Military’s ‘Don’t Ask, ‘Don’t Tell’|Policy Found Unconstitutional

LOS ANGELES (CN) – A federal judge on Thursday found the U.S. military’s “don’t ask, don’t tell” policy unconstitutional. U.S. District Judge Virginia Phillips ruled that the Pentagon failed to show that “discharge of homosexual servicemembers significantly furthers government interests in military readiness or troop cohesion, or that discharge is necessary to those interests.” Phillips found that the military hurt its own readiness by discharging troops with “critically needed skills … including Arabic, Chinese, Farsi, or Korean language fluency; military intelligence; counterterrorism; weapons development; and medicine.”




     Judge Phillips agreed with plaintiff Log Cabin Republicans “that the Don’t Ask, Don’t Tell Act violates the Fifth and First Amendments, and found that the Pentagon failed to show that “discharge of homosexual servicemembers significantly furthers government interests in military readiness or troop cohesion, or that discharge is necessary to those interests.”
     Phillips asked the plaintiffs to submit a proposed judgment and permanent injunction by Sept. 16. Defendant, Secretary of Defense Robert Gates, will then have seven days to submit objections.
     The plaintiffs, a group of gay Republicans, challenged the constitutionality of the act – 10 U.S.C. § 654 – and its implementing regulations.
     “Plaintiff’s challenge is two-fold: it contends the Act violates its members’ rights to substantive due process guaranteed by the Fifth Amendment to the United States Constitution, and its members’ rights of freedom of speech, association, and to petition the government, guaranteed by the First Amendment,” Judge Phillips wrote in her 86-page ruling.
     “The Court finds Plaintiff Log Cabin Republicans (sometimes referred to in this Order as ‘Log Cabin,’ ‘LCR,’ or ‘Plaintiff’), a non-profit corporation, has established standing to bring and maintain this suit on behalf of its members. Additionally, Log Cabin Republicans has 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.”
     The Act, as Judge Phillips explained in a footnote, “provides that any member of the U.S. Armed Forces who engages in homosexual conduct is subject to discharge unless the servicemember is able to demonstrate that he or she has no propensity to engage in ‘homosexual conduct.’ Under the Act, homosexual conduct includes sexual acts with persons of the same sex, admissions that one is homosexual or bisexual, and attempts to marry a person of the same sex.”
     The case, tried in July, included testimony from homosexual service members who had been decorated for their service who were discharged for their sexual orientation, some of whom said they would rejoin the service if permitted.
     Judge Phillips found that the Pentagon failed to “satisfy Defendants’ burden of proving that the Act, with its attendant infringements on the fundamental rights of Plaintiff’s members, significantly furthers the Government’s interest in military readiness or unit cohesion.”
     Judge Phillips cited, without comment, Gen. Colin Powell’s trial testimony that “rejected attempts to draw parallels between exclusion of homosexuals and historical exclusion of African-Americans, because ‘skin color is a benign nonbehavioral characteristic, while sexual orientation is perhaps the most profound of human behavioral characteristics.'”
     The judge noted, however, that Powell’s “testimony implied that any final resolution of the issue, regardless of substance, would improve military readiness.” (p. 55 of the ruling).
     In the Pentagon’s own reports and studies, Phillips found, the Defense Department did not show that “discharge of homosexual servicemembers significantly furthers government interests in military readiness or troop cohesion, or that discharge is necessary to those interests.” (The so-called Crittenden Report, of 1957 – p. 49 in the ruling).
     She found that the Pentagon “cites no evidence that homosexual servicemembers adversely affect military readiness or unit cohesion … [and] points to no existing empirical data. In general, the Report suggests the military begin a transition towards acceptance of homosexual servicemembers. (The PERSEREC Report, of 1988 – p. 50 in the ruling).
     The Rand Corp., in a 1993 report done at the behest of the Pentagon, found that “no empirical evidence exists demonstrating the impact of an openly homosexual servicemember on the cohesion of any military unit.” (p. 52 of the ruling).
Judge Phillips cited a GAO report that the Defense Department had discharged at least 7,856 service members from 1994 to 2001 under the Act. The 2005 report was titled, “Financial Costs and Loss of Critical Skills Due to DOD’s Homosexual Conduct Policy.” Another 5,167 were discharged from 2002-2009, during the military’s increased need for soldiers during wartime.
     “The decline in discharges after 2001, according to Dr. Nathaniel Frank, [in trial testimony] illustrates that during wartime the military retains servicemembers known to be homosexual, despite the Don’t Ask, Don’t Tell Act requiring discharge, because of the heightened need for troops,” Judge Phillips wrote (p. 59).
     “Among those discharged were many with critically needed skills. According to the Government’s own data, many of those discharged pursuant to the Act had education, training, or specialization in so-called ‘critical skills,’ including Arabic, Chinese, Farsi, or Korean language fluency; military intelligence; counterterrorism; weapons development; and medicine. (Trial Tr. 199:24-200:5, 204:23-24, July 13, 2010; Trial Ex. 9.) Far from furthering the military’s readiness, the discharge of these service men and women had a direct and deleterious effect on this governmental interest.”
     Judge Phillips concluded: “The Don’t Ask, Don’t Tell Act infringes the fundamental rights of United States servicemembers in many ways, some described above. 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.” (p. 74)

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