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Religious Tolerance logo

Federal court finds "Don't ask, don't tell" policy unconstitutional

The basis of the lawsuit.

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The trial:

The Log Cabin Republicans (LCR) -- a group of lesbians, gays and bisexuals who support the Republican Party -- challenged the constitutionality of the DADT policy before District Court Judge Virginia Phillips of the United States District Court for the Central District of California.

The LCR said that 13,500 service members have been ejected from the Military -- many with less than honorable discharges and without benefits -- under this policy since it was first implemented during the Clinton administration in 1994.

Their lawsuit was based on:

  • Personal testimony by six "lay witnesses" who were lesbian, gay or bisexual officers who had been separated against their will from the military due to DADT. All six would like to return to the military if DADT were repealed and they could openly serve.

  • Conflicts between the DADT policy and the U.S. Constitution. Specifically, they claimed that DADT violated soldiers' Constructional guarantees of':
    • Freedom of speech in the 1st Amendment;
    • Open association in the 1st Amendment;
    • Freedom to petition the Federal Government in the 1st Amendment; and
    • Due process in the 5th Amendment.

  • A statement by President Obama that continuing DADT weakens national security. At a White House dinner on 2010-JUN-29 -- which celebrated the 40th anniversary of the Stonewall police riots that triggered the gay rights movement, -- he had said:
    "I believe 'don't ask, don't tell' doesn't contribute to our national security. In fact, I believe preventing patriotic Americans from serving their country weakens our national security. 1
  • Statements by top military commanders who oppose DADT.

  • Recruitment problems: They suggested that the DADT policy forces qualified and trained personnel out of the military at a time when the Armed forces are having difficulties recruiting sufficient people.

Even though the administration was attempting at the time to overturn DADT by Congressional action, government lawyers defended the current policy and argued that it be retained. U.S. Department of Justice attorney Paul G. Freeborne maintained that Congress should be ultimately decide the policy's fate.

District Court Judge Virginia Phillips heard arguments during the second half of 2010-JUL. In her ruling, after establishing that the LCR had standing to bring the case to court, she wrote:

  • "Plaintiff has proven that the Act captures within its overreaching grasp such activities as private correspondence between and their family members and friends, and conversations between servicemembers about their daily off-duty activities."

  • "Plaintiff has proven that the Act prevents servicemembers from reporting violations of
    military ethical and conduct codes, even in outrageous instances, for fear of retaliatory discharge. All of these examples, as well as others contained in the evidence ... reveal that Plaintiff has met its burden of showing that the Act does not have a 'plainly legitimate sweep'."

The Justice department, as defendants, suggested that since the LCR challenged the constitutionality of the statute itself rather than challenging how it is applied, that the Court should only hear evidence about the statute's wording and its bare legislative history. All other evidence would be irrelevant. Judge Phillips rejected this assertion on the basis of past precedences established in other lawsuits.

Judge Phillips noted that "... apart from the Act itself and its legislative history, Defendants
admitted no evidence and produced no witnesses."

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Barack Obama, "Obama White House LGBT Stonewall Fete,", 2010-JUN-29, at:
  2. Virginia Phillips, "Text of ruling: Case No. CV 04-08425-VAP (Ex)," Filed 2010-SEP-09, at: This is a PDF file.

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Home > "Hot" topics > Homosexuality & Bisexuality > Challenges > DADT > Lawsuit > here

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Copyright © 2010 by Ontario Consultants on Religious Tolerance
Originally written: 2010-SEP-11
Latest update: 2010-SEP-11
Author: B.A. Robinson

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