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Federal judge orders military to suspend 'Don't Ask Don't Tell'

By Daniel Richey

[JURIST] Judge Virginia Phillips of the US District Court of the Central District of California [official website] on Tuesday ordered [order, PDF] the US military to end enforcement of its controversial "Don't Ask, Don't Tell" (DADT) policy [10 USC § 654; JURIST news archive]. The order comes a little more than a month after the court declared the policy unconstitutional [opinion, PDF; JURIST report] after considering arguments by the Log Cabin Republicans (LCR) [advocacy website], the conservative gay activist organization that brought the suit [case materials; LCR backgrounder] in 2004. Following the ruling, the Department of Justice (DOJ) [official website] asked the court not to enforce its decision [JURIST report], arguing that the ruling was overbroad and that the military should be permitted time to implement a non-judicial solution to the issue. In Tuesday's ruling, the court acknowledged its obligation to show deference to congressional policy decisions and the policies of other branches of government, but stressed that "deference does not mean abdication" of its authority as it issued a permanent injunction against enforcement of "Don't Ask, Don't Tell" and ordered the military "immediately to suspend and discontinue any investigation, or discharge, or other proceeding" commenced under DADT prior to the judgment. In a bench memo [text, PDF] issued along with the order, Phillips said:

[The p]laintiff established at trial that the Don't Ask, Don't Tell Act irreparably injures servicemembers by infringing their fundamental rights and violating (a) the substantive due process rights guaranteed under the Fifth Amendment to the United States Constitution, and (b) the rights to freedom of speech and to petition the Government for redress of grievances guaranteed by the First Amendment to the United States Constitution.... Furthermore, there is no adequate remedy at law to prevent the continued violation of servicemembers' rights or to compensate them for violation of their rights.

In a press release [text] Tuesday, LCR said it "urges caution by servicemembers considering coming out at this time, as the Obama administration still has the option to appeal," but said that the organization is "extremely pleased" with the injunction.

Since its enactment in 1993, approximately 13,000 servicemen and women have been discharged from the armed forces as a result of DADT. Last month, a federal judge for the US District for the Western District of Washington [official website] ordered [JURIST report] that a US Air Force officer be reinstated after being previous discharged under DADT. Also in September, the Senate [official website] rejected a cloture motion [JURIST report] on a defense appropriations bill that would have repealed the policy. In May, the House of Representatives [official website] and the Senate Armed Services Committee voted to repeal the policy after President Barack Obama and Defense Secretary Robert Gates agreed to a compromise [JURIST reports] that would prevent the repeal from taking effect until the completion of a review to determine what effects the repeal would have on military effectiveness, soldier retention and family readiness. Also in May, A CNN poll [results, PDF] released found that 78 percent of American adults believe that homosexuals should be able to serve openly in the military. In March, Gates announced changes to the enforcement [JURIST report] of the policy to make it more difficult to expel openly gay service members from the military.

Full post as published by JURIST - The Paper Chase on October 13, 2010 (boomark / email).