Federal Circuit Judge Overturns Don't Ask, Don't Tell Act

Virginia A. Phillips, United States District Judge of the 9th Circuit, overturned the Don't Ask, Don't Tell (DADT) Act in a 9 September 2010 order.  The plaintiff is the Log Cabin Republicans.  I have read her memorandum opinion and it is sound and well-written.  It makes very interesting reading in fact, at least that part that follows the issues of the standing of the plaintiff and the members it represents.  One can readily understand why Admiral Mike Mullen, the Chairman of the Joint Chiefs of Staff, said on 2 February 2010 that he would like to see this DADT policy changed.

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:

1. They have engaged in, or attempted to engage in, or solicited another to engage in a homosexual act or acts.
2. They have stated they are a homosexual or bisexual, or words to that effect.
3. They have married or attempted to marry a person of "the same biological sex."

 The Log Cabin Republicans challenged the constitutionality of this law on two grounds:

1. 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."
2. It violates the First Amendment rights of freedom of speech, to peaceably assemble, and to petition the government with grievances.

Considering the plaintiff's first claim of a violation of due process rights, the judge noted that Witt v. Dept. of Air Force, a Ninth Circuit decision in 2008, ruled that DADT constitutes an intrusion "upon the personal and private lives of homosexuals, in a manner that implicates the rights identified in Lawrence [v. Texas], and is subject to heightened scrutiny."  Therefore, it must

1. Advance an important governmental interest.
2. The intrusion must significantly further that interest.
3. The intrusion must be necessary to further that interest.

Witt v. Dept. of Air Force decided the DADT act did advance an important governmental interest.  This left it to Judge Phillips to decide if the intrusion significantly furthered that interest and if it was necessary.

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.

Consequently, Judge Phillips ruled that DADT did not significantly further the important government interest and that if was not necessary.  Thus, it did violate the due process rights 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.