Don’t Ask, Don’t Tell ruled unconstitutional

By Andy Birkey
Friday, September 10, 2010 at 6:29 am

A California judge ruled Thursday that Don't Ask, Don’t Tell "infringes the fundamental rights of United States servicemembers." Photo: Soldiers Media Center, Flickr

The military’s Don’t Ask, Don’t Tell policy — which bars openly gay men and women from serving in the military — was ruled unconstitutional by a judge in Riverside, Calif., Thursday evening. The suit, brought by the Log Cabin Republicans, argued that the policy violated the First and Fifth Amendments to the U.S. Constitution, and the judge agreed, ordering a permanent injunction against the policy. The Department of Justice has seven days to appeal the ruling.

In a 28-page decision (pdf), U.S. District Court Judge Virginia A. Phillips wrote:

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.

A range of groups, including some that oppose same-sex marriage, hailed the decision.

“Today’s ruling is not just a victory for the LGBT community, but for our military, our security, and for U.S. taxpayers,” Courage Campaign founder Rick Jacobs said. “Asking soldiers to lie about who they are destroys the trust on which an effective fighting force is reliant, and discrimination of any kind undermines the values that generations of Americans–including LGBT Americans–have fought and died to defend. It is our hope that the Senate will act quickly to repeal this failed policy, so that we can avoid a lengthy and costly appeals process, and get on with the business of ensuring all patriotic Americans are able to serve our country with honor and dignity.”

The Log Cabin Republicans filed the lawsuit in Oct. 2004, and it went to trial in July 2010. Executive director R. Clarke Cooper praised the ruling.

“As an American, a veteran and an Army reserve officer, I am proud the court ruled that the arcane Don’t Ask Don’t Tell statute violates the Constitution,” he said. “Today, the ruling is not just a win for Log Cabin Republican servicemembers, but all American servicemembers.”

Chad Griffin of the American Foundation for Equal Rights said:

“Today’s court decision declaring Don’t Ask, Don’t Tell unconstitutional is yet another significant and long-overdue step toward full equality for all Americans. Along with the recent federal court decisions on DOMA and Proposition 8, it is clear that our nation is moving toward the day when every American will be treated equally under the law, as is required by our Constitution.”

Alexander Nicholson, executive director of Servicemembers United and a former U.S. Army interrogator, was the only plaintiff named in the case. He was discharged under Don’t Ask Don’t Tell.

“This is an historic moment and an historic ruling for the gay military community and for the readiness and integrity of our Armed Forces,” he said. “As the only named injured party in this case, I am exceedingly proud to have been able to represent all who have been impacted and had their lives ruined by this blatantly unconstitutional policy. We are finally on our way to vindication.”

Other groups also reacted to the decision. The Human Rights Campaign released this statement:

“Today a federal judge affirmed what the vast majority of the American people know to be true – that it’s time for the discriminatory ‘Don’t Ask, Don’t Tell’ law to be sent to the dustbin of history. With this legal victory in hand, Congress is right now in a perfect position to strengthen our national security by ending a law that has discharged thousands of capable service members. With House passage already secured, the Senate can and should vote in the next few weeks to repeal ‘Don’t Ask, Don’t Tell’ and allow every qualified man and woman the chance to serve with honor.”

And the Stonewall Democrats:

“Today’s Federal court decision calling the Don’t Ask, Don’t Tell policy unconstitutional on grounds that it violates gay military members’ rights to free speech, due process and open association is another nail in the coffin of the policy. We’re glad that the Federal court agrees with President Obama’s position: that Don’t Ask, Don’t Tell needs to come to an end. Our Senators need to hear from their constituents demanding repeal. We also call on Senate Republicans to rise above the obstructionism they’ve been playing at for months and let a vote happen on what the vast majority of Americans want: repeal of DADT.”

And perhaps surprisingly, the National Organization for Marriage, a group opposed to relationship rights for same-sex couples, released these tweets:

“#DADT has nothing to do with the tradition of marriage between a man and a woman and everything to do with citizens’ rights.”

And:

“There is no need to prohibit gays and lesbians from openly serving in the Armed Forces. They should have the opportunity to serve.”

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Comments

46 Comments

Lambo
Comment posted September 10, 2010 @ 7:03 am

I think there’s a typo in your first sentence. The law was ruled unconstitutional, not the lawsuit, correct?


Tim
Comment posted September 10, 2010 @ 9:33 am

This is the third artice in the last few days that Andy Birkey has written related to this subject.

Obviously this media company is not an ‘independent’ source of information. As a 501(c)(3) nonprofit corporation, this media company is funded by individual donors and foundations.

The list of donors includes several gay and lisban organizations, which explains the biased claims they continue to make.
http://tainews.org/donate/

This is not an independent source like the title they use. This is a propaganda machine created with and funded for just that purpose, to sway public opinions that favor the radical gay activists and encourage their agenda to legally enforce their religious ideas on the nation to convert our nation into a theocracy.

It is a sad day for our nation to see this ruling against the better judgement of the public and our military leadership. But this is only one ruling amoung many that have ruled to unhold this policy. This ruling is unlikely to change anything.

Homosexuality is a curable disorder that will clearly weaken our military strength.


Lane
Comment posted September 10, 2010 @ 9:35 am

Re: Mormon Church-backed NOM’s tweet saying “everything to do with citizens’ rights,” it doesn’t make sense given their opposition to same-gender marriage given that even the U.S. Supreme Court has ruled in Loving v. Virginia that marriage is one of the “basic civil rights of man.” The only explanation for this really comes down to religious-fueled animosity towards those who are LGBT.


Lane
Comment posted September 10, 2010 @ 9:40 am

Tim, this informative website is not set up for your trolling pleasure. You could always go elsewhere – and I suspect many of us regular readers will breathe a sigh of relief when you do so that we can have more insightful discussions in the comment area.


Paul Schmelzer
Comment posted September 10, 2010 @ 10:02 am

While you may not like how we present the news, Tim, we hope others do, so I thank you for directing our readers to our funders page, where anyone can make a tax-deductible Paypal donation to help us continue our work.


Paul Schmelzer
Comment posted September 10, 2010 @ 10:04 am

Lambo: Yes, pardon the typo; fixed. Thanks for letting us know.


blueJ
Comment posted September 10, 2010 @ 10:56 am

So NOM approves of openly gay and lesbian military members, but would oppose the state and federal rights and benefits that go to the life partner of deployed hetero soldiers going to the spouses of gay soldiers.


Progressively Queer
Comment posted September 10, 2010 @ 11:01 am

It’s a shame Tim supports the legalization of rape. If he didn’t, everything else he’d say would be credible.


Tim
Comment posted September 10, 2010 @ 12:52 pm

Here is a story for you –

MN psychologist Mike Campion was vindicated when the City of Minneapolis settled with him for $211,000 rather than try to prove in court their false charge that he was an anti-gay bigot.

The City of Minneapolis just admitted its guilt and, in effect, shameful anti-Christian bigotry by settling out of court. Perhaps another lawsuit should be filed against the anti-Christian bigots for discrimination against Mike.

I believe homosexual activist Scott Benson was responsible for getting Mike fired, while working with pro-homosexual city officials.

Anyone not blinded by politically correctness (which unfortunately covers many in the media) can see it danger in the homosexual agenda.

The new civil rights movement is to resist the theocracy that the gay agenda is desperately trying to impose and stand up for intolerance they have for everyones rights.


Tim
Comment posted September 10, 2010 @ 1:29 pm

After further research, it turns out that the judge’s decision in this case was done by default – because the Justice Department (under the Obama administration) failed to defend the law.

Even the ruling judge criticized the Justice Departments efforts to defend the law in her notes.

“The judge, in her 85-page opinion, indicated that the Justice Department lawyers had put forth a weak effort.

“Defendants called no witnesses, put on no affirmative case, and only entered into evidence the legislative history of the act,”

Mark Jumper, a retired Navy chaplain now living in Waukegan, Ill., who is worried about how the reversal will impact chaplains, said he is not surprised by the ruling or by the government’s weak defense.

“This is an example of the disconnect that exists between Washington and the American voter,” he said. “They are making decisions to push a social agenda and not to respect the rule of law.”


Jimmy
Comment posted September 10, 2010 @ 2:02 pm

The military isn’t designed to provide for intimate conduct, it’s for killing and destroying. We are ALL better off letting the military command structure define their own rules regardless of how intolerant they seem to some minority groups.


Dennis
Comment posted September 10, 2010 @ 7:01 pm

Once again the Left has to go to find an activist judge in court to do their bidding because their president was too politically gutless to sign a proclamation to end DADT.

Your messiah is a fraud.


Lane
Comment posted September 10, 2010 @ 7:17 pm

It would not matter who the current sitting president is or how well the Justice Department defends DADT if DADT is inherently unconstitutional. It would have been a matter of time before judicial review caught up to this bad law, and it finally did after 17 long years.

The U.S. military is a vast professional service that not only defends us, but also is the only organization in the world that is capable of responding to catastrophic natural disasters and human crises. It is also subject to civilian control with both subject to the U.S. Constitution – the supreme law of the land.

The President wants DADT repealed. Congress passed the repeal. Efforts are underway to try to overcome the usual Republican obstructionism in the Senate to also repeal this bad law.

Even the latest polls show that 78+% of the Americans including gasp! NOM favors doing away with DADT.

The military will adjust, and ultimately will be much better off with everyone working together pooling their extraordinary talents to serve America.

I am disgusted with the likes of Tim and Jimmy who can’t see the forest for the trees.


Lane
Comment posted September 10, 2010 @ 7:20 pm

At first sight, it does appear that President Obama may be gutless in not issuing an executive order stopping the DADT discharges. Such an executive order still would not repeal the DADT law; only Congress can do that. And what is to prevent the next president from countermanding that executive order?

The DADT repeal is currently being held up by Republican obstructionism in the Senate. This is where the likes of people like Dennis should direct their ire – not the President.


Lane
Comment posted September 10, 2010 @ 7:34 pm

The military is now dealing with the serious issue of many military chaplains who flout strict regulations against evangelism by spreading the Word, trying to get people to change their faith.


Dennis
Comment posted September 10, 2010 @ 9:25 pm

Just curious Lane. Did you ever serve in the military? Because you seem to know so little about it. Jimmy is right. The purpose of the military is to kill people and to destroy things.

At the risk of educating you in things you’d rather not know, let me say that the problem with acceptance with gays in the military is limited to gay men. My experience was that men had zero problem with lesbians. The lesbians I knew were just like one of the guys. We shared the same interests, attitudes, and skills. Lesbians do very well in the military and for the most part, people leave them alone because they pull their own weight and are valued members of the team. I had as much in common with a gay woman as I did with a straight gay.

The gay guys? Not so much. Most were nancy-boys who didn’t get along well with the straight guys. I was in the submarine service. I know of a couple of gay guys who were transferred from the ship after their first patrol because they couldn’t get along with the other guys.

But when they were talking about putting women on submarines, everyone I talked to about it had the same reaction. If they assigned lesbians and they’d be no problems. Submariners are in favor of lesbians at sea.

So the point is, the reason the military is dragging its feet on this and conducting all sorts of surveys and studies is because the reaction to gays in the military from active duty straight people differs depending on whether the gay person is a man or a woman. And obviously you can’t accept one gender and not the other. And therein lies the resistance.


Dave
Comment posted September 10, 2010 @ 10:15 pm

I bet the reason the military is dragging its feet on this and conducting all sorts of surveys and studies is because the reaction has something to do with the fat that all the ones in charge are old farts like Dennis.


Dave
Comment posted September 10, 2010 @ 10:16 pm

Sorry, “with the fact that all the ones in charge…”


Jimmy
Comment posted September 10, 2010 @ 11:01 pm

No, it’s the fact that the rank and file soldiers have enough problems and don’t want the hassle of dealing with your “biological innovation”.


Dave
Comment posted September 11, 2010 @ 1:47 am

But that’s not what the soldiers say themselves, and it’s not my “biological innovation”, wonder bunny.

http://www.boston.com/news/nation/washington/articles/2009/11/10/survey_raises_new_doubts_on_militarys_dont_ask_policy/


Dennis
Comment posted September 11, 2010 @ 8:10 am

Don’t be bitter, Dave. There’s always the public school system.


Dave
Comment posted September 11, 2010 @ 11:24 am

Bitter?

From the article:

“In addition, three-quarters of those surveyed said they felt comfortable or very comfortable in the presence of gays or lesbians,’’ it said.”

It would appear that you may be all hat.


Dennis
Comment posted September 11, 2010 @ 12:35 pm

We shall see, Dave. I can’t wait for it to be announced, frankly.


Zera Lee
Comment posted September 12, 2010 @ 1:21 am

It’s nice to see rule-of-law finally overcoming rule-of-homophobia.


Progressively Queer
Comment posted September 12, 2010 @ 2:38 am

Just because a fork is intended to help me eat food doesn’t mean I can’t simultaneously use it to hold a painting to a wall.

Just because the military is intended to murder and destroy doesn’t mean it can’t provide intimate conduct.


The Confirmed Bachelor
Comment posted September 12, 2010 @ 9:25 am

Props to the NOMA people. I guess they’re trying to bring more people into their fold by implying that “we don’t hate the gays, we just hate gay marriage.”

It’s the same thing. Of course, even when my partner and I are allowed come out of the military closet, there still won’t be any protection against discrimination, or benefits like the ones they give straight people. So ruling DADT unconstitutional is good, but there are still years and years of litigation ahead of us.


Dano
Comment posted September 12, 2010 @ 7:07 pm

I’ve served w/pleanty of gays and big deal. As I’ve told em’ touch me and I’ll make it look like an accident. They just laughed. Though I have watched more than one get stomped for trying to touch another dude, learned the hard way I guess. Did I step in, nope. Why: you only get one warning.


Jimmy
Comment posted September 12, 2010 @ 8:13 pm

“I can’t simultaneously use it to hold a painting to a wall”

That’s OK for your house, but don’t go door to door forcing your idiocy on everyone else.


Lane
Comment posted September 12, 2010 @ 9:35 pm

To follow up with Dano, kindly knock it off with the misogynistic name-calling. You know better than that.

It’s too bad that the servicewomen who got touched, groped, raped and perhaps worse didn’t similarly “stomp” the offending guys including that occasional murder and “toss-that-horny-bastard-overboard-sight-unseen” …

In our modern military, the sexual harassment policy including relevant portions of the UCMJ would be updated and enforced to reflect individuals regardless of gender. Such “stomping” should be appropriately disciplined under the relevant charges of assault, murder and so on.

Besides, what are the homophobic servicemen gonna do when they have to fight/work alongside allied LGBT peers in wartime or during a very serious crisis? Better they get over that homophobia before that happens.


Lane
Comment posted September 12, 2010 @ 9:37 pm

UFF DA!

My admonishment to Dano should have been posted in http://minnesotaindependent.com/64600/advocates-say-anti-bullying-laws-needed-emmer-says-no so that’s what I am gonna do now!!!


Jimmy
Comment posted September 13, 2010 @ 8:42 am

“Better they get over that homophobia before that happens.”

That’s no different than saying the homosexuals should get over their gender confusion “before that happens”.


Beth
Comment posted September 13, 2010 @ 10:01 am

While previous posts indicate that the understanding is that the purpose of the U.S. military is to kill and destroy I would like to set straight that:
(a) It is the intent of Congress to provide an Army that is capable, in conjunction with the other armed forces, of—
(1) preserving the peace and security, and providing for the defense, of the United States, the Commonwealths and possessions, and any areas occupied by the United States;
(2) supporting the national policies;
(3) implementing the national objectives; and
(4) overcoming any nations responsible for aggressive acts that imperil the peace and security of the United States.

With these facts in mind, it can be difficult for one to serve in the military with the goals of preserving peace and security and supporting national policies when such policies are in direct conflict with the Constitution on which our country was founded.

Pick it apart as you will, but being an army wife for the past 14 years makes me feel a little bit entitled to set this particular detail straight.


Dano
Comment posted September 13, 2010 @ 10:03 am

That was NOT me that put that post in. Apparently one of my “friends” got on my computer when I went to the bathroom. I am against DADT and I may be an ass but I DID NOT POST THAT. And that individual is no longer a “friend.” Again I am sorry for that idiots actions.


Lane
Comment posted September 13, 2010 @ 10:08 am

What a lame potshot, Jimmy/Rudy/Raymond … sexual orientation and gender identity are two different things.


Jimmy
Comment posted September 13, 2010 @ 11:20 am

“sexual orientation and gender identity are two different things”

Most people disagree with you. They have biology to back up their opinion so I doubt you’ll ever be able to convince them otherwise no matter how many phobias you invent.


Lane
Comment posted September 13, 2010 @ 11:45 am

Some definitions for Jimmy/Rudy/Raymond:

Gender identity: The sum of those aspects of personal appearance and behavior culturally attributed to masculinity or femininity.

Sexual orientation: The direction of one’s sexual interest toward members of the same, opposite, or both sexes.


Jimmy/Rudy/Raymond
Comment posted September 13, 2010 @ 12:50 pm

“Sexual orientation: The direction of one’s sexual interest toward members of the same, opposite, or both sexes.”

You forgot age group, deceased status, biological domain, species, partner count, pain level, asphyxiation, and on and on.

All of these constitute behaviorial oddities that may be of concern to military commanders. IME their weighting and responses to such are at their whim.


Lane
Comment posted September 13, 2010 @ 3:14 pm

Another lame potshot, Jimmy/Rudy/Raymond.

Sexual orientation is totally separate from those “behavorial oddities” you mentioned such as pedophilia, necrophilia, bestiality, promiscuity and bondage, s/m, erotic asphyxiation and on and on.

A LOT of LGBT do not engage in any of these while some straights do. So what is your point other than to attempt to cast unwarranted evil aspersions on an entire group of people?

Bah.


Jimmy/Rudy/Raymond
Comment posted September 13, 2010 @ 3:50 pm

While the vast majority believes homosexuality is a gender disorder, this need not restrict the pursuit of life and happiness of those afflicted, except in such cases as enrollment in the military where I believe the command structure is REQUIRED to impose whatever regulations they deem necessary to carry out their intended function. Given the importance of that function I suspect many will demand that position with vigor.


Lane
Comment posted September 13, 2010 @ 4:09 pm

“Vast majority”
Really?

“homosexuality is a gender disorder”
Oh Jimmy/Rudy/Raymond, please spare us further displays of your abysmal lack of basic sexual knowledge.

I have every faith in the military’s ability to adjust to the new reality when DADT is finally repealed without the loss of any of its abilites to carry out the varied missions. We did it with women. We did it with blacks. We can do it again.

Whatever regulations that are imposed will still be constrained by the U.S. Constitution which EVERY serviceman is sworn to uphold.


Jimmy/Rudy/Raymond
Comment posted September 13, 2010 @ 5:00 pm

“abysmal lack of basic sexual knowledge”

At least I know where to put my dingdong.

“I have every faith in the military’s ability to adjust”

And like most I don’t have faith in your judgement.

“still be constrained by the U.S. Constitution”

Everyone has some disorder or another. But most people don’t go around demanding theirs be elevated to an “orientation”. In any event, the US Constitution says nothing about imposing your disorder on the military.


Tim
Comment posted September 14, 2010 @ 5:20 pm

I just hope they don’t let blacks or women in the military. Cause that would really screw up the killin’ destroyin’ thing. Mexicans either. Should only be pure white Christian boys in the military, and only from the South. None of them Jews or Mormons, either. Should be a genetic test and then show your Baptism certificate.

Just go back to the 1940′s and ask the military how integration would destroy the military. Just go back to the 1970′s and ask them how women in the military would be a disaster. Just ask the military, they always know best. I’m sure they’re right this time, too.


Dennis
Comment posted September 15, 2010 @ 2:18 pm

Well, you’re wrong Tim.

I doubt if there’s too many black men on active duty who would be agreeing to your comparison to them and gay men. Black men have as much chance of carrying the warrior gene as white men. Same with lesbian women. It’s those nancy-boys who want to be home doing their nails when the shooting starts.

But you’re right about religion. The vast majority of this nation’s warriors are Christian. Kind of ironic that so few men of other religions serve when you consider who and what we’re fighting in the middle east.


Tim
Comment posted September 15, 2010 @ 7:06 pm

The Warrior Gene.

Can you specify, from the human genome project, where this gene is located?

Fascinating what you learn here.


Jimmy/Rudy/Raymond
Comment posted September 16, 2010 @ 3:03 pm

http://en.wikipedia.org/wiki/Monoamine_oxidase_A

(But I have no idea of what link there between the Warrior Gene and gender.)


j
Comment posted September 16, 2010 @ 3:16 pm

soooo…I am not a Nancy Nail painting star gayzing fairy…..but who i love is also a dude..also serves….

We dont want to touch anyone else so get over your self obsessed narcissistic ways…its not about us wanting anything special…just dont want to lose my job over who I sleep with and have coffee with. And while I am chatting it up…I could probably woop most of your asses. WHEN the policy changes, I will not dance down the street, but I cant wait to disprove those sterotypes…and punch you in the teeth while I do it!….hahahaha…JK I am not that violent but daymnnn there are some friggin idiots on here


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