Litigation

?Don?t Ask, Don?t Tell? is Ruled Unconstitutional

By Peter Hardin

A federal district judge in California has struck down as unconstitutional the U.S. military’s “don’t ask, don’t tell” policy toward its gay members.

?The ‘don?t ask, don?t tell’ act infringes the fundamental rights of United States service members in many ways,? wrote Judge Virginia A. Phillips. She went on to explain, according to a New York Times article:

?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.?

Judge Phillips also said the ban on openly gay service members has a “direct and deleterious effect” on the military, the Washington Post reported.

“This year has been a big one for LGBT rights litigation,” noted the Above the Law blog. It pointed to a decision throwing out California’s Proposition 8 ban on gay marriage; a judge’s decision in Massachusetts finding unconstitutional part of the Defense of Marriage Act; and the latest decision, in Log Cabin Republicans v. United States of America.

The judge’s ruling did not have the immediate effect of ordering a halt to the military’s policy. The plaintiffs are to offer a proposed injunction by Sept. 16, and the defendants will have a chance to reply.

Tony Perkins, head of the conservative Family Research Council, labeled Judge Phillips a “judicial activist” and said, ?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 record saying the law on homosexuality in the military should not be changed.”

R. Clarke Cooper, executive director of the Log Cabin Republicans, called the victory  ?not just a win for Log Cabin Republican service members but all American service members.? The group is a gay and lesbian organization.

Meanwhile, Iowa has become a focus of attention for conservatives unhappy with a state Supreme Court ruling that legalized same-sex marriage. Some activists are calling for a change in the way Iowa judges are selected, through a merit appointment system.

Iowa Chief Justice Marsha Ternus defended the existing system this week, KCCI TV reported. She said:

“Combining courts and politics brings poor results. Courts are less likely to be fair and impartial when judges succumb to the pressure to make popular decisions — whether to satisfy contributors to the last election or to gain support for the next election.”

Full post as published by The Gavel on September 10, 2010 (boomark / email).