Guest blogged by Ernest A. Canning
In her Sept. 9 decision [PDF] in Log Cabin Republicans vs. United States, U.S. District Court Judge Virginia A. Phillips, a 1995 Clinton appointee, determined that “Don’t Ask, Don’t Tell” (D.A.D.T) is unconstitutional as it violates First Amendment rights even within the more restrictive confines of military speech.
The court rejected the government’s argument that Log Cabin Republicans lacked standing to initiate the action, noting that at least one member of the group, John Nicholson, was discharged from the armed forces because of “Don’t Ask, Don’t Tell.†It expressly found that D.A.D.T “does not significantly further the government’s interest in military readiness or unit cohesion,” and directed plaintiff’s counsel to prepare a “Proposed Judgment, including a Permanent Injunction” by no later than Sept. 16.
Whether the Eric Holder Justice Department will appeal, despite President Obama’s pledge to seek a repeal of D.A.D.T., is an open question…
For the military, D.A.D.T. was a self-inflicted wound
In her decision, Judge Phillips not only pointed to official statistics revealing that some 13,023 members of the U.S. Armed forces had been discharged under D.A.D.T. between 1994 and 2009, but to the testimony of Dr. Lawrence Korb which reflected that D.A.D.T. produces an annual loss of approximately 5,000 via loss of recruiting and decisions not to re-enlist; that, for every service member discharged after ten years of service, six new members must be recruited to recover the lost level of experience.
The court observed:
Hypocrisy of D.A.D.T. exposed
The court noted that after 2001 even as the military was enforcing D.A.D.T., it began admitting convicted felons under “morals waivers.” It also pointed to the hypocrisy in the Department of Defense practice to delay discharge proceedings until after the service member completed an overseas combat mission and was redeployed in the U.S. — a delay that “undermined” the government’s claim that D.A.D.T. “served the interests of military readiness and unit cohesion.”
Breathtaking scope of intrusion into Service Members’ First Amendment Rights
In a single paragraph, Judge Phillips summed up the scope of D.A.D.T.’s overreach.
Fundamentally different rationale used here as compared to finding that CA Prop 8 same-sex marriage ban unconstitutional
It is important to avoid reading too much into this decision.
Judge Vaughn Walker’s Aug. 4, 2010 decision, which found California’s ban on same-sex marriage to be unconstitutional, was decided on Equal Protection grounds. In this case, Judge Phillips’ decision reflects that she previously dismissed an Equal Protection argument presented by the Log Cabin Republicans.
Thus, this case does not stand for the proposition that exclusion of homosexuals from military service is unconstitutional. It merely establishes that if homosexuals are to be permitted to serve, a statute which permits them to be discharged because the content of their speech reveals their homosexuality violates the First Amendment.
Ball is in Eric Holder’s Court
Once the court issues its injunction, the Justice Department has a right to appeal. If it allows the decision to become final without an appeal, the D.A.D.T. will be swept into the dustbin of history. If the Justice Department files an appeal, it would likely seek a stay of Judge Phillips’ ruling pending the outcome of the appeal.
Given the President’s promise to seek a repeal of D.A.D.T., a challenge to this well-reasoned opinion would make no sense politically, economically or morally. But then, given the Department’s track record in such matters as defending the abhorrent state secrets doctrine and extraordinary rendition, nothing it did at this point with respect to D.A.D.T. would shock me.
Ernest A. Canning has been an active member of the California state bar since 1977. Mr. Canning has received both undergraduate and graduate degrees in political science as well as a juris doctor. He is also a Vietnam vet (4th Infantry, Central Highlands 1968).
The cartoon just NAILS it. Everyone who approves of DADT should have that image burned into their consciousness.
Felons, dumbasses, and other previously unqualified persons gladly accepted in the ranks… I had a counselor in a DUI-related drug class who was an MP at Ft. Lewis, I asked her directly how that affected the military- she was not pleased. Moral was lowered. Crimes were up. Skilled positions harder to fill. But gotta keep the wheels of war greased, right?
When DADT is finally repealed for good (Obama? Hello?) it will be looked upon as the indefensible disaster that it’s become, just another sorry chapter in American history.
Hello Ernest A. Canning,
Ball is in Eric Holder’s Court caught my eye. It seems that the only time that Eric Holder has balls is when he attacks the progressives. It could be because his bosses tells him to do it (Obama, the blue dogs aka Republican lap dogs and Republican attack dogs sorry Fido).
POWERFUL. To which I add another suitable caption–
WHICH ONE IS THE MUSLIM?
I simply cannot believe this is still an issue in our country!! It`s 2010 for Gods sake! I am a “straight” woman and i think its ridiculous that who someone chooses to lay down with at night has any bering on their right to fight for their country. Wake up people!!