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

2010-SEP & OCT: Judge Virginia Phillips'
observations, ruling, & permanent injunction
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Most news media, blogs, etc. generally take one of two positions on Judge Phillip's ruling that the Don't Ask, Don't Tell policy (DADT) is unconstitutional:

  • Those who agree with the decision agree that the government's Don't Ask, Don't Tell (DADT) policy intrudes on the fundamental human rights of lesbian, gay and bisexual servicemembers, including the right of free speech and the right to enter into intimate relationships with other adults in private.

    According to decisions of prior courts, this can only be considered constitutional if certain criteria are met: The policy must significantly further a government interest, and the intrusion must be necessary to further that interest. Judge Phillips determined that neither criteria was satisfied. Thus, the DADT policy is clearly unconstitutional.

  • Those who disagree with the decision view JUdge Phillips as an activist judge who legislated from the bench. That is, she decided to overturn DADT on the basis of her personal whim. Thus an unelected judge overturned the reasoned decision of an elected legislative body simply because she felt the law was wrong.

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Judge Phillips observations:

Judge Phillips concluded from the evidence submitted at trial:

"Taken as a whole, the evidence introduced at trial shows that the effect of the Act has been, not to advance the Government's interests of military readiness and unit cohesion, much less to do so significantly, but to harm that interest. The testimony demonstrated that since its enactment in 1993, the Act has harmed efforts of the all-volunteer military to recruit during wartime. The Act has caused the discharge of servicemembers in occupations identified as "critical" by the military, including medical professionals and Arabic, Korean, and Farsi linguists. At the same time that the Act has caused the discharge of over 13,000 members of the military, including hundreds in critical occupations, the shortage of troops has caused the military to permit enlistment of those who earlier would have been denied entry because of their criminal records, their lack of education, or their lack of physical fitness. 1

"... to justify the infringement on the fundamental rights identified in Lawrence, a defendant must satisfy both the requirement that the Act 'significantly furthers' the Government's interests and the requirement that it is 'necessary' to achieve them. To the extent that Defendants have made a distinct argument here that the Act is necessary to achieve the Government's significant interest, they have not met their burden as to this prong of the Witt test, either. 2

She concluded that the policy does not significantly promote military readiness. It does not promote readiness at all. It actually has has a "direct and deleterious effect" on the armed services.

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Judge Phillips' ruling:

On 2010-SEP-09, U.S. District Judge Virginia Phillips in Southern California issued her 86 page ruling. She concluded, on the basis of all the testimony presented at trial, that the U.S. Military's ban on sexual minorities serving openly was unconstitutional. 3

She concluded:

"The Don't Ask, Don't Tell Act infringes the fundamental rights of United States servicemembers in many ways. ... The Act denies homosexuals serving in the Armed Forces the right to enjoy 'intimate conduct' in their personal relationships. The Act denies them the right to speak about their loved ones while serving their country in uniform; it punishes them with discharge for writing a personal letter, in a foreign
language, to a person of the same sex with whom they shared an intimate relationship before entering military service; it discharges them for including information in a personal communication from which an unauthorized reader might discern their homosexuality. In order to justify the encroachment on these rights, Defendants faced the burden at trial of showing the Don't Ask, Don't Tell Act was necessary to significantly further the Government's important interests in military readiness and unit cohesion. Defendants failed to meet that burden. Thus, Plaintiff, on behalf of its members, is entitled to judgment in its favor on the first claim in its First Amended Complaint for violation of the substantive due process rights guaranteed under the Fifth Amendment. 4

In a controversial move, she granted the Log Cabin Republicans' (LCR's) request for an injunction that terminates the policy -- not just in California, but everywhere. Justice Department lawyers argued that Judge Phillips lacked the authority to order a nationwide injunction.

Dan Woods, the attorney for the LCR, said that the officers who were lay witnesses at the trial were

“... reacting emotionally because they’re so proud that they were able to play a part in making this happen. ... It'll be an interesting decision for our president to decide whether to appeal this case. He’s said that 'don’t ask, don’t tell' weakens national security, and now it’s been declared unconstitutional. If he does appeal, we’re going to fight like heck." 5

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2010-SEP-23: Government asks for a stay of Judge Phillips' ruling:

Lawyers from the Justice Department filed a request with Judge Virginia Phillips asking for a "reasonable" amount of time before she issued an injunction against the DADT policy. They wrote:

"A court should not compel the executive to implement an immediate cessation of the 17-year policy without regard for any effect such an abrupt change might have on the military's option, particularly at a time when the military is engaged in combat operations around the globe."

In an apparent attempt to keep their options open, the Justice Department did not indicate whether they would appeal Judge Phillip's ruling to the 9th District Court of Appeals.

White House press secretary Robert Gibbs said:

"The Justice Department is defending the statute as it traditionally does when acts of Congress are challenged. ... This filing in no way diminishes the president's firm commitment to achieve a legislative repeal of DADT. ... Indeed, it clearly shows why Congress must act to end this misguided policy."

Clarke Cooper, executive director of the Log Cabin Republicans (LCR) -- the plaintiff in the case, said:

"Many times on the campaign trail, President Obama said he would support the repeal of Don't Ask, Don't Tell. Now that it's time to step up to the plate, he isn't even in the ballpark."

The LCR's attorney, Dan Woods, said:

"What is most troubling is that the government's request for a stay [of the injunction] ignores the harm that [the] Don't Ask, Don't Tell [policy] causes to current and potential members of our Armed Forces. That is the saddest, most disappointing and, in light of the president's position, most hypocritical part of the objections." 6

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2010-OCT-12: U.S. District Judge Virginia Phillips issues permanent injunction:

A little over one month after having issued her ruling on the DADT policy, U.S. District Judge Virginia Phillips issued a worldwide "permanent injunction" against the U.S. military's ban on openly gay troops. She declared that DADT:

"... infringes the fundamental rights of United States servicemembers and prospective servicemembers and violates (a) the substantive due process rights guaranteed under the Fifth Amendment to the United States Constitution, and (b) the rights to freedom of speech and to petition the Government for redress of grievances guaranteed by the First Amendment to the United States Constitution."

She also granted the request of the plaintiff, the Log Cabin Republicans (LCR), to apply for attorneys' fees, and to file a motion for costs of the lawsuit. 7

The U.S. Department of Justice then had 60 days to appeal the ruling to the appeals court. The study ordered by Defense Secretary Robert Gates is due on 2010-DEC-01. This would enable the Justice Department to examine the report before deciding whether to appeal the ruling, if they so wish.

The LCR described the ruling as a "complete and total victory." Christian Berle, their deputy executive director said: "No longer will our military be compelled to discharge service members with valuable skills and experience because of an archaic policy mandating irrational discrimination." 8 Dan Woods, the LCR attorney, said:

"Don't ask, don't tell, as of today at least, is done, and the government is going to have to do something now to resurrect it. This is an extremely significant, historic decision. Once and for all, this failed policy is stopped. Fortunately now we hope all Americans who wish to serve their country can." 9

Wendy Wright, president of a conservative public policy group Concerned Women for America, wrote that District Judge Philips:

"... ignored the evidence to impose her ill-informed and biased opinion on our military, endangering morale, health and security of our military at a time of war. She did not do what Congress did when it passed the law and investigate the far-reaching effects of how this will detrimentally impact the men and women who risk their lives to defend us." 9

Tony Perkins, president of the fundamentalist Christian group Family Research Council, said:

"Once again, an activist federal judge is using the military to advance a liberal social agenda, disregarding the views of all four military service chiefs and the constitutional role of Congress. This move will only further the desire of voters to change Congress."

Perkins' broadside inspired Mark Silk to comment in Beliefnet's Religion and Public Life column:

"But not the views of the Commander in Chief, the Secretary of Defense, and the Chairman of the Joint Chiefs."

"Be it noted as well that the House of Representatives voted to repeal Don't-Ask-Don't-Tell in May. And that the Senate would have done the same had not Senate Republicans, in deference to the likes of Perkins, filibustered the bill. And that allowing gays to serve openly in the military is part of a liberal social agenda that Americans now support by a two-to-one margin."

"Under the circumstances, the Justice Department would seem to have more than ample grounds for departing from its usual practice and letting the judge's injunction stand unappealed." 10

Some LGBT support groups have recommended that lesbian, gay and bisexual servicemembers remain in the closet and not be open about their sexual orientation in the immediate future because the case might be appealed at any time.

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Subsequent activity

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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 64,65. Filed 2010-SEP-09, at: http://graphics8.nytimes.com/ This is a PDF file.
  2. Ibid., Page 65.
  3. Barack Obama, "Obama White House LGBT Stonewall Fete," TowleRoad.com, 2010-JUN-29, at: http://www.towleroad.com/
  4. Op. Cit., Phillips, Page 74.
  5. Raquel Maria Dillon,"Military has 1 week to appeal DADT injunction, Associated Press, 2010-AUG-19, at: http://www.airforcetimes.com/
  6. Ariane de Vogue & Devin Dwyer, "Judge Rules Firing of Lesbian Under 'Don't Ask Don't Tell' Unconstitutional," ABC News, 2010-SEP-24, at: http://abcnews.go.com
  7. Virginia Phllips, "Case No. CV 04-08425-VAP (Ex); Judgment and permanent injunction," 2010-OCT-12, at: http://www.pbs.org This is a PDF file.
  8. Valerie Richardson, "Judge orders end of 'don't ask, don't tell'," The Washington Times, 2010-OCT-12, at: http://www.washingtontimes.com/
  9. Julie Watson, "Judge orders 'don't ask, don't tell' injunction," Associated Press, 2010-OCT-12, at: http://www.forbes.com/
  10. Mark Silk, "Don't appeal DADT ruling," Beliefnet, 2010-OCT-13, at: http://blog.beliefnet.com/

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Copyright © 2010 by Ontario Consultants on Religious Tolerance
Originally written: 2010-SEP-13
Latest update: 2010-OCT-29
Author: B.A. Robinson

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