Judge Rules DADT Military Speech Content-Based. Decision Establishes Constitutional Legal Scrutiny Under First Amendment—High Hurdle for Obama’s DOJ to Overcome.
EXCLUSIVE ANALYSIS — By Tanya Domi
Editor’s note: Tanya L. Domi is an Adjunct Assistant Professor of International and Public Affairs at Columbia University and served fifteen years in the U.S. Army. She is a regular contributor to The New Civil Rights Movement.
NEW YORK, Oct. 12, 2010—Judge Virginia Phillips of the Federal District Court in Riverside, California issued an order today to the Obama Administration to immediately cease enforcement of the disputed “Don’t Ask, Don’t Tell” law—including investigations and discharges.
In an incisive and sweeping decision that arguably takes the heart out of “Don’t Ask, Don’t Tell” (DADT), Judge Phillips found that the government does not have the constitutional right, even in the military, to restrict or punish service members who engage in protected acts of speech, including identifying themselves as being gay.
Judge Phillips wrote in her review while recognizing the legally established rule of deference by the courts to the military, permitting some restrictions on military speech, that DADT did not survive “constitutional scrutiny†because it “has a sweeping reach of the restrictions of speech contained in the statute which are far broader than is reasonably necessary to protect the substantial government interest.â€
In a damning litany, Phillips cited numerous examples of how DADT prevented plaintiff witnesses Michael Almy and Anthony Loverde from discussing their personal lives or comfortably socializing off-duty with their respective colleagues. Jenny Kopfstein, another plaintiff witness, testified that DADT made it impossible for her to respond to mundane questions from shipmates about how she spent her leisure time away from duty without revealing the existence of her partner.
In bolstering her decision through these examples, Judge Phillips asserted that DADT’s “restrictions on speech not only are broader than reasonably necessary to protect the government’s substantial interest,” but also actually “serve to impede military readiness and unit cohesion, that than further these goals.”
Indeed, Judge Phillips makes a specific point in the decision to assert the chilling effect that DADT had on the speech and actions of plaintiffs Alex Nicolson and Joseph Rocha, who were consequently afraid to bring violations of military policy or codes of conduct to the attention of the chain-of-command. In their testimony, Nicholson and Anthony Loverde also acknowledged the similar chilling effect on their speech when overhearing or being subjected to homophobic slurs or taunts.
Furthermore, Judge Phillips expressly pointed to additional acts of repressed speech which include prohibitions on openly joining organizations who advocate the repeal DADT, such as Log Cabin Republicans; writing personal letters, even in a foreign language to a person of the same-sex whom they had had an intimate relationship with before joining the military; and certain discharge for confiscation of private emails to family and friends that may reveal their sexual orientation, when heterosexuals are exempt from such punitive scrutiny.
Phillips also ruled that the government did not meet the Witt Standard with respect to its policy of prohibiting openly gay soldiers based upon a long maintained rationale of “unit cohesion and military readiness.” She ruled that DADT does not further the significant interests of the government. In fact, she asserts the government actually delays discharges based upon sexual orientation when individuals are judged to be necessary, especially when deployed in combat locations.
The Lawrence Supreme Court decision was cited by Judge Phillips on numerous occasions, but most decisively with respect to “constitutionally recognized substantive due process rights associated with the autonomy of self that includes freedom of thought, belief and expression.†Lawrence portends to be a significant decision in all-future cases involving LGBT rights.
Tanya L. Domi is an Adjunct Assistant Professor of International and Public Affairs at Columbia University, who teaches about human rights in Eurasia and is a Harriman Institute affiliated faculty member. Prior to teaching at Columbia, Domi worked internationally for more than a decade on issues related to democratic transitional development, including political and media development, human rights, gender issues, sex trafficking, and media freedom.
Domi has worked in a dozen countries. Prior to working abroad, she became a nationally known LGBT rights activist in the United States as the legislative director and military freedom initiative director at the National Gay and Lesbian Task Force, where she worked to repeal the ban on lesbians and gays who served in the military and was directly involved in drafting and original introduction of the Employment Non-Discrimination Act in 1994. She has been actively involved in the effort to repeal DADT during the past two years as a blogger and speaker, with expertise as a result of her 15 years of service in the U.S. Army as an enlisted soldier and commissioned officer.
Domi has a Masters of Arts in Human Rights from Columbia University, with a regional specialty in East Central Europe and The Balkans.