Judge Rules DADT Unconstitutional

By admin

Originally published on Advocate.com September 09 2010 8:40 PM ET

In a long-standing lawsuit brought by the Log Cabin Republicans, a federal judge has ruled that the military's "don't ask, don't tell" policy violates the U.S. Constitution.

U.S. district judge Virginia A. Phillips wrote in an 85-page opinion handed down late Thursday that the DADT statute, passed by Congress in 1993, violates both free speech and due process rights of gay service members. She also ruled that LCR is entitled to a permanent injunction against DADT.

"The evidence at trial demonstrated that [DADT] does not further significantly the Government's important interests in military readiness or unit cohesion, nor is it necessary to further those interests," Phillips wrote.

The Justice Department has until a September 23 deadline to submit objections to the court regarding an injunction, which it is likely to do: DOJ attorneys have argued that Phillips does not have the authority to issue a nationwide injunction against the ban on openly gay service members.

DOJ officials have not yet issued a statement on the decision and whether they intend to appeal.







Log Cabin Republicans executive director R. Clarke Cooper called the decision "not just a win for Log Cabin Republican
service members, but for all service members.”

Dan Woods, lead attorney for the Log Cabin Republicans who has worked on the case since it was first filed in 2004, told The Advocate that Judge Phillips's opinion "is going to put a lot of pressure on the Obama administration as to whether they will appeal."

Woods said he would "fight like hell" for the injunction to stand, which would ostensibly allow gays to serve openly in the U.S. military almost immediately.

"We won’t have to wait for a filibuster, for a Senate vote, for the November midterm elections. That was the whole reason to have this trial," Woods said. "I've always thought that the court would be the fastest way to protect the constitutional rights for homosexuals who wanted to conform to military values and serve our country."



DADT repeal advocates warned gay service members currently on active duty not to come out despite the ruling. "DADT remains the law and service members are still being discharged," Servicemembers Legal Defense Network executive director Aubrey Sarvis said. "SLDN is working with clients right now who are in the discharge process."  

The decision in the case, one that received scant attention in the mainstream media when it went to trial during a two-week period in July in Riverside, Calif., comes amid growing concern over whether a vote on DADT repeal in the Senate will take place before lawmakers adjourn for the midterm elections (click here for a recent article on the Senate vote).

It's also one of several court victories for the gay rights movement this year, in stark contrast to legislative inaction on the federal level, where repeal of “don’t ask, don’t tell” remains in doubt and passage of the Employment Non-Discrimination Act is all but dead in the current congressional session. In July a federal judge in Massachusetts ruled unconstitutional a section of the Defense of Marriage Act, followed by the August decision in the Proposition 8 federal case, striking down a 2008 California ballot measure that stripped the right to marry from same-sex couples in the state.

In her opinion Phillips found that DADT not only furthered no governmental interest but that it has also been used to “[prevent] servicemembers from reporting violations of military ethical and conduct codes, even in outrageous instances, for fear of retaliatory discharge.”

Evidence of such abuse abounded at trial. Former petty officer third class Joseph Christopher Rocha, who was ultimately discharged from the Navy, testified in graphic detail about pervasive humiliation he suffered while in training to become an elite military dog handler. A superior had forced him to simulate oral sex on another man while fellow soldiers were paraded into the room to watch. He was also once tied to a chair, force-fed dog food, and put into a kennel filled with dog feces.





In an investigation of the misconduct, Rocha refused to answer questions because he was afraid that he would be outed if he did so, he testified.

"I'm confident that, at least personally, had 'don't ask, don't tell' not been the policy, I would have felt confident to report the abuse when it escalated and not fear reprisal,” Rocha said during the trial.

Phillips also rejected arguments by Justice Department attorneys that the Log Cabin Republicans did not have standing to bring the case and had “manufactured” its membership list. Government attorneys questioned whether one named service member in the suit — Servicemembers United executive director Alex Nicholson — and "John Doe," a lieutenant colonel still serving in the Army Reserves, were actual members of the gay Republican group at the time the suit was filed.

"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," Nicholson said in a statement after the decision. "We are finally on our way to vindication." 

Justice Department attorneys did not offer witnesses in the trial. They relied on the legislative history of DADT and argued that any antigay motives in passing the law were irrelevant. “We do not believe that a trial is necessary or appropriate," assistant U.S. attorney Paul Freeborne said in July. "The court should resolve this case as a matter of law.”

During the trial the legal team led by Woods called to the stand both service members affected by the policy and expert witnesses such as Palm Center director Aaron Belkin and Nathaniel Frank, author of Unfriendly Fire: How the Gay Ban Undermines the Military and Weakens America.

In his testimony Frank detailed a history of systemic
discrimination against homosexuals in the military beginning around the
time of World War I. Though empirical research, including studies in the 1950s and a 1993
RAND Corp. study, found no rational basis for excluding gays from service, the
discrimination continued and eventually was codified as DADT, a policy largely influenced by the antigay sentiments of
key lawmakers and military leaders.

Frank recalled one
interview with Charlie Moskos, a sociologist who influenced DADT policy
and claimed to have coined the term "don't ask, don't tell." Frank
asked Moskos whether allowing gays to serve openly would truly affect
unit cohesion — an assertion often made by Moskos and other proponents
of the policy.

"Fuck unit cohesion," Moskos replied, according to Frank's testimony. "I don't care about that. This is a moral issue to me."

Click here for a PDF of the court's opinion.