Six years after the Log Cabin Republicans filed suit, and 7 weeks after closing arguments on July 23, Judge Virginia A. Phillips of the US District Court, Central District of CA, issued a landmark ruling yesterday, which overturned “Don’t Ask, Don’t Tell.” Judge Phillips said in her ruling that it violates servicemembers’ Constitutional rights, and that she would issue an injunction against the government to stop it from being further enforced.
Log Cabin Republicans (LCR) said DADT violates due process guaranteed by the 5th amendment of the Constitution and their freedom of speech, association, and the ability to petition the government, guaranteed by the 1st amendment.
Is this finally the end of one of President Clinton’s least popular compromises of the last century ? Or will the Obama administration, who has dawdled on fulfilling a campaign promise to end DADT by refusing to issue an executive order, appeal, and continue to waffle and defer to yet another Pentagon study after Defense Secretary Gates’ latest one is due out on Dec 1 2010 ?
Since the policy was first introduced in 1993, over 13,000 military personnel have been discharged because of DADT, with 619 being discharged in 2008 and 428 being discharged in 2009. (In the first two years of the Bush administration, it was 1,241 and 1,273 troops discharged, respectively). Per wikipedia, of the the 26 counties of NATO, more than 22 of those already permit gay people to serve, all of the countries of the European Union except Greece permit gay people to serve, and of the UN Security Council, 3 countries, Great Britain, France, and Russia permit gays to serve, with only the United States and China still stuck in the past.
The decision puts the White House in a quandary, since it comes as the Obama administration is in the middle of a cautious and drawn-out attempt to lift the ban on homosexuals serving openly in the US military.
But those carefully calibrated plans may now be thrown out the window, after Judge Phillips granted a request for an injunction halting “Don’t Ask, Don’t Tell” from operating, saying evidence showed that it had a “direct and deleterious effect” on the military.
A pdf of the complete ruling by Judge Phillips is here, Log Cabin Republicans v. United States of America and Robert M Gates, Secretary of Defense:
Many of the lay witnesses also spoke of the chilling effect the Act had on their ability to bring violations of military policy or codes of conduct to the attention of the proper authorities.
The Act prevents servicemembers from openly joining organizations such as the plaintiff in this lawsuit that seek to change the military’s policy on gay and lesbian servicemembers; in other words, it prevents them from petitioning the Government for redress of grievances. John Doe, for example, feared retaliation and dismissal if he joined the Log Cabin Republicans under his true name or testified under trial; thus, he was forced to use a pseudonym and to forgo testifying during trial. (Ex. 38 Doc Decl. pp 6- 8; see Trial Tr 88:19- 90:15, July 13, 2010, 708:21- 709:4, July 16, 2010 )
Furthermore, as discussed above, the Act punishes servicemembers with discharge for writing a private letter, in a foreign language, to a person of the same sex with whom they shared an intimate relationship before volunteering for military service. It subjects them to discharge for writing private e- mail messages, in a manner otherwise approved, to friends or family members, if those communications might lead the (unauthorized ) reader to discern the writer’s sexual orientation. These consequences demonstrate that the Act’s restrictions on speech are broader than reasonably necessary to protect the Government’s interest. Moreover, the Act’s restrictions on speech lead to the discharge of servicemembers with qualifications in critically needed occupations, such as foreign language fluency and information technology. The net effect of these discharges, as revealed not only in the testimony of the lay witnesses but also of the experts who testified and Defendants’ own admissions regarding the numbers of servicemembers discharged and the costs of recruiting and maintaining an all volunteer military force, compel the conclusion that the Act restricts speech more than reasonably necessary to protect the Government’s interests.
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. This evidence, discussed in Section IV(C)(1) above, does not suffice to show the Act’s restrictions on speech are “no more than what is reasonably necessary” to achieve the goals of military readiness and unit cohesion. (See supra Section IV (C)(1)
Throughout 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.” Rostker, 453 U.S.at 70. Nevertheless, as the Supreme Court held in Rostker, “deference does not mean abdication.” Id. at 67,70. Plaintiff has demonstrated it is entitled to the relief sought on behalf of its members, a judicial declaration that the Don’t Ask, Don’t Tell Act violates the Fifth and First Amendments, and a permanent injunction barring its enforcement.
“Deference does not mean abdication….” but since the Obama Dept. of Justice abdicated putting on much of a defense, does this mean they’re finally going to stop deferring to this form of discrimination ?