Don’t Ask, Don’t Tell Ruled Unconstitutional By Federal Court – Now What?

Late yesterday, in California, a federal district court ruled that “Don’t Ask, Don’t Tell” violates servicemembers’ first and fifth amendment rights, and is therefore unconstitutional.

So, our LGBT brothers and sisters can serve openly and all servicemembers discharged from the military will now be welcomed back warmly, right?

Wrong. Very wrong.

In the six-year old case brought by the Log Cabin Republicans, the decision, while groundbreaking, still leaves an estimated 66,500 LGBT servicemembers in the same hazardous limbo they currently live their daily lives.

Just as we recently saw in the aftermath of the Prop 8 trial decision, the parties involved will be able to submit appeals and the judge likely will stay her decision until it is reviewed by the next-level court.

This is an historic decision, affirming everything we have been saying. The judge made clear that using the concept of “unit cohesion” as a reason to discharge servicemembers was illogical, especially since the military had been selectively enforcing and delaying enforcement of the “Don’t Ask, Don’t Tell” law as it suited their personnel needs.

Via Keen News Service:

[The judge] also cited data submitted by Log Cabin Republicans’ attorneys showing the Defense Department often suspended investigations of servicemembers it believed to be gay until after the servicemembers had completed their tour of duty in Iraq and Afghanistan. DOD, she noted “deployed servicemembers under investigation… to combat missions or, if they were already so deployed, delayed the completion of the investigation until the end of the deployment.”

“This evidence, in particular, directly undermines any contention that [DADT] furthers the Government’s purpose of military readiness, as it shows [DOD officials] continue to deploy gay and lesbian members of the military into combat, waiting until they have returned before resolving the charges arising out of the suspected homosexual conduct.”

“Taken as a whole,” wrote Phillips, “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 clear and timely path to serving our LGBT servicemembers and our nation’s security interests, is legislative. And the repeal of DADT is in the hands of Senate Majority Leader Harry Reid, who must bring the bill already passed by the House to the Senate floor for a vote.

In, “DADT in Reid’s Hands,” Kerry Eleveld at The Advocate writes,

“I’m a little anxious,” said Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network. “The reality is the number of legislative days in this Congress are rapidly dwindling, and we need to see that the defense authorization bill up on the Senate floor in September.”

When Congress returns to Washington next week, the Senate will have until October 8 when they leave for the midterms to take the crucial vote on the 2011 National Defense Authorization Act, which contains the provision to repeal “don’t ask, don’t tell.”

Even if the bill passes, in its current form, it does not guarantee “Don’t Ask, Don’t Tell” will be repealed. It essentially leaves that decision to the military commanders, despite the fact that the president has called for full repeal of “Don’t Ask, Don’t Tell,” and despite the fact that almost 80% of America wants DADT repealed.

It is crucial that we let our Senators know that we expect them to push for a vote on repealing DADT, that we expect they will pass the bill, and we expect the bill to — in no uncertain terms — definitively states that “Don’t Ask, Don’t Tell” is immoral, not in the interest of our military, and will be repealed in full.

HRC is making it easy for you to contact your Senator. Visit Repeal DADT Now.

So is The Courage Campaign. Visit “Senator Harry Reid: Keep your promise to Lt. Dan Choi to repeal “Don’t Ask, Don’t Tell”

Bottom line, just as a federal judge found Prop 8 unconstitutional, another federal judge found parts of DOMA (the Defense of Marriage Act,) and now a federal judge has found “Don’t Ask, Don’t Tell” unconstitutional, we are seeing a strong pushback from the radical right. Federal judges, believing strongly in their decisions, are being prudent and sending their decisions “upstairs,” to the next-higher court, to ensure their decisions, ultimately, are enforced as written.

For more, read:
Chris Geidner’s excellent analysis: “Trial Court in Log Cabin Case Finds DADT Unconstitutional”
Igor Volsky’s excellent overview: “Federal Judge Finds Don’t Ask, Don’t Tell ‘Infringes On The Fundamental Rights In Many Ways’”
SLDN’s Warning: “Attention Service Members: DADT is Still in Effect“