losers,” says Lobsenz—also an adjunct professor at Seattle University School of Law—about teaching. “Hopefully everybody is learning and enjoying the learning.” And it’s not that the zero-sum game of litigation wears on him exactly. But, he says, “If you do care [about your clients], when you lose one, you get knocked down and it stings and you’ve got to get up again. So I don’t know if that’s wearing so much as just ... constant. You gotta keep getting up.”

 

One that still stings is the Charles Campbell case. In 1982, Campbell was convicted of the murders of three people and sentenced to death, and in the early ‘90s, Lobsenz represented him in U.S. District Court and before the 9th Circuit on whether execution by hanging was cruel and unusual punishment. “We lost in the 9th Circuit, 6-to-5,” Lobsenz says. “I tried to go to the U.S. Supreme Court and they said no. Campbell v. Wood, decision en banc 1994, cert denied 1994. I believe he was executed in May of 1995.”

He pauses. “That’s a pretty razor-thin margin: ‘6-to-5, hanging is OK’? It bothers me still.”

If there’s irony in the fact that a Quaker helped Watkins and Witt stay in the military, there’s none at all in Lobsenz’s anti-death penalty stance. Lobsenz still considers himself a Quaker, though he doesn’t go to meeting regularly; and he sees his views on the death penalty as an outgrowth of his upbringing. “I’m representing somebody on death row now,” he says. “That I will continue to do until I retire.”

He adds, “As wonderful as it is to think that ‘don’t ask, don’t tell’ is over after 30 years of working against that policy? Someday I would like to wake up in the morning and read that we don’t have a death penalty anymore. I would like to live that long.”

Photo by: Rick Dahms

Photo by: Rick Dahms

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