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'Don't Ask, Don't Tell' Ruling: A Headache and an Opportunity for Washington

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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."
Filed Under: Gay Rights, Military

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6 Comments

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flowerain2

The key test for military service should be patriotism, a sense of duty, and a willingness to serve. Sexual orientation has nothing to do with someones ability to complete a task in the military.

September 11 2010 at 4:57 PM Report abuse -6 rate up rate down Reply
punnster

Most do not want to tell and the other most don't want to know.

September 10 2010 at 7:50 PM Report abuse +7 rate up rate down Reply
cornerette

As a response to THIRDHERDNERD & tychristopher76. Your response(s),are rather thought provoking. Living openly as a lesbian,I have known folks ( gay, straight, lesbian, male and female)that served proudly in our military. That being said, here is some other words to ponder. To your quote :"Serving in the open or being able to tell if you will is not about wanting to stay in the military it is about wanting to force others to accept your chosen lifestyle whether they want to or not." ThirdHerd, since you believe this ,then you must believe that the "chosen straight lifestyle" is something that gays are forced to accept. To the quote" Males and females are separated in the military because they see each other as sexual beings and neither women or men should have to serve in close quarters with someone who looks at them in a sexual way." Now let me get this, straight, the military made separate quarters for straight men and women, because "they look at each other in a sexual way". Thereby protecting them from each other, and preventing a "hostile environment". OK, I see, we are not in charge of our inate carnal cravings. So the solution to lessen everyone's angst and fear from "I am being viewed as a sexual object", is to create 4 separate living quarters ( men, women,gay,straight)? That sounds like a step alright, a step backwards. This idea sounds just like when blacks served in WW2. Separate but equal. I am certain if allowed, many in the military would like to see this still be in place. Hostile my astors! So here is my solution: I decree that we enact the DADTCLS. That is " Don't Ask Don't Tell Chosen Life Style" This would apply to every service person in the military. This way no-one would know what anyone's hosen lifestyle is, then we wouldn't have to go through all that cost and start creating all these separate living quarters. Not to mention not looking at anyone in a sexual "way". For the record, I don't by the thought about a hostile" environment with the repeal of DADT. Just ask all the women in the military who live in separate quarters from men, and all the sexual harassment that has occurred in our military. Even with the separate sleep quarters, the "hostile" environment still continues today. Just more thoughts to keep the pot brewing...........

September 10 2010 at 3:07 PM Report abuse -7 rate up rate down Reply
Barry

Surprise, suprise, girls and guys!! Gays and Lesbians have ALWAYS been in the military. Whether or not they are 'out' or not is neither here nor there. So lets say this soldier is right along side another soldier defending the USA...and they are both kickin some butt and takin names...they win the battle and go out and have a couple of beers. Is one to assume that both soldiers are straight? Gay? Bi? It matters not a whit! Both are SOLDIERS...defending our nation to the best of their ability. WHO gives a spit if one of them is gay or lesbian or bisexual? Sexuality is NOT something that really matters in wars. It is the conviction to do the right thing. That is just MY humble opinion. Good grief! We have SO many more important things to worry about! There are gays already in the military. They always have been, and they always will be. Get over it already!!!

September 10 2010 at 2:53 PM Report abuse -5 rate up rate down Reply
Sieben

The military doesn't need homosexuals,lesbians in their mist

September 10 2010 at 1:52 PM Report abuse +4 rate up rate down Reply
2 replies to Sieben's comment
vobox3343

What's wrong with having more smart people in the armed forces? I've only heard of straight men in the armed forces raping women, removing limbs from dead enemy soldiers.

September 10 2010 at 2:15 PM Report abuse -11 rate up rate down Reply
ufoolswerewarned

African Americans have served in all of our country's major wars, starting with the Revolutionary War. They were in the Civil War, the Indian Wars, the Spanish-American War, World War I, World War II, Korea, Vietnam, etc, etc.

September 10 2010 at 3:10 PM Report abuse +10 rate up rate down Reply
tychristopher76

As a response to THIRDHERDNERD, and as a openly gay man, I would have to agree. Maybe if we decide to allow our gay soldiers to be out in the military, this may cause a rift between them and those who may not be comfortable around them, this in turn can contribute to a disconnect as a team and as a military force whole. This may seem to be "segregation" to many gay or straight, however, I think moving slowly to a more progressive state of mind will ensure that in the future a more drastic allowance of openly gay soldiers would be possible. I believe in baby steps, and I believe a baby step in this way will contribute to an evolved state of mind for future combatants. On the other hand, segregating into "straight" and "gay" units also brings other ramifications. Will the "gay" squad be more of a target for certain religious extremists that we fight in other countries? Will this be a foundation for separation within the military? Breaking a uniform code of all for one and one for all?..This is a very sticky and potentially volatile situation and I recommend all in government who are in charge of making these decisions weighs all the options both good and bad, very heavily. And to ask themselves, not is this the politically correct thing to do, or is this the progressive thing to do, but is this whats best for our entire military unit as a whole.

September 10 2010 at 11:58 AM Report abuse +9 rate up rate down Reply
1 reply to tychristopher76's comment
ufoolswerewarned

I agree. Its too bad that some want to put their politically correct agendas above whats best for the military.

September 10 2010 at 1:10 PM Report abuse +14 rate up rate down Reply
Ric

Excellent DADT resulted in the Armed Forces discharging my brother and kept another very talented family member from joining. America lost not; not my family.

September 10 2010 at 11:26 AM Report abuse -3 rate up rate down Reply
thirdherdnerd

DADT is good policy not "may be bad" as concluded above. As a vet I can tell you homosexuals have always served in the armed forces and always will without regard to DADT policy. Serving in the open or being able to tell if you will is not about wanting to stay in the military it is about wanting to force others to accept your chosen lifestyle whether they want to or not. Males and females are separated in the military because they see each other as sexual beings and neither women or men should have to serve in close quarters with someone who looks at them in a sexual way. That applies to homosexuals also through DADT. If DADT is abandoned then the separation will have to be male, female, homosexual male and homosexual female to avoid putting those who do not want to be in the middle of this argument in a hostile environment.

September 10 2010 at 11:10 AM Report abuse +5 rate up rate down Reply
bildaws

The main problem with the U.S. judicial system is that judges’ enterperate laws rather that reading and understanding the English language. Some laws are written ambiguously, in fact most are, and that is a problem of lawmakers. However ambiguity aside, judges’ should rule upon the letter of the law not read something into it that isn't there. As far as I know there is nothing in the Constitution about letting gays in the military. I have not read nor do I understand the law regarding "Don't ask, don't tell". I don't even know if "Don't ask, don"t tell is a law or just a policy. Bottom line is, “gays in the military” is just plain WRONG, it's no different that letting males into a girls shower. I was in the Marines in the 1960's, if some guy was noticed "checking out" another Marine, he got blanket parties until he got a discharge.

September 10 2010 at 11:08 AM Report abuse +5 rate up rate down Reply
2 replies to bildaws's comment
sardoniusnemo

There is no Constitutional right to be in the military.

September 10 2010 at 12:44 PM Report abuse +12 rate up rate down Reply
bigdudesf

Agreed - if someone is checking someone else out in the shower - out they go. But - what about all the gay men/women who AREN"T checking others out in the shower, who are just there, day in and day out, doing their duty, able to be adult and mature (yes, even in the shower). As a gay man who was in the military for years, it is not requred that one be gay to "check men out" - nor does it have to happen ever. Your comment is about your fear about what a gay man MIGHT do - based on your own behaviors and patterns of what YOU would do.

September 10 2010 at 1:33 PM Report abuse rate up rate down Reply

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