2010-SEP-09 to now: Federal courts find
don't tell" policy unconstitutional
Continued from a previous file which describes Congressional action to repeal DADT.
Under the Constitutional principle of separation of powers among the executive, legislative and judicial branches of the Federal Government:
Some have argued that President Obama has the authority to end the "Don't Ask Don't Tell" (DADT) through a simple executive order. 1 However, this might only be a temporary action. He or any subsequent president could simply reinstate it at any time with another executive order.
Congress can repeal the policy and replace it with an inclusive policy allowing persons of all sexual orientations to openly serve in the military. The House has done this and the Senate came close to passing a similar bill. It would not have repealed DADT immediately, but only after senior military leaders had stated that it could be done without negatively affecting military readiness. A study by the military on the effects of abolishing DADT is expected to be completed in early 2010-DEC.
A case can be brought before the federal courts in an attempt to have the existing DADT policy declared in violation of the U.S. Constitutional, and thus be unconstitutional.
This section discusses two such court cases:
One was brought by the The Log Cabin Republicans (LCR) before District Court Judge Virginia Phillips of the United States District Court for the Central District of California in a successful attempt to have DADT declared unconstitutional. She issued a worldwide "judgment and permanent injunction" on 2010-OCT-12.
Judge Phillips's ruling was suspended pending an appeal to the United States Court of Appeals for the Ninth Circuit. On 2011-JUL-06, a three judge panel of the federal 9th Circuit Court of Appeals restored the injunction. Any lesbian, gay, or bisexual is safe, for now, to reveal their sexual orientation. However, in the unlikely event that the full Court of Appeals eventually rules that the DADT is constitutional, or that the U.S. Supreme Court rules it constitutional, any service member who has come out of the closet will be in danger of discharge.
Another was brought by Maj. Margaret Witt before U.S. District Judge Ronald Leighton in Washington State in a successful attempt to obtain reinstatement in the Air Force.