Federal judge strikes down Don’t Ask, Don’t Tell

U.S. District Judge Virginia Phillips in Riverside, Calif., struck down
the military’s Don’t Ask, Don’t Tell ban on open gays in the military
Sept. 9.

Phillips found that the ban violates the U.S. Constitution’s guarantees of
free speech and due process under the First and Fifth Amendments.

“The Don’t Ask, Don’t Tell Act infringes the fundamental rights of United
States servicemembers in many ways,” Phillips wrote in her 86-page
opinion. “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.”

Phillips said the government’s contention that letting gays be open in the
military harms its functioning is fully undermined by the fact that the
military delays discharge of gays and lesbians who violate DADT until they
return from combat deployment.

The six-year-old case, brought by the gay group Log Cabin Republicans, was
heard without a jury in July.

Phillips said she will issue a permanent injunction prohibiting the
military from enforcing Don’t Ask, Don’t Tell. She gave LCR until Sept. 16
to submit proposed language for the injunction and gave the U.S.
government until Sept. 23 to respond to LCR’s submission.

“She could at that point stay the injunction pending an appeal or, as
Judge (Vaughn) Walker did (in the federal Prop 8 case), she could deny
such a stay but grant a temporary stay to allow the government to seek a
stay pending an appeal from the 9th Circuit,” said Jon Davidson, legal
director of Lambda Legal.

If no stay is issued, it is unclear whether Phillips’ ruling would take
effect nationwide or just in California’s Central District of the federal
courts.

“This is an historic moment and an historic ruling for the gay military
community,” said Servicemembers United Executive Director Alexander
Nicholson, who was kicked out of the Army under DADT. “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.”

Gay activists responded to the ruling by calling on President Barack Obama
to cease enforcement of DADT immediately and demanding that the U.S.
Justice Department decline to appeal Phillips’ decision.

By Rex Wockner