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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