by Rex Wockner
RIVERSIDE, Calif. – U.S. District Judge Virginia Phillips in Riverside, Calif., struck down the military's "Don't Ask, Don't Tell" ban on open gays in the military Sept. 9.
Phillips found that the ban violates the U.S. Constitution's guarantees of free speech and due process under the First and Fifth Amendments.
"The 'Don't Ask, Don't Tell' Act infringes the fundamental rights of United States servicemembers in many ways," Phillips wrote in her 86-page opinion. "The act denies homosexuals serving in the Armed Forces the right to enjoy 'intimate conduct' in their personal relationships. The act denies them the right to speak about their loved ones while serving their country in uniform; it punishes them with discharge for writing a personal letter, in a foreign language, to a person of the same sex with whom they shared an intimate relationship before entering military service; it discharges them for including information in a personal communication from which an unauthorized reader might discern their homosexuality. In order to justify the encroachment on these rights, Defendants faced the burden at trial of showing the 'Don't Ask, Don't Tell' Act was necessary to significantly further the government's important interests in military readiness and unit cohesion. Defendants failed to meet that burden."
Phillips said the government's contention that letting gays be open in the military harms its functioning is fully undermined by the fact that the military delays discharge of gays and lesbians who violate DADT until they return from combat deployment.
The six-year-old case, brought by the gay group Log Cabin Republicans, was heard without a jury in July.
Phillips said she will issue a permanent injunction prohibiting the military from enforcing "Don't Ask, Don't Tell." She gave LCR until Sept. 16 to submit proposed language for the injunction and gave the U.S. government until Sept. 23 to respond to LCR's submission.
"She could, at that point, stay the injunction pending an appeal or, as Judge (Vaughn) Walker did (in the federal Prop. 8 case), she could deny such a stay but grant a temporary stay to allow the government to seek a stay pending an appeal from the Ninth Circuit," said Jon Davidson, legal director of Lambda Legal.
If no stay is issued, it is unclear whether Phillips' ruling would take effect nationwide or just in California's Central District of the federal courts.
"This is an historic moment and an historic ruling for the gay military community," said Servicemembers United Executive Director Alexander Nicholson, who was kicked out of the Army under DADT. "As the only named injured party in this case, I am exceedingly proud to have been able to represent all who have been impacted and had their lives ruined by this blatantly unconstitutional policy. We are finally on our way to vindication."
Gay activists responded to the ruling by calling on President Barack Obama to cease enforcement of DADT immediately and demanding that the U.S. Justice Department decline to appeal Phillips' decision.
Pressure also continued to be placed on Senate Majority Leader Harry Reid, who announced Sept. 13 that the National Defense Authorization Act, which contains a provision to repeal DADT, will be up for debate the week of Sept. 20. A Senate-focused DADT lobby day, nicknamed "The Final Assault," is scheduled to take place Sept. 16 in Washington, D.C., Servicemembers United announced.
