A federal judge in California has ruled that the military's controversial "don't ask don't tell" policy, which bans openly gay men and women from serving in the military, is unconstitutional. Judge Virginia Phillips found that the ban violates the First and Fifth Amendment rights of gay service members. The decision does not change the policy immediately, and is likely to be contested.
It comes amid mounting pressure against the policy, which the House of Representatives has voted to repeal, and the Pentagon has moved to weaken, but which the Senate has yet to act on. President Obama campaigned on a promise to overturn the ban in 2010, and gay-rights advocates have grown impatient with efforts to do so this year. Here's what this decision means and its possible impact.
The Legal Basis for the Decision John Schwartz of the New York Times explains: "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.'" Defenders of the law did not show that violating gay's rights was "necessary" for military cohesion, Judge Phillips ruled.
- A Victory for Women? Janice Formicella of the Feminists for Choice blog makes the case: "While DADT has a larger impact on gay women than gay men, the policy actually has a negative impact on all servicewomen, regardless of sexual orientation. 'Lesbian baiting,' the practice of pressuring women for sex and sexually harassing women by using the threat of calling then lesbians as a means of intimidation, is common in all levels of the military"
- Puts Pressure on Obama, Dems to Act Jeremy P. Jacobs of Hotline sketches the political impact of the ruling: "The ruling will put pressure on Obama, who supports repealing the policy, and congressional Democrats to deal with DADT -- something the Democratic base wants to see anyway."
- Anti Gay-Marriage Group Welcomes the Ruling The One Man, One Woman organization, which opposes same-sex marriage rights, published tweets surprisingly in favor of allowing gays and lesbians to openly serve. "#DADT has nothing to do with the tradition of marriage between a man and a woman and everything to do with citizens' rights. There is no need to prohibit gays and lesbians from openly serving in the Armed Forces. They should have the opportunity to serve."
- Should the Government Let the Decision Stand? Jason Mazzone at Balkination explains the legal logic. It may be tempting for Obama and congressional Democrats not to appeal the ruling, since they both support repealing don't ask don't tell. But, Mazzone writes, "A failure to appeal this case will likely generate substantial criticism." So he suggests "wait[ing] it out." "The November elections are 53 days away. Under Rule 4 of the Federal Rules of Appellate Procedure, the government has 60 days after the entry of final judgment to file a notice of appeal. The Administration can wait until after the elections to decide whether or not to appeal. It can take the position now that government lawyers are reviewing options. The Administration can then see where things stand after the November elections."
- Activists Need to Keep Up the Pressure Before November Dana Rudolph, writing at the Gay Rights blog of Change.org, urges continued pressure from activists. The dilemma, she explains, is that if the Senate doesn't vote to repeal Don't Ask Don't Tell before the November elections, Republicans may prevent it from happening. "The full Senate must now vote ... In short, Senate Republicans, led by Sen. John McCain (R-Ariz.), oppose the bill. If the vote slides into the lame duck session, many Republicans will only approve a Continuing Resolution for defense funding, which would not include DADT repeal. And once a new session starts, all bills must start their way through the legislative process again. If Republicans take back the House in November, it is unlikely they would push for action on a new DADT repeal bill."