Friday September 10, 2010

Federal Judge Deems Military ‘Don’t Ask, Don’t Tell’ Rule ‘Unconstitutional’

By Kathleen Gilbert

Updated 12:55pm EST

RIVERSIDE, California, September 10, 2010 ( – A federal judge in California Thursday night ruled that the military’s “Don’t Ask, Don’t Tell” (DADT) policy banning homosexuals from disclosing their sexual orientation while serving in the U.S. military is unconstitutional.

The ruling, which the judge vowed to follow up with a permanent injunction against the policy in two weeks, arrived less than three months before the results of a Pentagon study evaluating the possible detrimental effects of repealing the policy is due to be presented to Congress.

In an 86-page opinion, Judge Virginia A. Phillips claimed that the defendants, listed as the United States and Secretary of Defense Robert Gates, have failed to prove that DADT “was necessary to significantly further the Government’s important interests in military readiness and unit cohesion.” The Log Cabin Republicans, a national homosexualist Republican group, was plaintiff in the case.

Pro-family leaders immediately condemned the ruling.

“It is hard to believe that a District Court level judge in California knows more about what impacts military readiness than the service chiefs who are all on the record saying the law on homosexuality in the military should not be changed,” said Family Research Council president Tony Perkins, a Marine veteran, in a statement late Thursday. “This is a decision for Congress that should be based upon the input of the men and women who serve and those who lead them.”

Phillips argued that the ban violates homosexuals’ First Amendment right to free speech because it disallows them from discussing their sexuality.

“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,” she wrote.

While noting that courts traditionally “apply a more deferential level of review of military restrictions on speech,” Phillips said that DADT fails to win the special protection because it “encompasses a vast range of speech, far greater than necessary to protect the Government’s substantial interests,” as it restricts off-duty socializing and other casual speech.

Phillips also argued that DADT’s restrictions “actually serve to impede military readiness and unit cohesion” by discouraging military employees from reporting anti-homosexual harassment.

The suit was first launched in 2004, but stalled due to the health problems and retirement of the first judge assigned to handle the case, the plaintiff’s attorney, Dan Woods, told the Associated Press.

Defense Department attorneys did not summon any witnesses to defend the policy, presenting only DADT’s legislative history as a defense, and arguing that the debate was a political issue that should be left to Congress.

The House of Representatives passed a repeal of the ban in May that would go into effect if Gates and the chairman of the Joint Chiefs of Staff, Admiral Mike Mullen, confirm that the repeal is sensible in light of the Pentagon report.

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