US ban on gays in military ‘unconstitutional’

2010-09-10 10:36

A federal judge in California has struck down the US ban on gays openly serving in the military, saying the policy is unconstitutional and violates free speech rights.

Judge Virginia Phillips said yesterday that evidence presented by the Log Cabin Republicans, a gay conservative group, clearly showed that the policy discriminated against homosexuals by forcing them to conceal their sexual orientation.

She said the Act prevented gay service members in the military from talking about their relationships while allowing heterosexual troops to do the same.

“The Don’t Ask Don’t Tell Act, on its face, violates the constitutional rights of homosexual troops,” Phillips wrote.

“Plaintiff has demonstrated it is entitled to the relief sought on behalf of its members, a judicial declaration that the Don’t Ask, Don’t Tell Act violated the Fifth and First Amendments, and a permanent injunction barring its enforcement.”

The injunction, which would suspend enforcement of the controversial policy nationwide, will not go into effect immediately.

The Log Cabin Republicans have until September 16 to draft a proposed injunction and the government has a week from that date to submit objections. The government can also appeal the decision.

“This is an historic moment and an historic ruling for the gay military community and for the readiness and integrity of our armed forces,” said Alexander Nicholson, a multilingual former US army interrogator discharged under the Act.

“I am exceedingly proud to have been able to represent all who have been impacted and had their lives ruined by this blatantly unconstitutional policy. We are finally on our way to vindication,” he said.

The case places President Barack Obama’s administration in the difficult position of trying to defend a policy it is committed to repealing.

Obama has spoken out against Don’t Ask Don’t Tell but has pledged to repeal it in coordination with the military and Congress and only after completion of a study on how its repeal would affect military readiness and unit cohesion.

The House of Representatives has passed legislation that would eventually repeal the policy, but the Senate has yet to vote on the bill.

The repeal has the support of Admiral Mike Mullen, the chairperson of the Joint Chiefs of Staff, and Defence Secretary Robert Gates has agreed, somewhat reluctantly, to prepare the military for an end to the ban.

But other senior military officials argue the ban is the best compromise – allowing gays to serve so long as they do not reveal their orientation – and say a repeal would hurt troop morale and readiness.

Phillips rejected the suggestion that the repeal would harm the US military, arguing instead that the policy itself was detrimental.

“Far from furthering the military’s readiness, the discharge of these servicemen and women had a direct and deleterious effect on this governmental interest,” she wrote.

The judge cited the discharge of troops with critical language skills and the decline in morale of troops who saw qualified gay and lesbian colleagues booted out of the military because of their sexual orientation.

She also noted that soldiers suspected of being gay were allowed to serve out their deployments in theatre and investigations and discharges did not occur until their return, demonstrating “that the policy is not necessary”.

Further, she wrote, the act “infringes the fundamental rights of United States service members in many ways”.

It “denies them the right to speak about their loved ones while serving their country in uniform... it discharges them for including information in a personal communication from which an unauthorised reader might discern their homosexuality,” she wrote.

Phillips said the Act further violated US troops’ rights under the Fifth Amendment, protecting due process, by limiting their ability to contest a discharge.

Chad Griffin, board president of the American Foundation for Equal Rights, hailed the ruling as “yet another significant and long overdue step toward full equality for all Americans”.

“It is clear that our nation is moving toward the day when every American will be treated equally under the law, as is required by our constitution,” he said.

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