Breaking: Federal judge in California says “don’t ask, don’t tell” is unconstitutional

posted at 10:07 pm on September 9, 2010 by Allahpundit

This one isn’t quite as explosive as the Prop 8 ruling, partly because a heavy majority (including a majority of Republicans) already supports letting people who are openly gay serve and partly because the policy’s already on its way out. But if you’re looking for a little extra something to fuel this fall’s populist mojo, some legalistic jujitsu by an unelected judge against a longstanding national policy will do the trick nicely.

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…

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.

That’s from the LA Times, which insists that the DOJ “vigorously defended” the policy in this case. Did it, though? Here’s a tidbit from the end of the court’s opinion:

Finally, it again must be noted that Defendants called no witnesses, put on no affirmative case, and only entered into evidence the legislative history of the Act. This evidence, discussed in Section IV(C)(1) above, does not suffice to show the Act’s restrictions on speech are “no more than is reasonably necessary” to achieve the goals of military readiness and unit cohesion.

Sounds like the feds maybe kinda sorta wanted to lose this one, possibly to help break the logjam in the Senate. (Maybe something for the lame-duck session?) The opinion’s long but I recommend skimming the material starting on the bottom of page 72. There are two claims: First, that DADT violates gay service members’ due process right of “intimate conduct” — a direct result of Kennedy’s opinion striking down sodomy laws in Lawrence v. Texas — and second, that it infringes on their right to free speech by forbidding them from talking about all sorts of subjects in the interest of keeping them closeted. The military can, of course, force its members to keep silent about various things and it can also restrict their “intimate conduct” — but it needs a compelling reason to do so, and according to the court, based on the evidence there’s simply no compelling reason to do that vis-a-vis orientation. (Military personnel from various U.S. allies who already allow gays in their armies say the same thing.) There’s no equal protection ruling here as there was in the Prop 8 case, but otherwise the reasoning is very much the same. Since the government is either unwilling or unable to provide a convincing argument for discriminating based on sexuality, they can’t discriminate based on sexuality. Simple as that.

Exit question: How does The One play this tomorrow?

Update: Oh, speaking of gay rights, California, and judicial overreach, the state supreme court decided yesterday that it won’t require the governor or the attorney general to defend Prop 8. Which means, unless and until a federal appeals court takes this up, there’s no one in California with standing to defend the law even if they want to.


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Comment pages: 1 2

I sure would like to see the Constitutional part that says this … I wonder, more emanations from the penumbra?

So lets see if it stands muster …

tarpon on September 10, 2010 at 8:11 AM

Our military mission is secondary to everyone feeling good about themselves. Thanks judge!

NoDonkey on September 10, 2010 at 3:53 AM

Yup. First NASA, now the military.

itsnotaboutme on September 10, 2010 at 8:26 AM

Old: Don’t ask; don’t tell
New: Accessorize!

Bevan on September 10, 2010 at 5:18 AM

I would have thought that gay people would reject the military simply because they are hung up on such drab clothing.

slickwillie2001 on September 10, 2010 at 9:08 AM

“Hey sarge, does this flack jacket make me look fat? Do you have one that comes in a nice beige?”

tommyboy on September 10, 2010 at 9:25 AM

We’re a judgocracy, just like the Constitution says.

Akzed on September 10, 2010 at 9:29 AM

It may come as a shock to some here and should to the judge in this case. But members of the Military are NOT afforded all of the same civil liberties as the rest of society. This is the nature of a military. They are not “civilians” i.e think “civil” rights.

So an unconstitutional 1st amendment ruling is weak IMO.

BierManVA on September 10, 2010 at 10:27 AM

Um, guys,

You do realize that the armies of the ancient world had a considerable number of openly gay individuals, especially Sparta (where homosexual conduct among the hoplites was common and, some scholars believe, institutional), Athens, Macedonia (Alexander the Great actually had his gay lover with him on campaign) and Rome (Julius Caesar was a notorious bisexual).

It doesn’t seem to have hurt their performance. In fact, the Spartans believed that it actually helped unit cohesion.

While homosexual conduct ain’t my cup of tea, there is no historical evidence that it actually hurts military performance. The opposition to gays in the military is likely based not so much on opposition to gays or homosexual conduct but to being creeped out by it. While that may be understandable, it doesn’t seem to have been an issue with some of the greatest military machines of all time.

So, RELAX!!!

Pro Cynic on September 10, 2010 at 10:30 AM

So gays and lesbians in the military[*]. Wonder how that’ll play in Khandahar?

[*] they’ve been there all along, of course

I R A Darth Aggie on September 10, 2010 at 10:48 AM

“Julius Caesar was a notorious bisexual”

The only source for this rumor was one of Caesar’s political rivals (Curio) who stated that Caesar was “every woman’s husband and every man’s wife”. He based his comment on supposed rumors of a relationship with King Nicomedes. Not only was Curio a rival to Caesar but the allegation of bisexuality was intended as a insult, which tells you something right there. Seutonius repeated Curio’s remark in his “History of the Caesars”. Thus, there is very little, if anything really, to back up the assertion that Caesar was “a notorious bisexual”. He certainly never said any such thing himself in his war commentaries which are the greatest source of information we have on Caesar.

tommyboy on September 10, 2010 at 11:01 AM

An out of control federal judiciary.
Brutus of the “Anti-Federalist” papers is alive and well.

byteshredder on September 10, 2010 at 11:19 AM

The only source for this rumor was one of Caesar’s political rivals (Curio) who stated that Caesar was “every woman’s husband and every man’s wife”. He based his comment on supposed rumors of a relationship with King Nicomedes. Not only was Curio a rival to Caesar but the allegation of bisexuality was intended as a insult, which tells you something right there. Seutonius repeated Curio’s remark in his “History of the Caesars”. Thus, there is very little, if anything really, to back up the assertion that Caesar was “a notorious bisexual”. He certainly never said any such thing himself in his war commentaries which are the greatest source of information we have on Caesar.

There were other rumors as well, including rumors of an affair with Mithridates. Not the “poison king,” but his son. They were very close friends, and Mithridates even helped Caesar in Alexandria.

Caesar’s men had a habit of singing on march about his sexual prowess, including that with me. It didn’t seem to bother them. Or Caesar. That would likely hold true today.

Pro Cynic on September 10, 2010 at 11:24 AM

“Caesar’s men had a habit of singing on march about his sexual prowess, including that with me.” Ugh! Bad typo. REALLY bad typo. Should be “Caesar’s men had a habit of singing on march about his sexual prowess, including that with MEN.”

Pro Cynic on September 10, 2010 at 12:01 PM

Frankly, I don’t know any conservatives, anyone who is afraid of gay people. Not saying there aren’t any out there, but swiping with the wide brush isn’t a tactic of honest debate.

I don’t practice in dishonesty nor was a wide brush used.

I see it all the time, including some comments in this very thread. However, stating “Not all Conservatives are afraid of gay people.” is not swiping with a wide brush. Truth be told, it’s becoming more of a reality every day.

“Going in and using your sexual identity as a way to affect social and political change, to become some kind of lefty celeb or a martyr for the ’cause’ shows you to be what you are – a POS, frankly.”

One could just as easily suggest a wide brush used there.

Really didn’t take objection with most of the rest of your comments. They are, after all, opinions and for the most part, not unreasonable.

Disagree with me all you want, but it’s not necessary to suggest I’m dishonest as a cheap debate strategy. You’re a better man than that.

BruthaMan on September 10, 2010 at 2:20 PM

Ugh! Bad typo. REALLY bad typo. Should be “Caesar’s men had a habit of singing on march about his sexual prowess, including that with MEN.”

Pro Cynic on September 10, 2010 at 12:01 PM

I was wondering about that…

Maquis on September 10, 2010 at 3:53 PM

Pro Cynic on September 10, 2010 at 12:01 PM

It was funnier the first time ;)

Califemme on September 10, 2010 at 4:39 PM

BruthaMan on September 10, 2010 at 2:20 PM

Don’t know how much longer the post will be up so I wanted to get this in for the record…

I re-read your original comment, and I misread what you wrote. You’re right, I was wrong with the “broad brush” comment.

catmman on September 10, 2010 at 8:04 PM

Next up: Electing representatives to Congress is too complex and conservatives elected discriminate against certain protected classes. Therefore, it falls upon a trusty central committee — ethnically and sexually diverse, of course — to decided who goes to Congress.

That’s the exact same thing I said. If elections don’t go to the left’s liking, even as soon as this fall, why can’t someone sue to have the results overturned? If we’ve learned anything from Prop 8 and DADT, it’s that if someone’s feelings are hurt, the rights of millions to vote according to their lights must be overruled by some activist judge.

englishqueen01 on September 10, 2010 at 10:31 PM

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