View Full Version : Don't Ask Don't Tell Ruled Unconstitutional

September 9th, 2010, 11:16 PM
Judge declares U.S. military's 'don't ask, don't tell' policy
openly banning gay service members unconstitutional [updated]

LOS ANGELES TIMES (http://latimesblogs.latimes.com/lanow/2010/09/federal-judge-declares-us-military-ban-on-openly-gay-service-members-unconstitutional-.html)
BY Phil Willon
September 9, 2010

6:07 pm

A federal judge in Riverside declared the U.S. military’s ban on openly gay service members unconstitutional Thursday, saying the “don't ask, don't tell” policy violates the 1st Amendment rights of lesbians and gay men.

U.S. District Court Judge Virginia A. Phillips said the policy banning gays did not preserve military readiness, contrary to what many supporters have argued, saying evidence shows that the policy in fact had a “direct and deleterious effect’’ on the military.

Phillips said she would issue an injunction barring the government from enforcing the policy. However, the U.S. Department of Justice, which defended “don’t ask, don’t tell” during a two-week trial in Riverside, will have an opportunity to appeal that decision.

The ruling comes just over a month after a federal judge in San Francisco tossed out California’s voter-approved ban on same-sex marriage, providing back-to-back victories for gay rights advocates seeking policy changes in the courts that have eluded them in Congress and at the ballot box. The case was filed by the Log Cabin Republicans, the largest political organization for gays in the GOP, in 2004.

[Updated, 6:30 p.m.: "As an American, a veteran and an Army reserve officer, I am proud the court ruled that the arcane ‘don't ask, don't tell’ statute violates the Constitution,” said R.Clarke Cooper, executive director of the Log Cabin Republicans & Liberty Education Fund. “Today, the ruling is not just a win for Log Cabin Republican service members, but all American service members."]

The ruling is expected to intensify political pressure in Washington to act on legislation to repeal “don’t ask, don’t tell," which remains stalled in the Senate despite support from President Obama and the Democratic congressional leadership.

President Obama has called the ban a threat to national security, and the U.S. House in May passed legislation to repeal “don’t ask, don’t tell” if an ongoing Pentagon study determines the military can adapt to the change without harming defense readiness.

Despite Obama’s criticism of the policy, the Justice Department vigorously defended “don’t ask, don’t tell’’ and even tried to undercut the case with a technical legal challenge over whether the named plaintiffs were dues-paying members of the organization that filed the lawsuit: the Log Cabin Republicans.

Copyright 2010

September 9th, 2010, 11:24 PM
Federal Judge Declares DADT Unconstitutional

THE DAILY KOS (http://www.dailykos.com/story/2010/9/9/900612/-Federal-Judge-Declares-DADT-Unconstitutional)
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] (http://latimesblogs.latimes.com/lanow/2010/09/federal-judge-declares-us-military-ban-on-openly-gay-service-members-unconstitutional-.html)

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 (http://www.cacd.uscourts.gov/Cacd/RecentPubOp.nsf/bb61c530eab0911c882567cf005ac6f9/4f03e468a737002e8825779a00040406/$FILE/CV04-08425-VAP%28Ex%29-Opinion.pdf) 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."


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.


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.


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.

© Kos Media, LLC

September 9th, 2010, 11:46 PM
Judge Rejects Military Policy Toward Gays

NY TIMES (http://www.nytimes.com/2010/09/10/us/10gays.html?hp)
September 9, 2010

The “don’t ask, don’t tell (http://topics.nytimes.com/top/reference/timestopics/subjects/d/dont_ask_dont_tell/index.html?inline=nyt-classifier)” policy toward gay members of the military is unconstitutional, a federal judge in California ruled Thursday.

United States District Judge Virginia A. Phillips of the central district of California struck down the rule in an opinion issued late in the day. The policy was signed into law in 1993 as a compromise that would allow gay and lesbian soldiers to serve in the military.

The rule limits the military’s ability to ask about the sexual orientation of service members, and allows homosexuals to serve as long as they do not disclose their orientation and do not engage in homosexual acts.

The plaintiffs, challenged the law under the Fifth and First Amendments to the Constitution, and Judge Phillips agreed.

“The Don’t Ask, Don’t Tell Act infringes the fundamental rights of United States service members in many ways,” she wrote. “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.”

The rule, she wrote in an 86-page opinion, does not promote military readiness — and, in fact, has a “direct and deleterious effect” on the armed services.

The decision is among a number of recent legal rulings that have suggested a growing judicial skepticism about measures that discriminate against homosexuals, including rulings against California’s ban on same-sex marriage and a Massachusetts decision striking down the a federal law barring the federal government from recognizing same-sex marriage.

The decision will not change the policy right away; the judge called for the plaintiffs to submit a proposed injunction limiting the law by September 16th, and invited defendants to submit their objections to the plan a week after that. A decision would follow, and even then would likely be stayed pending appeals.

The suit was brought by Log Cabin Republicans, a conservative gay organization. The group’s executive director, R. Clarke Cooper pronounced himself “delighted” with the ruling, which he called “not just a win for Log Cabin Republican service members, but all American service members.”

Dan Woods, lead attorney for the plaintiffs, said the decision was “a major victory in the fight for equality and means that military service will be available to all Americans, regardless of their sexual orientation.”

Those who would have preserved the rule, however, were critical of the decision. “It is hard to believe that a District Court level judge in California knows more about what impacts military readiness than the service chiefs who are all on record saying the law on homosexuality in the military should not be changed,” said Tony Perkins, the president of the conservative Family Research Council. He called Judge Phillips a “judicial activist,” and added, “This is a decision for Congress that should be based upon the input of the men and women who serve and those who lead them.”

As a candidate for president, Senator Barack Obama vowed to end “don’t ask, don’t tell.” Once elected, he remained critical of the bill but he said it was the role of Congress to change the law; the Justice department has continued to defend the law in court. In February, Defense Secretary Robert M. Gates and Adm. Mike Mullen, the chairman of the Joint Chiefs of Staff, asked Congress to allow gays to serve openly by repealing the law. The House has voted for repeal, but the Senate has not yet acted.

Richard Socarides, an attorney who served as an adviser to the Clinton administration on gay issues when the rule was passed into law, said that the legal action was long overdue. “Everyone but Congress knows this law doesn’t make any sense,” he said. “The president has said he opposes the policy, yet he has defended it in court. Now that he’s lost, and resoundingly so, he must stop enforcing it, and do so now.”

The case, which was heard in July, involved testimony from six military officers who had been discharged because of the policy. One, Michael Almy, was serving his third tour of duty in Iraq as an Air Force major when, after thirteen years of service, someone using his computer found at least one message to a man discussing homosexual conduct. Mr. Almy testified that if the Act were repealed, he "wouldn’t hesitate" to rejoin the service.

Another, John Nicholson, was going through training for intelligence work in the Army and tried to conceal his sexual orientation by writing to a friend in Portuguese. A fellow service member who was also fluent in that language, however, read the letter on his desk and rumors spread throughout his unit. When Mr. Nicholson asked platoon sergeant to help quash the rumors, the sergeant instead informed his superiors, who initiated discharge proceedings. He, too, said he would "absolutely" return to active service if the law allowed it.

Copyright 2010 The New York Times Company

October 12th, 2010, 05:56 PM
Maybe this time it will stick ...

Judge Orders Injunction on ‘Don’t Ask, Don’t Tell’

NY TIMES (http://www.nytimes.com/aponline/2010/10/12/us/AP-US-Gays-in-Military.html?hp)
October 12, 2010
Filed at 5:42 p.m. ET

SAN DIEGO (AP) — A federal judge issued a worldwide injunction Tuesday immediately stopping enforcement of the military's "don't ask, don't tell" policy, suspending the 17-year-old ban on openly gay U.S. troops.

U.S. District Judge Virginia Phillips' landmark ruling also ordered the government to suspend and discontinue all pending discharge proceedings and investigations under the policy.

U.S. Department of Justice attorneys have 60 days to appeal. Pentagon and Department of Justice officials said they are reviewing the case and had no immediate comment.

The injunction goes into effect immediately, said Dan Woods, the attorney who represented the Log Cabin Republicans, the gay rights group that filed the lawsuit in 2004 to stop the ban's enforcement.

"Don't ask, don't tell, as of today at least, is done, and the government is going to have to do something now to resurrect it," Woods said. "This is an extremely significant, historic decision. Once and for all, this failed policy is stopped. Fortunately now we hope all Americans who wish to serve their country can."

Legal experts say the Obama administration is under no legal obligation to appeal and could let Phillips' ruling stand.

Phillips' decision was widely cheered by gay rights organizations that credited her with getting accomplished what President Obama and Washington politics could not.

"This order from Judge Phillips is another historic and courageous step in the right direction, a step that Congress has been noticeably slow in taking," said Alexander Nicholson, executive director of Servicemembers United, the nation's largest organization of gay and lesbian troops and veterans.

He was the sole named veteran plaintiff in the case along with the Log Cabin Republicans, a gay rights organization that filed the lawsuit in 2004 to stop the ban's enforcement.

Gay rights groups warned gay troops not to make their sexual orientation public just yet. Aaron Tax, the legal director for the Servicemembers Legal Defense Network, said he expects the Justice Department to appeal. If that happens, the case would be brought to the U.S. Court of Appeals for the 9th Circuit, where the decision could be reversed.

"Service members must proceed safely and should not come out at this time," Tax said in a statement.

Defense Secretary Robert Gates, a Republican, and Chairman of the Joint Chiefs of Staff Adm. Mike Mullen, the military's top uniformed officer, have both said they support lifting the ban. But Gates and Mullen also have said they would prefer to move slowly.

Gates has ordered a sweeping study, due Dec. 1, that includes a survey of troops and their families.

President Obama agreed to the Pentagon study but also worked with Democrats to write a bill that would have lifted the ban, pending completion of the Defense Department review and certification from the military that troop morale wouldn't suffer.

That legislation passed the House but was blocked in the Senate by Republicans.

Gates has said the purpose of his study isn't to determine whether to change the law — something he says is probably inevitable but up for Congress to decide. Instead, the study is intended to determine how to lift the ban without causing serious disruption at a time when troops are fighting two wars.

"The president has taken a very consistent position here, and that is: 'Look, I will not use my discretion in any way that will step on Congress' ability to be the sole decider about this policy here,' " said Diane H. Mazur, legal co-director of the Palm Center, a think tank at the University of California at Santa Barbara that supports a repeal.

Government attorneys had warned Phillips that such an abrupt change might harm military operations in a time of war. They had asked Phillips to limit her ruling to the 19,000 members of the Log Cabin Republicans, which includes current and former military service members.

The Department of Justice attorneys also said Congress should decide the issue — not her court.

Phillips disagreed, saying the law doesn't help military readiness and instead has a "direct and deleterious effect" on the armed services by hurting recruiting during wartime and requiring the discharge of service members with critical skills and training.

"Furthermore, there is no adequate remedy at law to prevent the continued violation of servicemembers' rights or to compensate them for violation of their rights," Phillips said in her order.

She said Department of Justice attorneys did not address these issues in their objection to her expected injunction.

Phillips declared the law unconstitutional after listening to the testimony of discharged service members during a two-week nonjury trial this summer in federal court in Riverside.

She said the Log Cabin Republicans "established at trial that the Don't Ask, Don't Tell Act irreparably injures servicemembers by infringing their fundamental rights." She said the policy violates due process rights, freedom of speech and the right to petition the government for redress of grievances guaranteed by the First Amendment.

Phillips is the second federal judge in recent weeks to throw the law into disarray.

A federal judge last month in Tacoma, Wash., ruled that a decorated flight nurse discharged from the Air Force for being gay should be given her job back as soon as possible. Barring an appeal, Maj. Margaret Witt who was suspended in 2004, will now be able to serve despite being openly gay.

Gay rights advocates have worried they lost a crucial opportunity to change the law when Senate Republicans opposed the defense bill last month because of a "don't ask, don't tell" repeal provision.

If Democrats lose seats in the upcoming elections, repealing the ban could prove even more difficult — if not impossible — next year.

The "don't ask, don't tell" policy prohibits the military from asking about the sexual orientation of service members but bans those who are openly gay. Under the 1993 policy, service men and women who acknowledge being gay or are discovered engaging in homosexual activity, even in the privacy of their own homes off base, are subject to discharge.

Copyright 2010 The New York Times Company

December 9th, 2010, 04:47 PM
Senate fails on repeal of 'Don't ask, don't tell'

By Roxana Tiron - 12/09/10 04:06 PM ET
The Senate on Thursday dealt a severe blow to the repeal of the “Don’t ask, don’t tell” law, dimming the chances for the Clinton-era ban to be scrapped this year.

Senate Majority Leader Harry Reid (D-Nev.) failed to garner the necessary 60 votes for a procedural motion to start considering the 2011 defense authorization bill, which contains a provision to repeal the ban on openly gay people serving in the military. The final vote was 57-40.
Most Republicans stuck to their pledge to block any bills until a deal is reached on the extension of the Bush-era tax cuts and government spending for 2011 is resolved. Republican Sens. Scott Brown (Mass.) and Lisa Murkowski (Alaska), who have expressed support for repealing the law, both voted no. Democratic Sen. Joe Manchin of West Virginia also voted against cloture.
Several Republicans indicated that they would support scrapping the ban, but that they wanted to see an open debate process on the defense authorization bill, including the ability to offer a series of amendments. Those Republicans included Sen. Susan Collins (Maine), who voted in favor of cloture on Thursday, as well as Brown and Murkowski.
Murkowski's statement of support for repealing the Clinton-era law on Wednesday had given repeal advocates the necessary certainty that they would have the 60 votes necessary to make repeal happen.
But Collins, the GOP's chief negotiator on the defense bill, on Thursday said she was "perplexed" and "frustrated" that Reid would allow the defense bill to become the "victim" of politics. Collins had wanted more time to debate amendments.

http://thehill.com/homenews/senate/1...-ask-dont-tell (http://thehill.com/homenews/senate/132745-senate-fails-on-repeal-of-dont-ask-dont-tell)

December 9th, 2010, 06:40 PM
Oh man. So apparently the votes exist. I can't believe the two issues were connected in the legislation like that. Annoying, the way the Congress always does that!

December 9th, 2010, 08:43 PM

Now, support for a stand alone bill.

December 10th, 2010, 08:28 AM
We won't let gays serve openly until you reduce taxes for rich people.


December 10th, 2010, 09:53 AM
Well, the duplicitous gang in DC isn't paying for the war -- just pushing the cost into the future. Why should we expect them to let honorable citizens serve & die with integrity?

December 10th, 2010, 11:49 AM
Because they are all illegal immigrants wanting to be allowed to stay here because they are serving or going to college....

wait a sec.....

July 16th, 2011, 04:01 PM
Court temporarily reinstates "Don't Ask, Don't Tell"

LOS ANGELES | Sat Jul 16, 2011 11:22am EDT

(Reuters) - A federal appeals court has reversed itself and temporarily reinstated the "Don't Ask,
Don't Tell" policy on gays in the military, but it has blocked the Pentagon from significant enforcement of the policy.

In an order issued late on Friday, a three-judge panel of the San Francisco-based 9th U.S. Circuit Court of Appeals sided with a request
by President Barack Obama's administration to temporarily reinstate the policy against allowing openly gay men and women to serve in the military.

The government has said it needs more time to prepare for an end to the controversial policy.

Obama signed legislation in December to repeal "Don't Ask, Don't Tell," but the bill gave the Pentagon an unlimited time frame to implement the change,
leading up to a final "certification" of the repeal.

In the meantime, a separate challenge to the policy had advanced in the federal court system, where last week the 9th U.S.
Circuit Court panel upheld a lower-court decision declaring "Don't Ask, Don't Tell" unconstitutional and ordered the military to immediately lift the ban.

In their latest ruling, the judges said that, based on information provided by government lawyers, senior military officials have made plans to
end "Don't Ask, Don't Tell" and that certification will be presented to Obama by the end of July or in early August.

The judges' three-page order also states that only one military service member has been discharged for being openly gay
since the passage of the repeal act in December.

The judges stated that "in order to provide this court with an opportunity to consider fully the issues presented in light of these previously undisclosed facts"
it was temporarily reinstating the policy.

But the order also blocks the military "from investigating, penalizing or discharging anyone from the military pursuant to the Don't Ask, Don't Tell policy."

The policy dates from 1993, when then-President Bill Clinton signed the directive into law as a compromise with the military to end an outright ban on
gay service members that had been in force for decades.

More than 13,000 men and women have been expelled from the military under the policy since it was instituted by Clinton.
(Reporting by Alex Dobuzinskis: Editing by Jerry Norton)


July 16th, 2011, 11:17 PM
The judges' three-page order also states that only one military service member has been discharged for being openly gay
since the passage of the repeal act in December.

That means one more soldier's life has been torn asunder. So much for Constitutional protection of individual rights, eh?

... the order also blocks the military "from investigating, penalizing or discharging anyone from the military pursuant to the Don't Ask, Don't Tell policy."

Re-instituted, but toothless.

And we complain that Italy is where the Court of Fools holds forth.

July 17th, 2011, 09:07 PM
And we complain that Italy is where the Court of Fools holds forth.

We hold the Fifth....

July 17th, 2011, 10:14 PM
Seems as though they just can't make up their minds on this issue. Shit or get off the pot!

July 18th, 2011, 10:57 AM
I am under the impression that this is temporary and was done at the behest of the Obama administraion who claims the military requires more time to implement the repeal. Is that not true?

July 18th, 2011, 11:47 AM
That does seem to be the situation: The law remains in effect but will not be enforced or acted upon. Meanwhile STFU.

No wonder people are confused / crazy.