Federal judge declares DADT unconstitutional

by on September 10, 2010  •  In Constitutional law, Military

U.S. District Judge Virginia Phillips ruled late yesterday that the Don't Ask Don't Tell policy violates the liberty and expression rights of service members.  The opinion in Log Cabin Republicans v. U.S. declares that the intrusions into the private lives of personnel that are created by the policy do not advance the government's interest in national security and in fact undermine it, by diminishing morale and readiness. Judge Phillips also held that the policy is unnecessarily broad in the penalties on speech that result from it, citing examples from the trial record such as an Air Force officer whose private e/mail was read without his consent. 

The Justice Department defended the constitutionality of the statute but put on no witnesses during trial. It took the position that because plaintiffs were bringing a facial challenge – i.e. arguing that the law was unconstitutional in any possible application – that the court was limited to consideration of the text of the statute and its legislative history. Judge Phillips rejected that argument, holding that the evidence had to show that the law had "a plainly legitimate sweep" [quoting a 2008 Supreme Court decision] in order for a facial challenge to fail. And this standard, she ruled, was not met.

Because the government elected not to introduce any evidence, the opinion has the feel of the one in Perry v. Schwarzenegger: a lengthy analysis, based on a one-sided trial in which the defendant made the tactical choice to participate only minimally, choosing to seek vindication later by trying to persuade an appellate court that the trial judge was insufficiently deferential to majoritarian concerns. More broadly, it reflects a growing judicial skepticism toward anti-gay policies, especially from judges who live in regions where equality is commonplace.

Judge Phillips, who sits in Riverside, CA, indicated that she will issue an injunction against the policy. Plaintiffs have a week – until next Thursday the 16th – to submit a proposed injunction, and defendants have another week to file objections. The issue now becomes how broadly the order will reach – whether will it apply nation-wide. And, of course, also familiar from Perry, will be the question of whether the judge suspends enforcement of the injunction until after the appeals process has been completed.  If she doesn't, the Justice Department will seek – and probably get – a stay from the Ninth Circuit.

The decision couldn't come at a better time, given that advocates are pressuring the Senate to adopt the DADT repeal provision negotiated last spring. If you read the opinion, you'll see there's lots of ammunition in it for eliminating a horrible law.


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