Federal Judge Strikes Down Don't Ask Don't Tell

"Plaintiff Log Cabin Republicans attacks the constitutionality of the statute known as the "Don't Ask, Don't Tell" Act, found at 10 U.S.C. § 654, and its implementing regulations. Plaintiff's challenge is two-fold: it contends the Act violates its members' rights to substantive due process guaranteed by the Fifth Amendment to the United States Constitution, and its members' rights of freedom of speech, association, and to petition the government, guaranteed by the First Amendment.

The Court finds Plaintiff Log Cabin Republicans... has established standing to bring and maintain this suit on behalf of its members. Additionally, Log Cabin Republicans has demonstrated the Don't Ask, Don't Tell Act, on its face, violates the constitutional rights of its members. Plaintiff is entitled to the relief sought in its First Amended Complaint: a judicial declaration to that effect and a permanent injunction barring further enforcement of the Act.

... the evidence at trial demonstrated that the Act does not further significantly the Government's important interests in military readiness or unit cohesion, nor is it necessary to further those interests. Defendants' discharge of homosexual servicemembers pursuant to the Act not only has declined precipitously since the United States began combat in Afghanistan in 2001, but Defendants also delay individual enforcement of the Act while a servicemember is deployed in a combat zone. If the presence of a homosexual soldier in the Armed Forces were a threat to military readiness or unit cohesion, it surely follows that in times of war it would be more urgent, not less, to discharge him or her, and to do so with dispatch. The abrupt and marked decline – 50% from 2001 to 2002 and steadily thereafter – in Defendants' enforcement of the Act following the onset of combat in Afghanistan and Iraq, and Defendants' practice of delaying investigation and discharge until after combat deployment, demonstrate that the Act is not necessary to further the Government's interest in military readiness. In summary, Defendants have failed to satisfy their burden under the Witt standard. They have not shown the Don't Ask, Don't Tell Policy "significantly furthers" the Government's interests nor that it is "necessary" in order to achieve those goals. Plaintiff has relied not just on the admissions described above that the Act does not further military readiness, but also has shown the following:

By impeding the efforts to recruit and retain an all-volunteer military force, the Act contributes to critical troop shortages and thus harms rather than furthers the Government's interest in military readiness; by causing the discharge of otherwise qualified servicemembers with critical skills..., the Act harms rather than furthers the Government's interest in military readiness; by contributing to the necessity for the Armed Forces to permit enlistment through increased use of the "moral waiver" policy and lower educational and physical fitness standards, the Act harms rather than furthers the Government's interest in military readiness; defendants' actions in delaying investigations regarding and enforcement of the Act until after a servicemember returns from combat deployment show that the Policy is not necessary to further the Government's interest in military readiness or unit cohesion; by causing the discharge of well-trained and competent servicemembers who are well-respected by their superiors and subordinates, the Act has harmed rather than furthered unit cohesion and morale; the Act is not necessary to protect the privacy of servicemembers because military housing quarters already provide sufficient protection for this interest.

The Don't Ask, Don't Tell Act infringes the fundamental rights of United States servicemembers in many ways, some described above. The Act denies homosexuals serving in the Armed Forces the right to enjoy "intimate conduct" in their personal relationships. The Act denies them the right to speak about their loved ones while serving their country in uniform; it punishes them with discharge for writing a personal letter, in a foreign language, to a person of the same sex with whom they shared an intimate relationship before entering military service; it discharges them for including information in a personal communication from which an unauthorized reader might discern their homosexuality. 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. Thus, Plaintiff, on behalf of its members, is entitled to judgment in its favor on the first claim in its First Amended Complaint for violation of the substantive due process rights guaranteed under the Fifth Amendment.

Conclusion: Throughout the consideration and resolution of this controversy, the court has kept well in mind the overriding principle that "judicial deference to such congressional exercise of authority is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged... Nonetheless, as the Supreme Court held... "deference does not mean abdication."... Plaintiff has demonstrated that it is entitled to the relief sought on behalf of its members, a judicial declaration that the Don't Ask, Don't Tell Act violates the Fifth and First Amendments, and a permanent injunction barring its enforcement. It is so ordered." Judge Virginia A. Phillips, U.S. District Court, Central District of California, Sept. 9, 2010.