Thursday, September 9, 2010

Don't Ask Don't Tell Unconstitutional: California Federal Judge Rules

In an 86 page opinion issued today, federal district judge Virginia Phillips, Central District of California, ruled that the military's "don't ask, don't tell" policy regulating homosexuality is unconstitutional under the Fifth Amendment's due process clause and under the First Amendment. 

The don't ask, don't tell policy, codified at 10 U.S.C. ยง 654 requires that a member of the Armed Forces "shall be separated" from military service under one or more of the following circumstances.  421px-Dontaskdonttellcredible

  • First, a servicemember shall be discharged if he or she "has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts." 
  • Second, a servicemember shall be discharged if he or she "has stated that he or she is a homosexual or bisexual, or words to that effect . . . .
  • Finally, a servicemember shall be discharged if he or she has married or attempted to marry a person "known to be of the same biological sex."
It has been a controversial policy, with a recent attempt by Senator Lieberman to "repeal" it, previous litigation including a denial of a petition for a writ of certiorari by the Supreme Court, special impact on women in the military, and unfulfilled expectations that Obama would advocate for repeal. 

In Judge Phillips' opinion in Log Cabin Republicans v. United States, she found that the plaintiff organization, Log Cabin Republicans, met the standing requirements.  Judge Phillips also repeatedly noted that "Defendants called no witnesses, put on no affirmative case, and only entered into evidence the legislative history of the Act."   The judge carefully recited the extensive testimony from the Plaintiff. 

Interestingly, the judge found not only that the government's articulated interest in military readiness and unit cohesion was not served by the policy, but that the policy actually undermined the government interests:

Taken as a whole, the evidence introduced at trial shows that the effect of the Act has been, not to advance the Government's interests of military readiness and unit cohesion, much less to do so significantly, but to harm that interest. The testimony demonstrated that since its enactment in 1993, the Act has harmed efforts of the all-volunteer military to recruit during wartime. The Act has caused the discharge of servicemembers in occupations identified as "critical" by the military, including medical professionals and Arabic, Korean, and Farsi linguists. At the same time that the Act has caused the discharge of over 13,000 members of the military, including hundreds in critical occupations, the shortage of troops has caused the military to permit enlistment of those who earlier would have been denied entry because of their criminal records, their lack of education, or their lack of physical fitness.

In her consideration of the substantive due process claim, the judge articulates the standard as a heightened one appropriate to government action "implicating fundamental rights."  She writes that the United States Supreme Court's decision in Lawrence v. Texas, recognized the fundamental right to "an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct."

On the First Amendment claim, the judge found that don't ask, don't tell is a content-based restriction on speech: it "distinguishes between speech regarding sexual orientation, and inevitably, family relationships and daily activities, by and about gay and lesbian servicemembers, which is banned, and speech on those subjects by and about heterosexual servicemembers, which is permitted."  Notwithstanding this conclusion, she notes that military speech is subject to a lesser standard: it must ""restrict speech no more than is reasonably necessary to protect the substantial government interest."  She concluded that the don't ask, don't tell policy are broader than necessary to protect the government's interest, reasoning that the policy reaches private e-mail messages, private letters in a "foreign language." 

The judge has given the Plaintiff until September 16 to submit a proposed judgment with a permanent injunction.  It may be a safe assumption that the government will request a stay.


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Congressional Authority, Current Affairs, Fifth Amendment, First Amendment, Opinion Analysis, Sexual Orientation, Sexuality, War Powers | Permalink

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