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Monday, June 24, 2024 | Back issues
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Federal Judge Blocks Military From|Enforcing ‘Don’t Ask Don’t Tell’

RIVERSIDE, Calif. (CN) - A federal judge on Tuesday issued a nationwide injunction ending the U.S. military's "Don't Ask, Don't Tell" policy banning openly gay troops. U.S. District Judge Virginia Phillips said the policy "infringes the fundamental rights of United States servicemembers," and "does not further significantly the Government's important interests in military readiness or unit cohesion."

"If the presence of a homosexual soldier in the Armed Forces were a threat to military readiness or unit cohesion, it surely follows that in times of war it would be more urgent, not less, to discharge him or her, and to do so with dispatch," Phillips wrote.

But Phillips noted that the government's enforcement of the Don't Ask Don't Tell Act dropped 50 percent from 2001 to 2002 and has continued to decline since the beginning of the wars in Afghanistan and Iraq, indicating that the policy actually undermines the government's purported goals.

She said the Act has a "direct and deleterious effect" on the military during wartime by harming recruitment and requiring the discharge of service members with critical skills and training.

Phillips listed other ways in which the policy violates the fundamental rights of gays serving in the military:

"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 Act was necessary to significantly further the Government's important interests in military readiness and unit cohesion," Phillips wrote. "Defendants failed to meet that burden."

The Act violates service members' Fifth Amendment due-process rights and their First Amendment rights, Phillips concluded.

She said the policy is an unconstitutional content-based restriction because it "distinguishes between speech regarding sexual orientation, and inevitably, family relationships and daily activities, by and about gay and lesbian servicemembers, which is banned, and speech on those subjects by and about heterosexual servicemembers, which is permitted."

She granted a request by the Log Cabin Republicans, a gay-rights group, to enjoin the military from enforcing the Don't Ask Don't Tell Act nationwide.

Phillips had declared the law unconstitutional following a two-week non-jury trial and said she planned to issue the injunction, but first asked for input from Justice Department attorneys and the Log Cabin Republicans.

Government attorneys had asked Phillips to limit her ruling to members of the Log Cabin Republicans, whose 19,000-member group includes current and former military service members, but Tuesday's injunction applies nationwide.

The Justice Department has 60 days to appeal but has no legal obligation to do so. Legal experts say the government might appeal, given President Obama's view that Congress should repeal the policy and not leave it up to the courts, according to The Associated Press.

Gay-rights organizations are hailing the landmark ruling as a victory where politics failed.

A Republican filibuster in the Senate last month blocked Democrats' hopes of repealing "don't ask, don't tell." The Senate voted 56-43 against opening debate on the National Defense Authorization Act, which included a repeal of the policy.

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