[Crossposted on “TADA.” Defenses of DADT should go on “TADA,” not on “Alas.”]
A federal judge in Riverside declared the U.S. military’s ban on openly gay service members unconstitutional Thursday, saying the “don’t ask, don’t tell” policy violates the 1st Amendment rights of lesbians and gay men.
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 issued 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.
Major congratulations are due the Log Cabin Republicans, who started this lawsuit years ago. Today, at least, I say that right wing queers rock!
Next question: Will the Obama Administration appeal? (Probably, but wouldn’t it be great if they didn’t?)
ETA: From Wonk Room’s post, a quote from the ruling:
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.
And from Wonk Room’s summary of the ruling:
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.”
Damn. I’ve never been so happy for the military before.
I so rarely have reason to say this, but: Thanks, Log Cabin Republicans!
Between this, and the Prop 8 case, which was argued in part by a Republican lawyer and decided by a Republican judge, I’m pretty pleased to know that there are still some old-school conservatives out there who actually believe that it’s a conservative value not to have the government all up in your personal business.
Delighted to see my fellow conservative Republicans holding true to principle. Yay us!
Hm. I’m not going to debate the merits of DADT; I’m agnostic on the topic and am content to leave it in the hands of the generals as to what’s in the best interests of our military readiness. I’d suggest that the Congress should take their guidance from them, as the mission of the military is to defend the country, not to meet the needs of the members of the military. If you are the kind of person who puts your desires above the needs of the country you shouldn’t be in the military to begin with. But I stress that I am equally content if the military says “keep DADT” or if they say “we should change this”.
What I think can fairly be debated is what the merits of this set of legal arguments are. It states that DADT restricts the rights of members of the military. But there’s a lot of restrictions on the rights of members of the military, including their First Amendment rights. Also, we have an all-volunteer military. If homosexuals don’t like this policy they can either not join (I can’t imagine that there’s anyone in the military that joined unaware of this policy) or, if they’re already in the military, they can quit once their enlistment or commission is up. There’s no right to be in the military, after all. They can, for example, discriminate against you if your weight exceeds their standards or if you are disabled. They can discriminate against you if your level of education is below certain standards. If you join perfectly healthy and then become injured they can discharge you involuntarily. So it’s not clear to me that banning you for both being gay and expressing your sexuality is unconstitutional.
@ RonF:
From the Opinion (pgs 82 & 83), in the section titled “The Act Does Not Survive the Level of Constitutional Scrutiny Applied to Speech in a Military Context”:
The military has the right to restrict the speech of its members where that restriction serves a substantial government interest; no such interest was proven here.
No, but there’s this thing called ENDA going through congress that will make it illegal for employers to discriminate on the basis of sexual orientation or gender identity. Let us hope that it passes.
Elfwreck, thanks for the citation. Thene, is that an aside or do you think that the military should be regarded as an employer under that proposed law?
Oh the irony that it’s Phillips that did it! But at least she did. I took history from her husband years ago.
The trial got very little press coverage here, interesting considering that the federal court is in downtown Riverside.