U.S. District Judge Virginia A. Phillips in California has found the military’s “don’t ask, don’t tell” policy to be unconstitutional under the 1st Amendment and due process clause. She has informed the Obama Administration, which is defending the policy, that she intends to issue an injunction.
While President Obama said on the campaign trail that he would get rid of DADT, he has yet to actually do it despite recent assurances. In the meantime, the Justice Department has been quietly fighting to preserve the policy in court.
The Obama Administration argued that the inclusion of gays and lesbians in the military has a “direct and deleterious effect” on the armed services.
Phillips issued an 85-page ruling that shredded such arguments — noting that the military has allowed felons to serve but not gay citizens. She refused (as is often the case with federal judges) to simply defer to the military’s conclusory statements on the impact on military readiness and morale.
The Obama Administration appeared almost comically conflicted in court as it fought to keep gays out of the military despite the President’s statements to the contrary to the public. The court cited this particular gem of a quote:
President Obama, the Commander-in-Chief of the Armed Forces, stated on June 29, 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.
The Justice Department notably did not put on an affirmative defense in the case while arguing that DADT should be upheld. While the Justice Department opted to largely rely on the law and its findings, it still appeared in defense of the law. The result was arguing for a law on national security grounds while the President was saying it was not needed for national security.
The Court held on due process the following:
Thus, the evidence at trial demonstrated that the Act does not further significantly the Government’s important interests in military readiness or unit cohesion, nor is it necessary to further those interests. Defendants’ discharge of homosexual servicemembers pursuant to the Act not only has declined precipitously since the United States began combat in Afghanistan in 2001, but Defendants also delay individual enforcement of the Act while a servicemember is deployed in a combat zone. 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. The abrupt and marked decline — 50% from 2001 to 2002 and steadily thereafter — in Defendants’ enforcement of the Act following the onset of combat in Afghanistan and Iraq, and Defendants’ practice of delaying investigation and discharge until after combat deployment, demonstrate that the Act is not necessary to further the Government’s interest in military readiness.
In summary, Defendants have failed to satisfy their burden under the Witt standard. They have not shown the Don’t Ask, Don’t Tell Policy “significantly furthers” the Government’s interests nor that it is “necessary” in order to achieve those goals.
On the first amendment, the Court found the DADT to be a content-based law infringing on free speech, noting an array of restrictions:
In other words, all of these examples demonstrate that the Act’s restrictions on speech not only are broader than reasonably necessary to protect the Government’s substantial interests, but also actually serve to impede military readiness and unit cohesion rather than further these goals.
Many of the lay witnesses also spoke of the chilling effect the Act had on their ability to bring violations of military policy or codes of conduct to the attention of the proper authorities. Joseph Rocha, eighteen years old and stationed in Bahrain, felt restrained from complaining about the extreme harassment and hazing he suffered because he feared that he would be targeted for investigation under the Act if he did so. (Trial Tr. 488:20-489:14, July 15, 2010.) In fact, his fear was so great that he initially refused to answer the questions of an investigating officer. (Trial Tr. 519:16-510:10-15, July 15, 2010.) John Nicholson and Anthony Loverde also testified about a similar chilling effect on their speech when [*118] overhearing or being subjected to homophobic slurs or taunts. (Trial Tr. 1138:1-1142:14, 1143:2-24, July 20, 2010 (Nicholson), Trial Tr. 1364:16-1365:25, July 21, 2010 (Loverde).)
The Act prevents servicemembers from openly joining organizations such as the plaintiff in this lawsuit that seek to change the military’s policy on gay and lesbian servicemembers; in other words, it prevents them from petitioning the Government for redress of grievances. John Doe, for example, feared retaliation and dismissal if he joined the Log Cabin Republicans under his true name or testified during trial; thus, he was forced to use a pseudonym and to forgo testifying during trial. (Ex. 38 [Doc Decl.] PP 6-8; see Trial Tr. 88:19-90:15, July 13, 2010; 708:21-709:4, July 16, 2010.)
Furthermore, as discussed above, the Act punishes servicemembers with discharge for writing a private letter, in a foreign language, to a person of the same sex with whom they shared an intimate relationship before volunteering for military service. It subjects them to discharge for writing private e-mail messages, in a manner otherwise approved, to friends or family members, if those communications might lead the (unauthorized) reader to discern the writer’s sexual orientation. These consequences demonstrate that the Act’s restrictions on speech are broader than reasonably necessary to protect the Government’s interest. Moreover, the Act’s restrictions on speech lead to the discharge of servicemembers with qualifications in critically-needed occupations, such as foreign language fluency and information technology. The net effect of these discharges, as revealed not only in the testimony of the lay witnesses but also of the experts who testified and Defendants’ own admissions regarding the numbers of servicemembers discharged and the costs of recruiting and maintaining an all-volunteer military force, compel the conclusion that the Act restricts speech more than reasonably necessary to protect the Government’s interests.
The speech holding is probably more vulnerable than the due process holding since courts have routinely allowed restrictions on speech rights in the military. However, the decision will put the Administration in a more difficult position if it decides to appeal. The Justice Department seemed to struggle at trial to defend the law but not be seen as fighting too hard. It did not present an affirmative defense but still argued that military readiness demanded that DADT be upheld. Now it would have to take the matter on appeal — a move that would further anger gays and lesbians over the failure of Obama to make good on his promise. The Administration is likely to want to wait on the appeal but it will have to be filed as a notice relatively soon. With the November election approaching and polls falling, the Administration may not want to make DADT a prominent issue in addition to same-sex marriage, illegal immigration etc.
Source: LA Times