September 9, 2010 at 9:33 pm EDT | by Chris Johnson
Federal judge rules against ‘Don’t Ask, Don’t Tell’

A federal court in California on Thursday ruled in favor of plaintiffs in the case challenging the constitutionality of “Don’t Ask, Don’t Tell.” The current law is still in effect.

U.S. District Court Judge Virginia Phillips decided in favor of Log Cabin Republicans and their lawsuit against the 1993 law banning open service in the U.S. military.

Phillips determined that “Don’t Ask, Don’t Tell” violates the free speech and due process rights of gay, lesbian and bisexual service members under the First and Fifth Amendments.

“Log Cabin Republicans has demonstrated the ‘Don’t Ask, Don’t Tell’ Act, on its face, violates the constitutional rights of its members,” Phillips writes. “Plaintiff is entitled to the relief sought in its First Amended Complaint: a judicial declaration to that effect and a permanent injunction barring further enforcement of the Act.”

Phillips writes that evidence presented during the trial for case showed that “Don’t Ask, Don’t Tell” doesn’t “further significantly the government’s important interests in military readiness or unit cohesion, nor is it necessary to further those interests.”

“Defendants’ discharge of homosexual servicemembers pursuant to the Act not only has declined precipitously since the United States began combat in Afghanistan in 2001, but Defendants also delay individual enforcement of the Act while a servicemember is deployed in a combat zone,” she writes. “If the presence of a homosexual soldier in the Armed Forces were a threat to miltary readiness or unit cohesion, it surely follows that in times of war it would be more urgent, not less, to discharge him or her, and to do so with dispatch.”

Phillips notes that an “abrupt and marked decline” in discharges under “Don’t Ask, Don’t Tell” started in 2001 at the onset of operations in Afghanistan. She writes that discharges decreased from 50 percent between 2001 and 2002 and “steadily thereafter.”

The ruling won’t take effect immediately. Phillips asked the plaintiffs to submit a proposed judgment, including a permanent injunction against enforcement of the law by Sept. 16.

In a statement, R. Clarke Cooper, executive director of Log Cabin, applauded the judge for her decision.

“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,” Cooper said. “Today, the ruling is not just a win for Log Cabin Republican service members, but all American service members.”

Alex Nicholson, executive director of Servicemembers United, is the sole named injured party in the lawsuit and testified during the trial for the case in July.

In a statement, Nicholson called the decision a “historic ruling for the gay military community and for the readiness and integrity of our Armed Forces.”

“As the only named injured party in this case, I am exceedingly proud to have been able to represent all who have been impacted and had their lives ruined by this blatantly unconstitutional policy,” Nicholson said. “We are finally on our way to vindication.”

Aubrey Sarvis, executive director of Servicemembers Legal Defense Network, also praised the decision, but emphasized the importance of congressional action in moving forward with repeal.

“We’re pleased by the judge’s decision, but this decision is likely to be appealed and will linger for years,” he said. “Congress made the [‘Don’t Ask, Don’t Tell’] law 17 years ago and Congress should repeal it. The Senate will have the opportunity to do just that this month and most Americans think the Senate should seize it.”

The Obama administration defended “Don’t Ask, Don’t Tell” against the litigation in court.

Robin McGehee, co-founder of GetEQUAL, said the decision will be a “moment of truth” for President Obama and urged his administration not to appeal his decision.

“It would be a travesty for the President’s own Department of Justice to move forward with appealing this case,” she said. “The LGBT community has been asking the President to stand up and offer real leadership on the repeal of ‘Don’t Ask, Don’t Tell’ and now is the time for President Obama and Attorney General Eric Holder to take this opportunity to act on the right side of history and ensure that this ruling is carried out swiftly, fully, and justly.”

At least one social conservative group expressed disappointment in the ruling. Tony Perkins, president of the Family Research Council, said the decision shows that “homosexual activists” have found a “judicial activist who will aid in the advancement of their agenda.”

“It is hard to believe that a District Court level judge in California knows more about what impacts military readiness than the service chiefs who are all on the record saying the law on homosexuality in the military should not be changed,” Perkins said. “This is a decision for Congress that should be based upon the input of the men and women who serve and those who lead them.”

Click here for a copy of the court decision.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson is a member of the White House Correspondents' Association. Follow Chris

  • You cannot justify fornication even if you try to hide it behind liberal terms “domestic partners”! The greatest insult to God Almighty is trying to officiate this wickedness in the name of marriage but I tell you this – what you do is blasphemy and you will pay. even dogs to not bed cats…tigers do not bed sheep…rats do not bed snakes.

    I cant wait to do my part and vote obamanomore and every other twisted, evil, libdemwit out of power that I can that thinks like you evil ones.

  • Just look at at the hatred in ariels commentts. And one must wonder why he is here. Self hating people, their minds poisoned by anti-christ churches, who become the agents of hatred.

    I was reading something about a youngster who was bullied half to death some years ago by a small school group because he was obviously gay.

    Ultimately 4 of the 8-9 bullies as they grew up became out gay men.

    Sorry ariel, you cant hide your fears of being outed behind a hateful god. Its that simple.

    If I manage to find out who you – I have a friend who knows more about the internet then God, I’ll out you to your whole family. You remind em of a drunken 21 year old seatmate on a plane trip 15 years ago.
    a I felt sorry for him, got just enough out of him to figure out that he had been involved in gay porn on a website “miami”

    And I’ve discovered he is now an almost violent anti gay street preacher. I’,m going to get one of his porn movies, and personally deliver it to his wife – yes he is married – when he is not home. I sure don’t feel sorry for him any more. And never will for you either.

  • When I saw the headline, I thought, good, at last I have something I can praise a Republican group for. Then I read this, and saw that Cooper had to turn this into a partisan jab against President Obama. There is no chance that Cooper doesn’t know that Obama opposes DADT and is trying to repeal it. For all I know, the victory in this case might be due in part to a less-than-aggressive defense by the Justice Department. In any case, Log Cabin’s cheap partisan jab adds a gratuitous sour note to the celebration.

  • I thought the exact same thing, Rick. If they want to be angry with anyone, it should be the Bush administration, since they filed this lawsuit in 2004. Obama was no where close to being president then. And the only reason why they had any success is because the justice department is not arguing heavily for it.

    And @ariel… seriously? First, this has absolutely NOTHING to do with gay marriage. Secondly, do you troll all the gay websites, or are you just particular to this one? I don’t understand how someone who feels so strongly about “the gays” that he would want to spend time on our websites…

    • Most of the trolls like Ariel live in their mother’s basements watching slash porn and eating cheetos while j.o.. In other words, no life and nothing to do but judge and condemn others.

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