Federal Court Overturns "Don't Ask, Don't Tell" As Unconstitutional

The Los Angeles Times reports that "a federal judge in Riverside on Thursday declared the U.S. military's ban on openly gay service members unconstitutional, saying the 'don't ask, don't tell' policy violates the 1st Amendment and due process rights of lesbians and gay men. U.S. District Judge Virginia A. Phillips said the policy does not preserve military readiness, contrary to what Justice Department attorneys and many supporters have argued, because evidence shows that the policy in fact has had a 'direct and deleterious effect' on the armed services."

The New York Times reports that Professor William A. Woodruff, a retired Army lawyer who teaches at Campbell University School of Law in Raleigh N.C., said that if this ruling stood, individuals could challenge other kinds of discharges, like those for excess weight or poor eyesight. “Traditionally, the Supreme Court has said federal justices should not be playing in military policy,” he said. “Those are areas where the judiciary does not have the experience or knowledge to substitute their judgment for that of the military commander.” UCLA Law Professor Adam Winkler points out that before he joined the Supreme Court, Anthony Kennedy was a judge on the Ninth Circuit where he directly addressed the conflict between gay rights and military deference. Ruling on the pre-Clinton policy of simply banning homosexuals from the military, Kennedy voted to uphold the complete ban on gays in the military because "constitutional rights must be viewed in light of the special circumstances and needs of the armed forces... In view of the importance of the military's role, the special need for discipline and order in the service," Kennedy explained, the ban on homosexuals in the military was justifiable. Anthony Kennedy would no doubt serve as the fifth vote upholding the military policy if this case were to reach the Supreme Court, assuming of course consistency on Kennedy's part (which is not necessarily the safest assumption, I might add). This case outright ignores the many precedents that provide great deference to the military in making policies for the purpose of maintaining unity and discipline within the service.

Though a case that dealt with a different clause within the First Amendment, this decision is worth comparing to the 1986 Supreme Court decision of Goldman v. Weinberger, in which a Jewish Air Force officer was denied the right to wear a yarmulke (Jewish skull cap) when in uniform on a military base on the grounds that the Free Exercise Clause applies less strictly to the military than to ordinary citizens. The justification for this according to the Supreme Court which upheld the ban was a need to "foster instinctive obedience, unity, commitment, and esprit de corps." It seems to me that if the military is allowed to outlaw certain forms religious expression of officers not in the field of combat, then the military should have no less of a power to ban expression regarding sexual orientation to foster the very same unity and discipline. This is a matter not to be left with one judge, but with military commanders and members of Congress who they report to on the usefulness of the "don't ask, don't tell" policy. Tweet