U.S. District Court Judge Virginia A. Phillips did something unremarkable Tuesday: She ordered the government to stop enforcing an unconstitutional law. But her ruling made headlines because the law in question was the military's "Don't Ask Don't Tell" policy, and the judge's order means gay people can serve in the military without hiding their sexual orientation.

Once the judge ruled on Sept. 9 that the law violated gay soldiers' First and Fifth Amendment rights, Tuesday's injunction barring the law's enforcement nationwide became essentially inevitable. That didn't stop the federal government from asking the judge to issue a very narrow order, however, limiting its effect to soldiers who were also members of the Log Cabin Republicans, the gay rights group that was the plaintiff in the case.

If the government had had its way, it would have inserted a bizarre variation into Americans' core constitutional rights to free speech and due process: People's membership in the Log Cabin Republicans, not their status as citizens under the Constitution, would determine the extent of their constitutional rights.

Judge Phillips' findings of fact and conclusions of law make important reading because they dismantle the core justification for Don't Ask, Don't Tell: the idea that openly gay soldiers have a negative impact on military readiness and unit cohesion. The government cited seven pieces of evidence -- three reports and the testimony of four experts, including retired Gen. Colin Powell. Neither the reports nor the experts pointed to any empirical evidence to support claims that openly gay soldiers hurt military readiness or unit cohesion.

Hard Evidence That Policy Hurts the Military


In contrast, plaintiffs introduced strong empirical evidence that the Don't Ask, Don't Tell policy actually hurt military readiness and unit cohesion: Among other issues, the policy resulted in the discharge of some 13,000 otherwise qualified soldiers at a time when the military was heavily committed and understaffed.

Strikingly, though, discharges decreased after the war in Afghanistan started, even though overall military membership increased, a result that suggests that during wartime, when soldiers were most needed, the military found it preferable to have gay soldiers serve rather than discharge them for their sexual orientation. This inference was backed up by other evidence showing that discharge proceedings for being gay were delayed while soldiers were serving combat missions: Only after soldiers returned from combat would they be discharged. That practice is impossible to square with the idea that gay soldiers undermine either unit cohesion or military readiness.

Plaintiffs also showed that discharged service members had particularly vital skills, such as fluency in foreign languages, and that the policy negatively impacted military recruitment. But the plaintiffs' most emotionally compelling evidence was the testimony of decorated and admired career military members who were discharged because they were gay. One was outed involuntarily: Someone violated military policy to access and read his personal emails, one of which revealed he was gay, triggering his discharge. One served openly for over two years without incident and was decorated repeatedly, until proceedings were brought to discharge her. A total of five discharged gay service members and one heterosexual one who refused to reenlist because of the policy testified compellingly during the case.

Obama's Position: Personal or Political?

Gay rights have had a banner year in the courts, which have struck down as unconstitutional one state's gay marriage ban, the federal ban on recognizing gay marriages and now Don't Ask Don't Tell. President Obama has gone on record as supporting gay rights, and in particular an end to Don't Ask Don't Tell. Despite this, his administration has defended these unconstitutional laws, and in the case of the statute barring the federal recognition of gay marriages, has appealed the ruling. Presumably, the administration will appeal this ruling too.

That must mean that President Obama's support of gay rights is more a personal conviction that a public policy matter, in which case, who cares? People don't get elected for their private views unless those views are translated into policy. It's no defense to say the Obama administration is trying to repeal the act through Congress: It could continue to do so without appealing Judge Phillips's order, on the grounds that it wants legislative as well as judicial action on the issue.

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thomasva6

yes, don't forget the baby powder.

October 15 2010 at 1:10 PM Report abuse -2 rate up rate down Reply
thomasva6

....and baby powder.

October 15 2010 at 11:43 AM Report abuse -2 rate up rate down Reply
thomasva6

the us will never win another war because our military is wussified. not just picking on gays and females. my fiancees nephew is in the marines and his mommy asked the family to send him chapstick, baby wipes, body wash and lollipops.

October 15 2010 at 11:27 AM Report abuse -2 rate up rate down Reply
uneekpop

This from an idiot who has no idea how the military fuctions, never served.The no ask no tell worked just fine wait till they see what a can of worms they opened

October 15 2010 at 9:49 AM Report abuse -2 rate up rate down Reply
brigittepj

I wonder how many posting here have ever served in the military? I did for 24 years and can tell you that there always have been, and always will be, gays serving in the military. I can also tell you that, in most units, it's pretty common knowledge who is gay and who isn't. Most who are discharged under the DADT policy are turned in by someone who has a grudge against them, forcing the commander to act. There are currently 35 countries which allow gays to openly served in their militaries and they do not experience the problems that many here envisioned. This is a flawed policy which doesn't say you can't serve in our military if you're gay, but if you choose to, you will have to hide your personal life from everyone around you, and often, pretend to be someone you're not so your career isn't jeopardized. Oh, and if we happen to find out because someone violates your privacy and reads your email or letters or gets mad at you and turns you in, you're fired. How can anyone not see how inherently unfair and seriously unconstitutional this policy is?

October 15 2010 at 8:51 AM Report abuse +3 rate up rate down Reply
pseufert

The empirical data provided is open to interpretations. The 13,000 were discharged because they were unqualified, specifically because they were openly gay. Consider an analogy to say that a surgeon with shaky hands was retired despite that he was "otherwise qualified" does not make me want him operate on me. Regarding the decrease of discharges since the Afgan war, in times of war the standard for soldiers does go down. In WWII there were 16 year olds fighting. Shall we now set the age standard at 16? I think not. I am much more comfortable with the expert testimony provided by the government than the biased misinterpretation of the "empirical data." See full article from DailyFinance: http://srph.it/b2BJbU

October 14 2010 at 7:12 AM Report abuse -2 rate up rate down Reply
skipper864

Those who support DADT, DOMA and Prop. 8 need to e-mail your evidence to the lawyers on your side ASAP as they cannot win cases in court. Hint: "I don't like it," and "The Bible says. . . " are not evidence in a court of law.

October 14 2010 at 3:17 AM Report abuse +4 rate up rate down Reply
croone22

It is obvious that Abigail has had a very sheltered life. If that decision is allowed to stand, thousands of homosexual basic trainees will be brutally beaten in barrick shower-rooms all over the U.S. Basic training for enlisted personnel is much more basic than that which is encountered OTC recruits.And Generals who support the repeal of don't ask don't tell are political ass-kisses and cowards.

October 13 2010 at 10:22 PM Report abuse -1 rate up rate down Reply
5 replies to croone22's comment
Delbert

Sorry judge, but I think you should butt out of the way the military is run. Take your conclusion a little bit farther judge on the Constitution question or "the law." Sarge, I think this is the way the unit should be run and I'm only praticing my freedom of speech! You know Captain, I should be getting overtime for this. General, is this approved by OSHA? I believe when someone signs the contract to enlist, they know about DADT. Am I for or against DADT? I'm been out for 42 years, so I'm more then willing to let others decide, just not the courts!

October 13 2010 at 7:00 PM Report abuse rate up rate down Reply
Bearmaul

You know, there's something to be said about a platoon of gay soldiers killing taliban fighters on the field of battle, as they travel to paradise on their way to 72 virgins let them stop and explain to mohammad how and why they were killed by members of the 'pink lady brigade. With that being said I have no problems with gays in the military, what I have problems with are liberal progressive judges forcing an issue on the american public that they don't want, this was a job for our congress not some light in the loafer judge.

October 13 2010 at 6:15 PM Report abuse -1 rate up rate down Reply