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Religious Tolerance logo

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

Overview of the case

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Overview of Plaintiff's claim that DADT violates servicemembers' due process rights:

This case was heard by District Court Judge Virginia Phillips of the U.S. District Court of the Central Federal District of California during the second half of 2010-JUL.

However, seven years previously, on 2003-JUN-26, the U.S. Supreme Court had ruled in another case: Lawrence v. Texas. It had a major impact on the DADT case. That court determined that anti-gay laws in Texas and in over a dozen other states were unconstitutional. These laws had criminalized consenting same-sex behavior by adults in private. The court recognized human rights under the U.S. Constitution that are associated with the:

"... autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct." 1

At that time, all four of the strict constructionist Justices on the Supreme Court believed that not all of these freedoms existed under the Constitution. The four were narrowly outvoted by the remaining five Justices who viewed the U.S. Constitution as a living document whose meaning changes with the evolving culture.

Judge Phillips noted that in 2008:

"The Ninth Circuit in Witt v. Department of Air Force, ... held [that] the Don't Ask, Don't Tell Act constitutes an intrusion '... upon the personal and private lives of homosexuals, in a manner that implicates the rights identified in Lawrence, and is subject to heightened scrutiny'."

If the intrusion of the Don't Ask, Don't Tell (DADT) policy into the private lives of the servicemembers is to be found constitutional under heightened scrutiny , it must meet three criteria.

  1. It must advance an important governmental interest, and
  2. The intrusion must significantly further that interest, and
  3. The intrusion must be necessary to further that interest."

The Ninth Circuit Court of Appeals found that DADT satisfied the first criteria. It was up to Judge Phillips to determine whether it met both the second and third criteria. She found that the Act does not "significantly further" the Government's interests in military readiness or unit cohesion, and thus is not constitutional.

During their closing arguments, the Defendants -- the Federal Department of Justice -- did refer to seven reports by various expert groups and individuals. However, as Judge Phillips wrote in her ruling, they:

"... did not include precise citations to any portion of the above-referenced materials to support the constitutionality of the Policy."

She did note that the testimony of former servicemembers during the trial:

  • "... provides ample evidence of the Act's [negative] effect on the fundamental rights of
    homosexual members of the United States military", and

  • " ... demonstrates that the [DADT] Act adversely affects the Government's interests in
    military readiness and unit cohesion.

She also noted that:

The Log Cabin Republicans, the "... Plaintiff[,] introduced other evidence, from witnesses in such specialties as national security policy, military sociology, military history, and social psychology ..."

Their testimony indicated that DADT did not further the Government's interests in military readiness or unit cohesion.

Finally, she noted that:

"Among those discharged [under the DADT policy] were many with critically needed skills. According to the Government's own data, many of those discharged pursuant to the Act had education, training, or specialization in so-called 'critical skills,' including Arabic, Chinese, Farsi, or Korean language fluency; military intelligence; counter terrorism; weapons development; and medicine. ... Far from furthering the military's readiness, the discharge of these service men and women had a direct and deleterious effect on this governmental interest."

She declared the Don't Ask, Don't Tell policy to be unconstitutional and issued an injunction to prevents its application everwhere within the U.S. military.

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References used:

The following information source was used to prepare and update the above essay. The hyperlink is not necessarily still active today.

  1. Virginia Phillips, "Text of ruling: Case No. CV 04-08425-VAP (Ex)," Page 46. 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-16
Author: B.A. Robinson

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