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
I think FF LEO inadvertently had an idea that could save the lives of many of our soldiers fighting in largely Muslim countries. If we equipped ALL of our Soldiers and Marines in combat with “pink helmets with rainbow-colored peacock feathers affixed”, I think the confusion, consternation, and terror in the enemy ranks would cause them to run for their lives.
FF Leo,
You ole heterosexual, mildly homophobic charmer–I was a missin you and yer comments as well as yer music videos here at the Turley Blawg this summer. I heerd ya was hot in Arizona. I assumed you was hot cuz o’ the high temperatures. But maybe there was another kind a heat keepin ya away from yer computer???
😉
Jonathan,
I just read this blog post about the recent announcement of “Don’t Ask, Don’t Tell” being ruled unconstitutional in California. I have to agree when you prelude to President Obama’s administration being stuck in a tight spot with this issue clicking at the White House’s heels around mid-terms. Regardless of “infringing” or not, this issue is something the administration needs to address. Here is a video that relates to your blog post: http://bit.ly/dlqrP1.
Like your blog post, this video shows many different sources to provide the overall story. I believe videos from Newsy may benefit you in the future by giving you extra content and visual aid to your blog. I know you’ve embedded videos in previous blogs, and I would like to ask if you’re interested in embedding more videos including Newsy videos? Take a look at the website: http://www.newsy.com, and see if what you think about the website and if there’s anymore videos you’d like to post to your blog.
I’d love to continue speaking with you about embedding videos.
Take care,
Daniel
Ms. EM,
I think the reason “Dudes Tell” is part of what Mike S. was talking about (of course, your woman’s intuition–and that of others here–knew that).
Moreover, of course, I realized that *you* certainly did not miss *me*–the guy–but just the time I spent a’ findin’ relevant videos and the fact that we both simultaneously came up with a rare, Black n’ White Susie Snowflake video (that is why I do not use my real name, I mean, if that ever got out…)
Here I was thinking all these years that DADT stood for Dames Acquiesce Dudes Tell!
**********
FF Leo,
I’s been missin’ yer music videos!
Blouise,
I missed you and others here, as well. I like this site so I can keep up on what you liberals are thinking.
I have relatives and a vacation home in Colorado where I spent a few days; however, I was a’ losin’ my tan and the temps dropped to freezing at night so I had to get back to my sun and warm temperatures. Lizards are poikilothermic–donchano…
Ha! (regarding your “get it” comment)
And who could not be very pleased to see Mike Spindell posting more frequently.
Mike S.,
I’ve only had one hero conquer my heart–and I met him when I was just fifteen. I’ve been happily married to my hero for forty-one years!
Mike S.,
… a dangerous bad boy! (referencing your racing days)
… if you don’t get it I guarantee you all the women reading, do. 😉
FFLEO,
You get a pass from me. Truth be told my sense of you is that you actually “get” women and so don’t have to play pretend macho games to prove your confident manhood. Most men I’ve known, however, have doubts and fear about their manhood and part of the way they compensate is to be openly disdainful of gay men.
Knowing my inner drives and what floats my boat sexually had me never doubting my masculinity. I’ve had much success with women in my life, but not because I’m any kind of stud. I simply enjoy talking to females, more than males and always felt that if they went to bed with me they were bestowing a prescious gift on me, rather than me being a “conquering hero.”
Obama just held a longer-than-one-hour press conference in which the ruling on DADT wasn’t even mentioned. And as much as John McCain is banging his fist about efforts to repeal DADT legislatively, he’s not offering anything other than a process argument. Listen to the generals, fear the activist court…
I’m really not seeing much of a political downside to just letting this stand, as much as it pains me to think of that as a consideration. Sure, it’s election season, but if the quiet defeat of DOMA by Martha Coakley is at all informative, Republicans just aren’t going to waste their breath on this one.
I think it’s going to stick.
FFLEO,
I believe your statement: “Unless gays in the military demand pink helmets with rainbow-colored peacock feathers affixed, or other outrageous and forceful stipulations, then let them serve their country.” disqualifies you as the resident “homophobe”. 😉 And I believe Mike S. wrote: “is that most afraid of gay people are the same people most afraid of their own gayness.” … the emphasis is mine to help make the point.
As to the other … last night I was out with my girlfriends at a bar and was approached by a man intent on getting to know me. He introduced himself as a retired Marine Sergeant, (name withheld to protect the innocent). I admit to having a soft spot for Marines and Sergeants from any branch so I gave him my name, offered a ” Semper Fi ” and my left hand. All Marine Sergeants know how to accept a lady’s hand and check for a marriage band. He thanked me for “respecting” him and bid me good evening. Had I not been married I would have greatly enjoyed getting to know that Sergeant. At our age (I’m 65), FFLEO, none of us have anything to prove … been there, done that should be our calling card.
I’ve missed you and hope the weather is improving.
Even as the resident “homophobe” herein, ‘Don’t Ask, Don’t Tell’ is clearly unconstitutional, notwithstanding my—mostly moderate—biases against gays. Somehow, others must recognize their biases and get on with the otherwise fair, equal, and legal treatment of other U.S. citizens who deserve to have the same opportunities in life as everyone else within this Nation. Unless gays in the military demand pink helmets with rainbow-colored peacock feathers affixed, or other outrageous and forceful stipulations, then let them serve their country.
Mike S.
I am squarely a straight-as-an-arrow heterosexual male and I disagree with your comment about most people who dislike aspects of the gay standard of life as being “afraid of their own gayness”. My last girlfriend was 30 years younger than I am and I was not trying to “prove” anything.
RIP DADT
I’d match the Spartans against any group of soldiers in history. They were also the officially gayest. My observation about people I’ve known in life is that most afraid of gay people are the same people most afraid of their own gayness.
DADT was unconstitutional on its face and had no factual basis to enforce its claims of harm, other than the blathering, prejudice and fear of a bunch of career bureaucrats masquerading as soldiers.
culheath, it’s the Guv’mint. Bureaucrats have to justify their existence by doing ‘stuff’ whether it is productive or not.
Can someone explain to me please, given the policy intentions and directives of the executive is to repeal DADT, why Justice would put up any fight in court or make any appeal to this decision at all? I don’t understand the waste of time avoiding the inevitable going on here.
rcambell:
“Could we actually be coming out of our virtual mental bomb shelter and have started seeing the self-inflicted damage of thirty years of conservative intimidation?”
We can only hope.
“Don’t Ask, Don’t Tell Policy Found Unconstitutional”
It’s about time!
*****
rcampbell,
I’m not so optimistic as to think we’ve yet emerged from the “virtual mental bomb shelter.”
Don’t Ask Don’t Tell–unconstitutional
AZ Immigration Law–unconstitutional
Prop 8–unconstitutional
Parts of Patriots Act-unconstitutional
NYC community center–recognized as Constitutionally protected
Am I over reading these findings or are we actually seeing the beginnings of a return to normalcy in America justice and constitutional adherence? Have we perhaps at last begun shedding the oppressive cloak of fear laid down by conservatives for lo, these many years? Could we actually be coming out of our virtual mental bomb shelter and have started seeing the self-inflicted damage of thirty years of conservative intimidation? Maybe it’s just gas.
One way or the other the sucka gonna be in….it is just the epitome of the government works…….