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‘Don’t Ask, Don’t Tell’ Struck Down by U.S. District Court

A national gay-and-lesbian Republican grassroots political group, the “Log Cabin Republicans,” was victorious in its lawsuit asserting that the “don’t ask, don’t tell” policy (DADT) violates the Fifth and First Amendments to the U.S. Constitution.

The ruling, likely to be appealed, comes at a time when President Barack Obama has urged the repeal of DADT, and a proposal to do just that is expected to come before the Senate this month. Defense Secretary Robert Gates and Joint Chief of Staff Chairman Admiral Mike Mullen support the repeal.

DADT was signed into law in 1993 by former President Bill Clinton. The rule allows military members who are gay or lesbian to serve as long as they are not open about their orientation.

In Thursday’s ruling, California Federal District Court Judge Virginia Phillips applied “intermediate scrutiny” to DADT, which means that “it must be shown that the law or policy being challenged furthers an important government interest in a way that is substantially related to that interest.” She wrote: “Finally, it again must be noted that Defendants called no witnesses, put on no affirmative case, and only entered into evidence the legislative history of the Act.” Her full ruling can be read here.

Phillips found that in order for DADT “to survive Plaintiff’s constitutional challenge, it must [1] advance an important governmental interest, [2] the intrusion must significantly further that interest, and [3] the intrusion must be necessary to further that interest.” The Court deferred to Congress’ “exercise of authority” on management of the military and focused on points 2 and 3.

Regarding point 2, the judge’s ruling includes numerous references demonstrating that DADT does not significantly “further that interest” and went on to cite how, at a time when more than 13,000 service members were separated from the military under DADT, because of troop shortages, the military had to give increasing numbers of “moral waivers” to new recruits and lowered previously achieved standards for education and physical fitness. Tellingly, the military has also delayed separation of service members prosecuted under DADT to complete overseas tours, which “directly undermines any contention that the Act furthers the Government’s purpose of military readiness, as it shows Defendants continue to deploy gay and lesbian members of the military into combat, waiting until they have returned before resolving the charges arising out of the suspected homosexual conduct.”

On point 3, Phillips wrote that DADT “denies them the right to speak about their loved ones while serving their country in uniform; it punishes them with discharge for writing a personal letter, in a foreign language, to a person of the same sex with whom they shared an intimate relationship before entering military service; it discharges them for including information in a personal communication from which an unauthorized reader might discern their homosexuality. In order to justify the encroachment on these rights, Defendants faced the burden at trial of showing [that DADT] was necessary to significantly further the Government’s important interests in military readiness and unit cohesion. Defendants failed to meet that burden.”

Regarding First Amendment violations, the judge wrote “the sweeping reach of the restrictions on speech [in the DADT policy] is far broader than is reasonably necessary to protect the substantial government interest at stake here.”

The ruling goes on to describe the greater context of the impact of these “sweeping” restrictions on speech on the everyday lives of the service people cited in the case who were detached from duty under DADT.

Finally, in her conclusion, Phillips cited the Supreme Court Rostker decision: “[T]hroughout the consideration and resolution of this controversy the Court has kept well in mind the overriding principle that ‘judicial deference to such congressional exercise of authority is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged.’ Nevertheless, as the Supreme Court held in Rostker, ‘deference does not mean abdication’ … Plaintiff has demonstrated it is entitled to the relief sought … a judicial declaration that the ['don't ask, don't tell' policy] violates the Fifth and First Amendments and a permanent injunction barring its enforcement.”

Aubrey Sarvis, executive director of Servicemembers Legal Defense Network, an organization dedicated to ending DADT, issued this statement: “We’re pleased by the judge’s decision, but this decision is likely to be appealed and will linger for years. Congress made the DADT law 17 years ago and Congress should repeal it. The Senate will have the opportunity to do just that this month and most Americans think the Senate should seize it.”

4 Comments

  • And what does this mean for all of the gay service members forced into an honoroable discharge? If they wanted to return, that is, after being treated in such a way.

  • I have yet to comprehend how a person’s sexual orientation affects the military’s effectiveness. I am, however, reminded how once upon a time in America’s history the powers that be(politicians, citizens, and even the courts) thought that the color of a person’s skin should dictate a person’s ability or inability to serve in the military. But, the 54th Infantry, along with many others, proved how WRONG they were.

  • My question is similar to the one above. If this ruling holds, do those who were forced out of the military have legal recourse?

  • I served for many years in the U.S. Army and I can assure you that I served with many gay and lesbians throughout those years. I think there is some minor concerns with housing arrangements as those in the opposite sex are not allowed to live together due to relationshop concerns. That would have to be analyzed to prevent same sex couples from sharing quarters . With that said I can’t think of any reason why gays and lesbians can’t serve openly in the U. S. military. I do think there should remain restrictions on what you can do or say in uniform. Enough already! Many, many gays and lesbians have already served honorably but can’t do it openly.

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