Federal Judge: “Don’t Ask, Don’t Tell” Is Unconstitutional

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The United States military’s ban on openly gay and lesbian service members, familiarly known as “Don’t Ask, Don’t Tell,” has been declared unconstitutional by a federal judge in Riverside, California.

U.S. District Judge Virginia A. Phillips issued the ruling, marking the first successful legal challenge to the DADT policy since it was enacted by Congress during the Clinton administration, in 1993. Although both President Obama and the chairman of the Joint Chiefs of Staff, Admiral Mike Mullen, have called for the policy’s repeal, it has nevertheless remained in place.

Phillips’s 85-page ruling, which came in a 2004 case filed by the Log Cabin Republicans, a gay political organization, said that having openly gay service members has not negatively effected either military capability or troops’ morale. On the contrary, it has served to “impede military readiness and unit cohesion rather than further these goals.”

DADT, continued Phillips, has damaged recruitment numbers, resulted in the discharge of “critical” service members, including Arabic and Persian linguists and medical personnel, and has led to the enlistment of recruits who earlier would have been deemed unfit for service—including convicted felons.

Moreover, Phillips said, the policy is unconstitutional, violating both the Fifth and the First Amendments—which protect against the abuse of government authority in legal procedures, and protect citizens’ right to free speech, respectively.

“The act discriminates based on the content of the speech being regulated,” wrote the judge. “It distinguishes between speech regarding sexual orientation, and inevitably, family relationships and daily activities, by and about gay and lesbian service members, which is banned, and speech on those subjects by and about heterosexual service members, which is permitted.”

Although over 13,000 service members have been discharged from the military under under “Don’t Ask, Don’t Tell,” the number of discharges has declined significantly since the U.S. became involved in the Afghanistan and Iraq wars, and all branches of the military have delayed the discharges of service members in violation of the policy pending their deployments in those countries.

The government is expected to ask for a temporary injunction to prevent the ruling from going into immediate effect, and then to file a petition with the 9th Circuit U.S. Court of Appeals. If it loses that appeal, the case will go to the Supreme Court.

Gay and lesbian rights activists are applauding the decision, which comes just weeks after another federal judge rejected California’s voter-approved ban on same-sex marriages.

 

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