The court decision should have been much simpler than it was because of the very convoluted reasoning that precedent and excessive governmental power has created over the last hundred years of U.S. court decisions. This is also a result of the poor understanding that Americans have of their equal, sovereign individual rights to life, liberty, and the pursuit of happiness. That broad statement of our individual rights covers many more specific rights, many of which are not recognized explicitly in our Bill of Rights. Our courts sometimes recognize these non-explicit rights, but they have to work very hard to do so. There are also some special deferences given to the military which needed to be addressed in this ruling.
The DADT Act of 1993 requires the discharge of military personnel if any of the following applies:
- They have engaged in, or attempted to engage in, or solicited another to engage in a homosexual act or acts.
- They have stated they are a homosexual or bisexual, or words to that effect.
- They have married or attempted to marry a person of "the same biological sex."
- It violates its members' substantive due process rights, which under the Supreme Court decision on Lawrence v. Texas includes rights associated with "autonomy of self, that includes freedom of thought, belief, expression, and certain intimate contact."
- It violates the First Amendment rights of freedom of speech, to peaceably assemble, and to petition the government with grievances.
- Advance an important governmental interest.
- The intrusion must significantly further that interest.
- The intrusion must be necessary to further that interest.
One of the more interesting points the Log Cabin Republicans made was that the military "routinely delayed the discharge of servicemembers suspected of violating the Act's provisions until after they had completed their overseas deployments." This even occurred when orders for deployment were received while an investigation was being considered. This evidence "directly undermines any contention that the Act furthers the Government's purpose of military readiness." "If the warrior's suspected violation of the Act created a threat to military readiness, to unit cohesion, or to any of the other important Government objectives, it follows that Defendants would not deploy him or her to combat before resolving the investigation."
The Judge noted that the Act:
- Impeded efforts to recruit an all-volunteer force.
- Caused the discharge of otherwise qualified servicemembers with critical skills.
- Made it necessary to lower moral, educational, and fitness standards.
- It hurt unit cohesion and morale by discharging well-trained and highly respected servicemembers.
- Military housing provides sufficient privacy protection of servicemembers.
On the issue of the First Amendment rights violation claim by the Log Cabin Republicans, the judge noted again that Lawrence v. Texas recognized the right of expression was violated by the Texas law on sodomy. After allowing that the military does not have to meet the same level of concern for freedom of speech as has to be met for civilians, the judge concluded that the second reason for discharge, a statement that implies a servicemember is homosexual or bisexual or something similar, is an unnecessary violation of their freedom of expression and of the First Amendment rights as claimed by the Plaintiff.
It is about time a court has made a ruling to eliminate the egregiously wrong Don't Ask, Don't Tell policy. One would have thought that it would long have been obvious to everyone that this policy was a terrible and unnecessary violation of our equal, sovereign individual rights. Judge Virginia Phillips has performed her country a valuable service.