Constitutional Law

Federal judge: 'Don't ask, don't tell' is unconstitutional

By By The Associated Press

LOS ANGELES ? A federal judge yesterday declared the U.S. military's ban on openly gay service members unconstitutional and said she would issue an order to stop the government from enforcing the "don't ask, don't tell" policy nationwide.

U.S. District Judge Virginia Phillips said in her 86-page opinion in Log Cabin Republicans v. Gates that the ban violates the First and Fifth Amendment rights of gays and lesbians.

The "don't ask, don't tell" policy prohibits the military from asking about the sexual orientation of service members. Under the 1993 policy, service men and women who acknowledge being gay or are discovered engaging in homosexual activity, even in the privacy of their own homes off base, are subject to discharge.

In yesterday?s order, Phillips said the policy doesn't help military readiness and instead has a "direct and deleterious effect" on the armed services by hurting recruiting during wartime and requiring the discharge of service members with critical skills and training.

The Log Cabin Republicans, a 19,000-member group that includes current and former military members, filed a lawsuit in 2004 seeking an injunction to stop the ban's enforcement. Phillips said that the group should submit a request for an injunction by Sept. 16 and then the federal government would have a week to respond.

The U.S. Department of Justice can file an appeal but there was no immediate word of that. After-hours e-mails and calls requesting comment from government attorney Paul G. Freeborne and from the Pentagon were not returned in time for this story.

Government lawyers said the judge lacked the authority to issue a nationwide injunction.

The lawsuit was the biggest legal test of the law in recent years and came amid promises by President Barack Obama that he would work to repeal the policy.

The opinion is the second major court decision this summer to come from a California judge and hand a major victory to gay-rights advocates.

In August, U.S. District Judge Vaughn Walker overturned Proposition 8, the ballot proposition that banned gay marriage in California. His ruling is on hold pending appeal.

Dan Woods, the Log Cabin Republicans? attorney, applauded yesterday?s opinion.

"This decision will change the lives of many individuals who only wanted to serve their country bravely," he said.

The Log Cabin Republicans said more than 13,500 service members have been fired since 1994.

Woods argued during the nonjury trial that the policy violated gay military members' First Amendment rights to free speech, association and petition and the Fifth Amendment guarantee of due process.

He said the ban damages the military by forcing it to reject talented people as the country struggles to find recruits in the midst of a war. Lawyers also submitted remarks by Obama stating "don't ask, don't tell" weakens national security.

Woods used Obama's remarks and those of top military commanders as evidence that the policy should be overturned.

The lawsuit is unique because it wasn't based on one individual's complaint about a discharge. Instead it was a broad attack on the policy.

The case moved forward slowly at first because it was assigned to a judge who had health problems and later retired, Woods said. In late 2008, it was reassigned to Phillips and went to trial in July.

Freeborne had argued the policy debate was political and that the issue should be decided by Congress rather than in court.

In his closing arguments he said the plaintiffs were trying to force a federal court to overstep its bounds and halt the policy as it is being debated by federal lawmakers.

The U.S. House voted in May to repeal the policy, and the Senate was expected to address the issue this year.

That makes the trial unnecessary, and the testimony and documentary evidence presented by the Log Cabin Republicans irrelevant, Freeborne said.

"We do not believe the court has the authority to issue a nationwide injunction," he said.

Government attorneys presented only the policy's legislative history in their defense and no witnesses or other evidence.

Six military officers who were discharged under the policy testified during the trial. A decorated Air Force officer testified that he was let go after his peers snooped through his personal e-mail in Iraq.

The officers who participated in the trial were "reacting emotionally because they're so proud that they were able to play a part in making this happen," Woods said after the opinion was released.

"It'll be an interesting decision for our president to decide whether to appeal this case. He's said that 'don't ask, don't tell' weakens national security, and now it's been declared unconstitutional," he said. "If he does appeal, we're going to fight like heck."

Full post as published by First Amendment Center on September 09, 2010 (boomark / email).