Judge Rules Military Policy Unconstitutional

Special Report - September 13, 2010
On September 8, a federal judge in California ruled as unconstitutional the U.S. military’s “Don’t Ask, Don’t Tell” (DADT) policy prohibiting persons who actively engage in homosexual acts from serving in the military. U.S. District Court Judge Virginia A. Phillips in California overturned the policy on the grounds that it violates the First and Fifth Amendments of the U.S. Constitution. Judge Phillips’ 85-page decision found the policy violates the free speech, open association, and due process rights of homosexuals. The decision went on to assert that the policy has a “direct and deleterious effect” on the military by hindering recruitment efforts and requiring well-trained critical service members to be discharged.

Under DADT, the military may discharge service members who “engaged in, attempted to engage in, or solicited another to engage in a homosexual act,” or who “stated that he or she is a homosexual or bisexual,” or who marries or attempts to marry a person “of the same biological sex.” The policy was implemented under President Clinton based on Congressional findings and Joint Chiefs of Staff Colin Powell’s concerns that “military life is fundamentally different from civilian life;” “[s]uccess in combat requires military units that are characterized by high morale, good order and discipline, and unit cohesion;” and “the presence in the [A]rmed [F]orces of persons who demonstrate a propensity of intent to engage in homosexual acts would create an unacceptable risk to the high standards of morale, good order and discipline and unit cohesion that are the essence of military capability.”

During the July hearings in the case, the plaintiffs called several expert witnesses and provided data evidence that the Act “harms rather than furthers the Government’s interest in military readiness” by “impeding the efforts to recruit and retain an all-volunteer military force, … by causing the discharge of otherwise qualified service members with critical skills … by contributing to the necessity for the Armed Forces to permit enlistment through increased use of the ‘moral waiver’ policy and lower education and physical fitness standards.” The Federal Government’s defense lacked any witness testimony, and instead focused on the legislative history of the Act as a defense of the policy’s necessity “to protect unit cohesion and privacy.”

In her decision, Judge Phillips noted that “The Don’t Ask, Don’t Tell Act infringes the fundamental rights of United States service members in many ways” that cannot be justified unless proven “necessary to significantly further the Government’s important interests in military readiness and unit cohesion.” Her decision found that, “The Act Does Not Significantly Further the Government’s Interests in Military Readiness or Unit Cohesion.” In it, she referenced President Obama as Commander-in-Chief stating on June 29, 2009 that the policy “weakens our national security.” Additionally, the Government’s lack of witnesses, an “affirmative case,” or any evidence beyond “the legislative history of the Act” was noted in the Judge’s decision.

Judge Phillips intends to issue an injunction to halt implementation of the policy in the next week. The federal government will then have a week to respond. Government lawyers argue that Phillips lacks the judicial authority to issue a nationwide injunction. The U.S. Department of Justice has not decided whether to appeal the decision.

The military is currently reviewing the DADT policy and considering a possible repeal. Study results are expected in December. In May, the U.S. House voted to repeal the policy. The Senate is expected to consider the issue this year.

Related article:
Court Refuses "Don't Ask, Don't Tell" Case - June 8, 2009

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