Congress, the Pentagon and the White House all may intercede in the coming weeks or months to formally end the U.S. military's controversial "Don't ask, don't tell" policy toward gay and lesbian service members. But it won't be without a little pushing from the judiciary as well. A federal trial judge in California guaranteed the tri-branch dynamic Thursday evening when she ruled the beleaguered policy an unconstitutional infringement
upon the First and Fifth Amendment rights of soldiers.
Nominated to the bench by President Clinton, the same man who endorsed the compromise policy in 1993, U.S. District Judge Virginia Phillips was quick to label as temporary her landmark decision. She declared that she plans to issue an injunction in one week banning enforcement of the regulation
that calls for the "separation" from the Armed Forces of openly gay soldiers. But, mindful of the national and international ramifications of her ruling, she also declared that she would give federal lawyers an opportunity to appeal her decision before it takes effect. Justice Department lawyers had vigorously defended the DADT regulations in the case, even as their political patrons have backed away from it, and are expected to challenge aspects of Judge Phillips' ruling before the 9th U.S. Circuit Court of Appeals.
There have been many other legal challenges
to the U.S. military's DADT policy over the years. They have all failed until now. What made this case different were public announcements like this from President Obama, the commander in chief, who said in 2009: " 'Don't Ask, Don't Tell' doesn't contribute to our national security. . . . Preventing patriotic Americans from serving their country weakens our national security. . . . [R]eversing this policy [is] the right thing to do [and] is essential for our national security." Judge Phillips even cited a Twitter message (verified, she assures us) from Adm. Mike Mullen, chairman of the Joint Chiefs of Staff, who wrote: "Stand by what I said [testifying in the U.S. Senate Armed Services Committee on Feb. 2, 2010]: Allowing homosexuals to serve openly is the right thing to do. Comes down to integrity."
These official announcements allowed Judge Phillips to discount the legal arguments, made by government attorneys, that the DADT policy remains necessary to ensure unit cohesion. But it was the testimony of former soldiers, and military experts, that provided the main support for her ruling. Indeed, like the same-sex marriage ruling offered up last month by another federal trial judge in California, Judge Phillips' 86-page ruling against DADT indicates that she presided over a remarkably one-sided trial favoring those who support an end to the regulation. So far, the legal defense of DADT has been as paltry and unfocused as was the legal defense of same-sex marriage in the Proposition 8 fight.
For example, in applying the constitutional test for such government action, Judge Phillips wrote: "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. Plaintiff also has proven that the Act prevents service members from reporting violations of military ethical and conduct codes, even in outrageous instances, for fear of retaliatory discharge." There are dozens of pages within the ruling devoted solely to the summary of testimony of former (and current) soldiers -- solid evidence that the 9th Circuit, and perhaps the United States Supreme Court, will certainly find difficult to ignore.
Judge Phillips ruled that the plaintiffs had proven to her satisfaction that the military policy does not "significantly further" the government's interests and, indeed, undercuts those interests. She wrote:
. . . by impeding the efforts to recruit and retain an all-volunteer military force, the Act contributes to critical troop shortages and thus harms rather than furthers the Government's interest in military readiness;
by causing the discharge of otherwise qualified service members with critical skills such as Arabic, Chinese, Farsi, and Korean language fluency; military intelligence; counterterrorism; weapons development; and medical training, the Act harms rather than furthers the Government's interest in military readiness;
by contributing to the necessity for the Armed Forces to permit enlistment through increased use of the "moral waiver" policy and lower educational and physical fitness standards, the Act harms rather than furthers the Government's interest in military readiness;
Defendants' actions in delaying investigations regarding and enforcement of the Act until after a service member returns from combat deployment show that the Policy is not necessary to further the Government's interest in military readiness or unit cohesion;
by causing the discharge of well-trained and competent service members who are well-respected by their superiors and subordinates, the Act has harmed rather than furthered unit cohesion and morale;
the Act is not necessary to protect the privacy of service members because military housing quarters already provide sufficient protection for this interest.
Judge Phillips' ruling thus creates both a headache and an opportunity for the White House, Congress and the Pentagon. It is a headache because it forces the other two branches either to defend DADT on appeal -- good luck with that -- or to embrace the judge's findings perhaps before it is politically expedient to do so. On the other hand, it is an opportunity, or more like a convenient excuse, because it creates political and legal cover for the Obama administration and Congress to do what they are leaning toward doing anyway. Now the politicians can point to this lengthy, detailed ruling and say to their constituents with a straight face: "In addition to concluding that DADT may be bad policy, we also now have reason to believe it's unlawful."