Military Gay Ban Rejected: Federal Judge Rules That ‘Don’t Ask, Don’t Tell’ Violates Free-Speech Rights

A federal judge in California on Thursday struck down the U.S. military’s “don’t ask, don’t tell” policy as unconstitutional.

U.S. District Judge Virginia Phillips ruled that the policy, which bans the military from asking about a service member’s sexual orientation but requires the discharge of those who admit to being homosexual, violates service members’ First Amendment free-speech rights and their Fifth Amendment due process rights.

Judge Phillips, who sits in Riverside, said in her ruling that she will issue a nationwide injunction to halt the application of the long-debated policy, which was initially put into place during the Clinton administration. The injunction will not go into effect immediately. Judge Phillips asked for the plaintiffs in the case to submit a proposed injunction by next week. She said she’ll give the defendants until the following week to respond.

In her 85-page ruling, Judge Phillips found that the policy had a harmful effect on military readiness and was “unnecessary” to advance the government’s interest in “unit cohesion” among the troops.

A Pentagon spokesman referred questions to the Justice Department. “We typically do not comment on ongoing litigation,” said Army Lt. Col. Mark Ballesteros. A spokesman for the Justice Department said it is reviewing the ruling.

The ruling, which came about as the result of a lawsuit filed by the Log Cabin Republicans, a gay-rights advocacy group, drew quick responses from opposite camps in the contentious issue.

“We are delighted with the court’s ruling in favor of Log Cabin Republicans in this important case,” said Dan Woods, the group’s attorney. “This is a major victory in the fight for equality and means that military service will be available to all Americans, regardless of their sexual orientation.”

Tony Perkins, president of the Family Research Council, a group that has supported the ban on homosexuals in the military, said: “It is hard to believe that a District Court level judge in California knows more about what impacts military readiness than the service chiefs. … This is a decision for Congress that should be based upon the input of the men and women who serve and those who lead them.”

Mr. Perkins, a Marine veteran, has aggressively lobbied Congress on the issue.

The ruling by Judge Phillips, a Clinton appointee, came weeks after the end of a trial in which she heard testimony from a number of service people on the effects of the policy.

In regard to the free-speech rights of service members, Judge Phillips wrote that “The Act denies them the right to speak about their loved ones while serving their country in uniform . . . [and] 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.”

The ruling striking down the ban comes as legislative moves to repeal don’t ask don’t tell have hit roadblocks. After a compromise was brokered early this year between the White House and congressional leaders, the House approved legislation that repealed the ban on gay service members serving openly. But the measure only goes into effect after a Pentagon study is complete and the secretary of Defense and chairman of the Joint Chiefs of Staff approve it.

Both Defense Secretary Robert Gates and Adm. Michael Mullen, the chairman of the Joint Chiefs, have called for a repeal of the ban.

If the bill is not passed before the election, a lame duck Congress could be asked to vote on the issue. If Republicans win control of the House or Senate, members would likely try to push hard to drop the don’t ask repeal from the legislation.

The ruling followed by several weeks a landmark decision by a federal judge in San Francisco finding unconstitutional California’s Proposition 8, which banned same-sex marriage in the state. The ruling is currently on appeal.

Also last month, a federal judge in Massachusetts struck down parts of the Defense of Marriage Act, which prevents the federal government from giving pension and other benefits to same sex couples. The Justice Department is fighting the ruling.

Servicemembers United, an organization of gay and lesbian veterans and troops, praised the ruling. “This is an historic moment and an historic ruling for the gay military community and for the readiness and integrity of our Armed Forces” Alexander Nicholson, executive director of the group, said in a statement.