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Federal Judge Declares “Don’t Ask, Don’t Tell” Unconstitutional

Jim Burroway

September 9th, 2010

A U.S. District Court Judge in Riverside, California, declared that the law banning gays and lesbians from serving openly in the U.S. military violates the First Amendment rights of gay Americans:

U.S. District Court Judge Virginia A. Phillips said the policy banning gays did not preserve military readiness, contrary to what many supporters have argued, saying evidence shows that the policy in fact had a “direct and deleterious effect” on the military.

Phillips said she would issue an injunction barring the government from enforcing the policy. However, the U.S. Department of Justice, which defended “don’t ask, don’t tell” during a two-week trial in Riverside, will have an opportunity to appeal that decision.

The Judge’s ruling can be downloaded here. (PDF: 236KB/86 pages). Judge Phillips not only ruled that DADT violated the First Amendment guarantees of free speech and petition, she also ruled that the act violated LGBT service member’s rights to due process under the Fifth Amendment:

The Don’t Ask, Don’t Tell Act infringes the fundamental rights of United States servicemembers in many ways, some described above. The Act denies homosexuals serving in the Armed Forces the right to enjoy “intimate conduct” in their personal relationships. The Act 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 the Don’t Ask, Don’t Tell Act was necessary to significantly further the Government’s  important interests in military readiness and unit cohesion. Defendants failed to meet that burden. Thus, Plaintiff, on behalf of its members, is entitled to judgment in its favor on the first claim in its First Amended Complaint for violation of the substantive due process rights guaranteed under the Fifth Amendment.

The judge called for the plaintiffs to submit a proposed injunction to halt enforcement of the law by September 16th. The Department of Justice will have a week to submit their objections to the injunction if they choose to do so.

The case was filed by Log Cabin Republicans on behalf of LCR members including current, retired, and former members of the U.S. armed forces. LCR is justifiably proud of their accomplishment tonight:

“As an American, a veteran and an Army reserve officer, I am proud the court ruled that the arcane Don’t Ask Don’t Tell statute violates the Constitution,” said Log Cabin Republicans Executive Director R. Clarke Cooper.  “Today, the ruling is not just a win for Log Cabin Republican servicemembers, but all American servicemembers.”



John in the Bay Area
September 9th, 2010 | LINK

We will now get to see how President Obama really feels about gay and lesbian servicemembers. If he appeals this ruling, we will have the clearest message yet that he has nothing but contempt for gay and lesbian Americans, and gay and lesbian servicemembers in particular.

Rob San Diego
September 10th, 2010 | LINK

Wow, isn’t it amazing that a Republican group would get this over turned during a Democratic administration? Hasn’t the ACLU ever tried to over turn it?

And since the Log Cabins are a republican group, I’m curious how all the other Republicans will take it?

September 10th, 2010 | LINK

why not equal protection grounds?

Mike C
September 10th, 2010 | LINK

I wanted to read this on Fox News first, not for the article, but for the comments from their homophobic readers. Naturally, they had plenty to say about a judge appointed about Clinton, California falling into the ocean, the end of the U.S. as a military power, the end of the world as we know it, etc etc etc.

Don’t you think that the poor return results of the “surveys” as a percentage of those sent out is an indication that the troops could care less who is bunking beside them. My son served in Iraq. I specifically asked him about this since I came out when he was 8 years old. (Yes, times were tough back then, but we’ve survived as a father – son relationship.) I, knowing nothing of the military, did not understand what the word ‘clear’ meant. He explained it in the simplest of terms, “My ass is in your hands.” When he stepped into the line of fire, all he was concerned about was the word ‘clear’, that his buddy backed him up 100%. There was no concern of gay or straight, or black or white, or christian or atheist. ‘Clear!’

Priya Lynn
September 10th, 2010 | LINK

So the log cabin republicans do something worthwhile. Good on them.

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