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Religious Tolerance logo

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

Adverse influences of DADT. The smoking gun.

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As mentioned previously, the courts must examine DADT using heightened scrutiny. In this case, in order to allow its intrusion into the private lives of servicemembers, DADT must

  1. Significantly further a government interest, and
  2. The intrusion must be necessary to further that interest."
Otherwise, DADT must be considered unconstitutional.

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Adverse influences of DADT:

Dr. Lawrence Korb, a senior fellow at the Center for American Progress, and an expert on military preparedness and national security issues, testified that DADT adversely affects military recruiting because:

  • Its existence discourages those who would otherwise enlist from doing so, and

  • many colleges and universities will not permit military recruiting or ROTC programs on campus because the Act's requirements violate their employment nondiscrimination policies on the basis of sexual orientation.

He estimates that if DADT were repealed, the military would gain about 40,000 new recruits. Further, about 4,000 more servicemembers would re-enlist every year rather than leave voluntarily. 1

District Court Judge Phillips also summarized Dr. Korb's testimony concerning the nature of the military:

"He opined that in order for the military to perform its mission successfully, it must mold persons from vastly different backgrounds who join it into a united and task-oriented organization. He described the military as a meritocracy, but testified that the Don't Ask, Don't Tell Act detracts from the merit-based nature of the organization, because discharges under the Act are not based on the servicemember's failure to
perform his or her duties properly, or on the effect of the soldier's presence on the unit's morale or cohesion." 2

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The smoking gun:

The Log Cabin Republicans produced evidence at trial showing that:

  • Separations under DADT dropped significantly when military activities in Afghanistan increased. This demonstrates that the military willingly retained known gay, lesbian and bisexual troops whenever the need for more combat personnel increased.

  • The military routinely delayed investigations under DADT until after deployed servicemembers returned from combat overseas.

Judge Phillips notes that:

"This evidence, in particular, directly undermines any contention that the Act furthers the Government's purpose of military readiness, as it shows Defendants continue to deploy [known] gay and lesbian members of the military into combat, waiting until they have returned before resolving the charges arising out of the suspected homosexual conduct."

"If the warrior's suspected violation of the Act created a threat to military readiness, to unit cohesion, or to any of the other important Government objectives, it follows that Defendants would not deploy him or her to combat before resolving the investigation. It defies logic that the purposes of the Act could be served by suspending the investigation during overseas deployments, only to discharge a servicemember upon his or her return to a non-combat station." 3

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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. Virginia Phillips, "Text of ruling: Case No. CV 04-08425-VAP (Ex)," Page 62. Filed 2010-SEP-09, at: This is a PDF file.
  2. Op Cit, Phillips, Page 61.
  3. Op Cit, Pages 64 & 65.

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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-13
Latest update: 2010-SEP-16
Author: B.A. Robinson

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