Don't Ask, Don't Tell, Don't Think So

A federal judge in California struck down the military's ban on gay soldiers yesterday, saying it was unconstitutional.  Judge Virginia A. Phillips issued the ruling late last night on the case of servicemen discharged from the military under the policy.

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, has a “direct and deleterious effect” on the armed services.

The plaintiffs argued that the act violated the rights of service members in two ways.

First, they said, it violates their guarantee of substantive due process under the Fifth Amendment. The second restriction, the plaintiffs said, involves the free-speech rights guaranteed under the First Amendment. Although those rights are diminished in the military, the judge wrote, the restrictions in the act still fail the constitutional test of being “reasonably necessary” to protect “a substantial government interest.”

The “sweeping reach” of the speech restrictions under the act, she said, “is far broader than is reasonably necessary to protect the substantial government interest at stake here.” 

DADT's days were numbered of course, but this pretty much seals the deal.  It's not going to help the Obama administration's base that Eric Holder and the DoJ will almost certainly appeal the ruling to the Ninth Circuit and have to again defend the policy in court, and the odds of a much less cooperative Congress after January is arguably much higher now.

Everyone of course has been waiting for Congress to act on this, and they've punted to the DoD.  Now, something's got to give and give soon.  Judge Phillips has stayed her decision in order to give the government a chance to appeal the case, and it may or may not be heading for the Supreme Court depending on what the Pentagon does.

Interestingly enough, it was the Log Cabin Republicans who brought and won the lawsuit against DADT.  Good for them.  Republicans shouldn't tolerate such open discrimination any more than Democrats or anyone should for that matter.  Alas, we still have quite a bit in America in 2010.

Things are getting slightly better, at least.