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.

The Missouri Domestic Terrorist Report

The Missouri Information Analysis Center (MIAC) issued a report in response to a request by the Department of Homeland Security in which they profiled as possible terrorists those individuals who were concerned about taxes, unemployment, illegal immigration, border security, gangs, abortion, gun restrictions, the high cost of living, the IRS, FEMA, and the Federal Reserve.  To this, MIAC added concerns about people who were attracted to gun shows, shortwave radios, action movies, movies with Rambo-like white action heroes, Tom Clancy novels, and Ron Paul, Bob Barr, or Chuck Baldwin.

Americans for Limited Government requested the report under the Missouri Sunshine Law and were told that the state of Missouri only had a draft version of the report, they did not know who had written it, and they had no documentation of the sources used for the report.  The report did directly cite the Southern Poverty Law Center and it lifted some information from the website of the Anti-Defamation League, which was not cited.  These two organizations also played a major role in the highly foolish Department of Homeland Security "rightwing extremism" report of several months ago as well.

Neither report is very reassuring with their inference that agents of the government view the exercise of free speech, use of the press, assembly, and petition of grievances guaranteed in the First Amendment with such suspicion, largely informed by the viewpoint of the far left.  As we can see on college campuses across the nation, where the left enjoys unchallenged power, there is no freedom of speech, of the press, of assembly, or of petition in their docile domains.  We also see the very thin skin of the Obama administration already developing and their frequent put-downs of Fox News and conservative and libertarian radio commentators.  We hear Mark Lloyd, the Diversity Czar on the FCC, seeking taxes and fines to suppress our freedom of speech unless that speech furthers the aims of the left and who openly admires Hugo Chavez's suppression of freedom of speech, press, and assembly in Venezuela.  We hear Anita Dunn, White House Communications Director, telling us she admires greatly and thinks constantly about Mao, who killed tens of millions of dissenters and millions who were not even dissenters, but who he suspected might become dissenters.

It has become clear that the socialist left has declared itself an enemy of our First Amendment rights in addition to many of our other individual rights.  Americans who believe in the Constitution and the sovereign rights of the individual to life, liberty, and the pursuit of happiness must start taking this threat of the socialists and Marxists very seriously.