A federal judge in California has found that the government’s “Don’t Ask, Don’t Tell” policy violates the First and Fifth Amendment rights of gay and lesbian military members and issued an injunction halting enforcement of the law.
The case, brought by the gay Log Cabin Republicans, puts the Obama administration again in the position of potentially taking an appeal to the liberal U.S. Court of Appeals for the Ninth Circuit defending a law that is opposed by its powerful (and increasingly skeptical) lesbian and gay base.
U.S. District Court Judge Virginia A. Phillips said the policy banning homosexual conduct did nothing to help with military readiness and that the law actually had a “direct and deleterious effect’’ on the military. The judge is prepared to halt enforcement of the law, but the Obama administration will have a week to challenge that injunction once the Log Cabin Republicans submit their proposed language.
“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,” R. Clarke Cooper, executive director of the Log Cabin Republican group said after the ruling. “Today, the ruling is not just a win for Log Cabin Republican servicemembers, but all American servicemembers.”
While the Obama administration has said that it wants to end DADT, it has continued to defend the rule in court because of the traditional function of the Justice Department to defend existing laws approved by Congress. In May, the House passed legislation to repeal “don’t ask, don’t tell” if a Pentagon study determines the military can adapt to the changes. There has not been a vote in the Senate.
But with Democratic-controlled Congress now in jeopardy, the administration faces the prospect of not being able to overturn DADT in Congress and therefore court challenges may be the best way to eliminate the law that has become the centerpiece of the gay and lesbian political community’s agenda. The failure to repeal DADT is at the top of many grievances LGBT activists have with the administration.
The Obama administration did not put on any witnesses or present a case in defense of the law, only submitting the legislative history of the rule passed during the Clinton administration.
In the decision, the judge said the government undercuts its argument that gay and lesbian military members are a harm to the military when it ceases investigations to allow accused servicemembers to serve in combat, noting “[i]t defies logic that the purposes of the Act could be served by suspending the investigation during overseas deployments, only to discharge a servicemember upon his or her return to a non-combat station.”
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