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Federal Judge Finds Don’t Ask, Don’t Tell ‘Infringes On The Fundamental Rights In Many Ways’

By Igor Volsky  

"Federal Judge Finds Don’t Ask, Don’t Tell ‘Infringes On The Fundamental Rights In Many Ways’"

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Moments ago, a federal judge in California struck down the Don’t Ask, Don’t Tell policy as unconstitutional in a case brought forward by the Log Cabin Republicans. In an 86 page opinion, Judge Virginia A. Phillips ruled that DADT violated the due process clause of the Fifth Amendment and the servicemembers’ First Amendment rights.

Specifically, Phillips found that the government — which called no witnesses and only entered into evidence the legislative history of the Act — could not prove that DADT was “necessary to significantly further the Government’s important interests in military readiness and unit cohesion” or that it “significantly furthers the Government’s interests nor that it is ‘necessary’ in order to achieve those goals”:

Thus, the evidence at trial demonstrated that the Act does not further significantly the Government’s important interests in military readiness or unit cohesion, nor is it necessary to further those interests. Defendants’ discharge of homosexual servicemembers pursuant to the Act not only has declined precipitously since the United States began combat in Afghanistan in 2001, but Defendants also delay individual enforcement of the Act while a servicemember is deployed in a combat zone. If the presence of a homosexual soldier in the Armed Forces were a threat to military readiness or unit cohesion, it surely follows that in times of war it would be more urgent, not less, to discharge him or her, and to do so with dispatch. The abrupt and marked decline – 50% from 2001 to 2002 and steadily thereafter – in Defendants’ enforcement of the Act following the onset of combat in Afghanistan and Iraq, and Defendants’ practice of delaying investigation and discharge until after combat deployment, demonstrate that the Act is not necessary to further the Government’s interest in military readiness.

DADT “infringes on the fundamental rights of United States servicemembers in many ways,” the ruling continues. “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.”

On the first amendment claim, Phillips found that “the sweeping reach of the restrictions on speech in the Don’t Ask, Don’t Tell Act is far broader than is reasonably necessary to protect the substantial government interest at stake here. ” “The Act does not prohibit servicemembers from discussing their sexuality in general, nor does it prohibit all servicemembers from disclosing their sexual orientation,” Phillips wrote. “Heterosexual members are free to state their sexual orientation, ‘or words to that effect,’ while gay and lesbian members of the military are not. Thus, on its face, the Act discriminates based on the content of the speech being regulated. It distinguishes between speech regarding sexual orientation, and inevitably, family relationships and daily activities, by and about gay and lesbian servicemembers, which is banned, and speech on those subjects by and about heterosexual servicemembers, which is permitted.”

The court will enter a permanent injunction barring further enforcement of DADT. “This is an historic moment and an historic ruling for the gay military community,” said Alexander Nicholson, Executive Director of Servicemembers United and a multi-lingual U.S. Army interrogator who was discharged under ‘Don’t Ask, Don’t Tell.’ “As the only named injured party in this case, I am exceedingly proud to have been able to represent all who have been impacted and had their lives ruined by this blatantly unconstitutional policy. We are finally on our way to vindication.”

Aubrey Sarvis, executive director of Servicemembers Legal Defense Network, welcomed the ruling, but stressed that “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,” he added.

Update

Sen. Kirsten Gillibrand (D-NY) tweets: “Fed’l judge in CA has ruled #DADT unconstitutional. Great news! It’s my hope that DOJ does not appeal. DADT is immoral…”


Update

,HRC President Joe Solmonese also pressuring Senate to now act on DADT: “With this legal victory in hand, Congress is right now in a perfect position to strengthen our national security by ending a law that has discharged thousands of capable service members. With House passage already secured, the Senate can and should vote in the next few weeks to repeal ‘Don’t Ask, Don’t Tell’ and allow every qualified man and woman the chance to serve with honor.


Update

,Shannon Minter clarifies:

“Judge Phillips has not yet entered the judgment. She asked the plaintiffs to submit a proposed order including a permanent injunction by September 16. When she enters the judgment, she can either permit it to take effect immediately, stay it while the decision is on appeal, or temporarily stay it to give the Ninth Circuit an opportunity to rule on whether her decision should be stayed during the appeal. Because this is a facial challenge, not just an as-applied challenge, if the decision is upheld on appeal, it will apply to the whole country and will be the end of Don’t Ask, Don’t Tell.”


Update

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