Federal Judge Deems Military 'Don't Ask, Don't Tell' Rule as 'Unconstitutional'

"Once again, homosexual activists have found a judicial activist who will aid in the advancement of their agenda. 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."

From LifeSiteNews
By Kathleen Gilbert

A federal judge in California Thursday night ruled that the military's "Don't Ask, Don't Tell" (DADT) policy banning homosexuals from disclosing their orientation while serving in the U.S. military is unconstitutional.

The ruling, which the judge vowed to follow up with a permanent injunction against the policy in two weeks, arrived less than three months before a Pentagon study evaluating the possible detrimental effects of repealing the policy is due to Congress.

In an 86-page opinion, Judge Virginia A. Phillips claimed that the defendants, listed as the United States and Secretary of Defense Robert Gates, have failed to prove that DADT "was necessary to significantly further the Government's important interests in military readiness and unit cohesion." The Log Cabin Republicans, a national homosexualist Republican group, was plaintiff in the case.

Meanwhile the ban, argued Phillips, violated homosexuals' First Amendment right to free speech because it disallowed them from discussing their sexuality.

"Heterosexual members are free to state their sexual orientation, 'or words to that effect,' while gay and lesbian members of the military are not. Thus, on its face, the Act discriminates based on the content of the speech being regulated," she wrote.

While noting that courts traditionally "apply a more deferential level of review of military restrictions on speech," Phillips said that DADT fails to win the special protection because it "encompasses a vast range of speech, far greater than necessary to protect the Government's substantial interests," as it restricts off-duty socializing and other casual speech.

Phillips also argued that DADT's restrictions "actually serve to impede military readiness and unit cohesion" by discouraging military employees from reporting anti-homosexual harassment.

The House of Representatives passed a repeal of the ban in May that would go into effect if Gates and the chairman of the Joint Chiefs of Staff, Admiral Mike Mullen, confirmed that the repeal was sensible in light of the Pentagon report.

Family Research Council president Tony Perkins immediately condemned the ruling in a statement late Thursday.

"It is hard to believe that a District Court level judge in California knows more about what impacts military readiness than the service chiefs who are all on the record saying the law on homosexuality in the military should not be changed," said Perkins, a Marine veteran. "Once again, homosexual activists have found a judicial activist who will aid in the advancement of their agenda. 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,"