Thursday, September 9, 2010

Judge: Military's ban on gays unconstitutional

From Episcopal Café

The Washington Post reports that "a federal judge in Southern California has declared the U.S. military's ban on openly gay service members unconstitutional."
U.S. District Judge Virginia Phillips on Thursday granted a request for an injunction halting the government's "don't ask, don't tell" policy for gays in the military.


james said...

Let's see how long it is before the screaming starts from the religious right who will call this judge an "activist" and file all sorts of legal things to keep discrimination in the military. I say about 1 second.

JCF said...

Phillips says the policy doesn't help military readiness and instead has a "direct and deleterious effect" on the armed services.

Yes, we must NEVER cause a "direct and deleterious effect" on (Palin-speak) Our Brave Soldiers...

...unless it's to keep out Teh Gays, of course. O_o

George Clifford said...

The DADT policy is morally wrong and the time for accepting people for military service regardless of sexual orientation/preference long over due. However, the federal Courts have historically deferred to the military with respect to military policies, affording wide lattitude not found in the civilian community. If the Supreme Court allows this decision to stand, that will signal a tremendous sea change in the national values and attitudes.

dr.primrose said...

If anyone is interested in reading the decision in full (86 pages), you may read it here.


"Taken as a whole, the evidence introduced at trial shows that the effect of the Act has been, not to advance the Government's interests of military readiness and unit cohesion, much less to do so significantly, but to harm that interest. The testimony demonstrated that since its enactment in 1993, the Act has harmed efforts of the all-volunteer military to recruit during wartime. The Act has caused the discharge of servicemembers in occupations identified as "critical" by the military, including medical professionals and Arabic, Korean, and Farsi linguists. At the same time that the Act has caused the discharge of over 13,000 members of the military, including hundreds in critical occupations, the shortage of troops has caused the military to permit enlistment of those who earlier would have been denied entry because of their criminal records, their lack of education, or their lack of physical fitness." (pp. 64-65)

"Thus, 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." (p. 72)

dr.primrose said...

The court's decision may be read here. The court's summary:

"In summary, Defendants ... 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 such as Arabic, Chinese, Farsi, and Korean language fluency; military intelligence; counterterrorism; weapons development; and medical training, 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." (pp. 72-74)