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Federal Judge Declares DADT Unconstitutional

THE DAILY KOS
by shayera
Thu Sep 09, 2010 at 06:45:50 PM PDT

I haven't seen this news reported here already, but the Los Angeles Times is reporting that a federal judge has declared DADT unconstitutional.

The story broke at the top of the hour and some information has come since then.

The story is here at: Judge declares U.S. military's 'don't ask, don't tell' policy openly banning gay service members unconstitutional [updated]

This ruling is in the case brought by the Log Cabin Republicans. U.S. District Judge Virginia Phillips is the judge in the case.

As the article says, this ruling comes just a month after Judge Walker's ruling regarding Prop 8 here in California.

many thanks to jpmassar for the link to the pdf of the decision: Case 2:04-cv-08425-VAP-E Document 232 It's 86 pages and it's a pdf.

jpmassar (who would have written a much better diary than I) has some relevant quotes from the decision below. I'm going to add them here in the body, But you should go give him lot of mojo for finding them.


Plaintiff has proven that the Act captures within its overreaching grasp such activities as private correspondence betweenservicemembers and their family members and friends, and conversations between servicemembers about their daily off-duty activities. Plaintiff has proven that the Act prevents servicemembers from reporting violations of military ethical and conduct codes, even in outrageous instances, for fear of retaliatory discharge.

[***]

General Powell also rejected attempts to draw parallels between exclusion of homosexuals and historical exclusion of African-Americans, because "skin color is a benign nonbehavioral characteristic, while sexual orientation is perhaps the most profound of human behavioral characteristics."

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Citing a Pentagon study, he ((Dr. Korb)) opined that for every person discharged after ten years of service, six new servicemembers would need to be recruited to recover the level of experience lost by that discharge.

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LCR also produced evidence demonstrating that Defendants routinely delayed the discharge of servicemembers suspected of violating the Act's provisions until after they had completed their overseas deployments. In other words, if Defendants began an investigation of a servicemember suspected of violating the Act, the investigation would be suspended if the subject received deployment orders; not until he or she returned from combat – assuming this occurred, of course – would the investigation be completed and the servicemember discharged if found to have violated the Act.

[***]

This evidence, in particular, directly undermines any contention that the Act furthers the Government's purpose of military readiness, as it shows Defendants continue to deploy gay and lesbian members of the military into combat, waiting until they have returned before resolving the charges arising out of the suspected homosexual conduct. 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. It defies logic that the purposes of the Act could be served by suspending the investigation during overseas deployments, only to discharge servicemember upon his or her return to a non-combat station.

[***]

Taken as a whole, the evidence introduced at trial shows that the effect of the Act has been, not to advance the Government's interests of military readiness and unit cohesion, much less to do so significantly, but to harm that interest.

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The Don't Ask, Don't Tell Act infringes the fundamental rights of United States servicemembers in many ways, some described above. 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. Thus, Plaintiff, on behalf of its members, is entitled to judgment in its favor on the first claim in its First Amended Complaint for violation of the substantive due process rights guaranteed under the Fifth Amendment.
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