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‘Don’t ask, don’t tell’ called unconstitutional

Judge declares policy violates 1st Amendment

By John Schwartz
New York Times / September 10, 2010

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NEW YORK — The “don’t ask, don’t tell’’ policy toward gay members of the military is unconstitutional, a federal judge in California ruled yesterday.

US District Judge Virginia A. Phillips of the Central District of California struck down the rule in an opinion issued late in the day. The policy was signed into law in 1993 as a compromise that would allow gays and lesbians to serve in the military.

The rule limits the military’s ability to ask about the sexual orientation of service members and allows homosexuals to serve as long as they do not disclose their orientation and do not engage in homosexual acts.

The plaintiffs challenged the law under the Fifth and First amendments to the Constitution, and Phillips agreed.

“The Don’t Ask, Don’t Tell Act infringes the fundamental rights of United States service members in many ways,’’ she wrote. “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.’’

The rule, she wrote in an 86-page opinion, does not promote military readiness — and, in fact, has a “direct and deleterious effect’’ on the armed services.

The decision is among a number of recent legal rulings that have suggested a growing judicial skepticism about measures that discriminate against homosexuals, including rulings against California’s ban on same-sex marriage and a Massachusetts decision striking down the a federal law barring the federal government from recognizing same-sex marriage.

The decision will not change the policy right away; the judge called for the plaintiffs to submit a proposed injunction limiting the law by Sept.16, and invited defendants to submit their objections to the plan a week after that. A decision would follow, and even then would probably be stayed pending appeals.

The suit was brought by Log Cabin Republicans, a conservative gay organization. The group’s executive director, R. Clarke Cooper, said he was “delighted’’ with the ruling, which he called “not just a win for Log Cabin Republican service members, but all American service members.’’

Dan Woods, lead lawyer for the plaintiffs, said the decision was “a major victory in the fight for equality and means that military service will be available to all Americans, regardless of their sexual orientation.’’

Those who would have preserved the rule, however, were critical of the decision. “It is hard to believe that a District Court-level judge in California knows more about what impacts military readiness than the service chiefs who are all on record saying the law on homosexuality in the military should not be changed,’’ said Tony Perkins, the president of the conservative Family Research Council.

As a candidate for president, Senator Barack Obama vowed to end “don’t ask, don’t tell.’’ Once elected, he remained critical of the bill but he said it was the role of Congress to change the law; the Justice Department has continued to defend the law in court. In February, Defense Secretary Robert M. Gates and Admiral Mike Mullen, the chairman of the Joint Chiefs of Staff, asked Congress to allow gays to serve openly by repealing the law. The House has voted for repeal, but the Senate has not yet acted.

The case, which was heard in July, involved testimony from six military officers who had been discharged because of the policy. One, Michael Almy, was serving his third tour of duty in Iraq as an Air Force major when someone using his computer found at least one message to a man discussing homosexual conduct. Almy testified that if the act were repealed, he “wouldn’t hesitate’’ to rejoin the service.

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