Judge Overturns Don’t Ask, Don’t Tell

By Boyce Hinman and Charles Peer

In the third of three recent court victories for the LGBTI community, U.S. District Judge Virginia Phillips has ruled that the U.S. Military’s Don’t Ask, Don’t Tell policy is unconstitutional. She did so in a suit brought by the Log Cabin Republicans against the policy of the U.S. military.

In her decision, released Thursday, Sept. 9, Judge Phillips said "The Log Cabin Republicans have demonstrated the Don't Ask, Don't Tell Act, on its face, violates the constitutional rights of its members. Plaintiff is entitled to the relief sought in its First Amended Complaint: a judicial declaration to that effect and a permanent injunction barring further enforcement of the Act."


“As an American, a veteran and an Army reserve officer, I am proud the court ruled that the arcane Don't Ask Don't Tell statute violates the Constitution,” said Log Cabin Republicans Executive Director R. Clarke Cooper in a released statement. “Today, the ruling is not just a win for Log Cabin Republican servicemembers, but all American servicemembers.”

The Judge ordered the Log Cabin Republicans to submit proposed wording of an injunction banning the Don’t Ask, Don’t Tell Policy by September 16. The judge’s order gave the US government seven days after that date to express any objections they may have to the proposed wording.

Of course, it is still possible that the US Government may appeal Judge Phillips’ decision.

In her decision the judge noted that the courts generally show considerable deference to the actions of Congress allowing it as much room as possible to define the laws and policies of this nation. However, she said that does not mean that the courts abdicate any of their responsibilities to determine whether or not those laws and policies are constitutional.

In her decision, Judge Phillips first addressed the question of whether or not the Log Cabin Republicans had legal standing to challenge the military’s policy in court. She found that they do have such standing.

"This is an historic moment and an historic ruling for the gay military community and for the readiness and integrity of our Armed Forces" said Alexander Nicholson, Executive Director of Servicemembers United and a former multi-lingual U.S. Army interrogator who was discharged under Don't Ask, Don't Tell. "As the only named injured party in this case, I am exceedingly proud to have been able to represent all who have been impacted and had their lives ruined by this blatantly unconstitutional policy. We are finally on our way to vindication."

Judge Phillips went on to note that the Don’t Ask Don’t Tell Act approved by Congress does far more than to just regulate military activities. She said, "Plaintiff's evidence amply illustrates that the Act does not have a "plainly legitimate sweep."

Rather, Plaintiff has proven that the Act captures within its overreaching grasp such activities as private correspondence between service members and their family members and friends, and conversations between service members about their daily off-duty activities." Judge Phillips went on to say, "The Act restricts speech more than reasonably necessary to protect the Government's interests."

Anthony Loverde, a Sacramento Valley Veterans member and a U.S. Air Force veteran, provided testimony as a "candid and credible witness" during the July trial where he discussed his service under the DADT policy. He was honorably discharged in 2008 despite supervisor recommendations to keep him serving.

"I am pleased with the ruling and this announcement should be a realization that ending this policy is the right thing to do as stated by the President, the top military commander, the Senate Armed Services Committee, and now the courts,” said Loverde. “The House has passed a resolution to end DADT in the NDAA (National Defense Authorization Act for Fiscal Year 2010) and the Senate now has the opportunity to ensure this unconstitutional law finally ends."

Judge Phillips also said in her decision that the Don’t Ask, Don’t Tell policy doesn't help military readiness and instead has a "direct and deleterious effect" on the armed services by hurting recruitment efforts during wartime and requiring the discharge of service members who have critical skills and training.

On bringing its suit against the military’s policy, the log Cabin Republican Republicans noted that over 13,500 service members have been discharged under the Don’t Ask, Don’t Tell policy since 1994.

The Government has not yet announced whether it will appeal the decision. A failure to appeal might seem good for the LGBTI community. However, if they do not appeal it is possible that Judge Phillips’ decision would only be enforceable in her court’s district area in central California.

"The decision issued by the court is momentous. Not only should it serve as an indication that this policy is unnecessary and wrong, it should serve as a clear signal that the nation is ready to see it lifted,” said SVV President Tyson Redhouse, a former Air Force intelligence analyst. “To the brave men and women serving this nation in silence, this decision, I believe, will give them a glimmer of hope that they will be able to serve openly without a stifled sense of honor. We will not leave them behind."

You may see a copy of Judge Phillips’ decision by clicking here.

Boyce Hinman is the founder of the California Communities United Institute. He can be reached at This e-mail address is being protected from spambots. You need JavaScript enabled to view it or calcomui.org

 

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