“Don’t Ask, Don’t Tell” restriction on gays in US military is ruled unconstitutional

10 September 2010 by Rosalind English

A district court in California has ruled that the Pentagon’s “don’t ask, don’t tell” policy is unconstitutional, and has awarded the plaintiffs a permanent injunction barring further enforcement of the statute embodying the policy. Read judgment.

The Times reports today that  Judge Virginia Philips found that the policy  violated the plaintiffs’ rights to substantive due process guaranteed by the Fifth Amendment to the United States Constitution, and their rights of freedom of speech, association, and to petition the government, guaranteed by the First Amendment. The lawsuit was filed by a Southern Californian gay rights group by way of a challenge to the “don’t ask, don’t tell” (DADT) policy which was introduced by President Clinton in 1993 as a way of keeping a campaign promise to allow gays and lesbians to serve in the military. The measure overturned a doctrine issued under President Reagan stating that homosexuality was “incompatible with military service”, but allows gays to be dismissed if they reveal their sexual orientation even in a passing remark.

The Act reflects the concerns of the then-chairman of Joint Chiefs of Staff Colin Powell that

military life is fundamentally different from civilian life.. [that] the presence in the armed forces of persons who demonstrate the propensity of intent to engage in homosexual acts would create an unacceptable risk to the high standards of morale, good order and discipline and unit cohesion that are the essence of military capability

(as testified before the Senate Armed Services Committee July 20 1993).

There have been a number of challenges to DADT but this one is the first to succeed.

We have posted before on the fate of the state ban on gay marriage in the US, the application of human rights norms on the battlefield and, on the reverse side of the coin, the prioritisation of gay rights in asylum decisions. This is a particular interesting ruling because it demonstrates the width of the US constitution’s principle of due process and the way it includes interests that are separately covered by Articles 6 and 8 of the European Convention on Human Rights, as well as the way it interlinks with the protection of free speech under the First Amendment (again, separately articulated in Europe by Article 10).

In order to comply with the DADT Act, the plaintiffs contended that they had to keep their sexual orientation a secret from their colleagues, their unit and their military superiors, and that they could not communicate the core of their emotions and identity to others in the same manner as heterosexual members of the military, on pain of discharge from the army. The Court observed that the Act captures in its grasp such activities as private correspondence between service members and their family members and friends, and conversations between service members about their daily off-duty activities. The Act even prevents them from reporting violations of military ethical and conduct codes, even in outrageous incidences, for fear of retaliatory discharge.

The Judge noted that the government made out a somewhat half-hearted defence of the status quo; the evidence adduced by the plaintiffs, on the other hand, was compelling. One of the members of the pressure group taking the case, who had won many awards and honors during his service in the Air Force, learned that his private email had been searched whilst he was on deployment to Iraq and when he returned to Germany his commanding officer confronted him with the messages, read him the DADT Act and pressured him to admit he was homosexual. He was subsequently relieved of his duties.  The plaintiff witnessed at first hand the demoralising effect of the abrupt withdrawal of his services from his squadron, which “fell apart” after his discharge forcing an unprepared junior officer to take over. This illustrated how important the plaintiff was not only to the mission but to his troops.

The plaintiffs therefore demonstrated to the satisfaction of the court that the DADT Act does not significantly advance the Government’s interests in military readiness and unit cohesion. Indeed the discharge of several hundred service members under this Act severely reduced the number of members with “critical” language skills, including Arabic, Farsi, Chinese or Korean fluency. Further, the plaintiffs contended that the DADT Act negatively affects military recruiting in two ways: its existence discourages those who would otherwise enlist from doing so, and many colleges will not permit military recruiting because the Act’s requirements violate their employment nondiscrimination policies.

The plaintiffs’ claims that the DADT Act violated their substantive due process rights was based on jurisprudence that associated these rights with

the autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct

And although earlier cases had found that DADT did not implicate the First Amendment protection of free speech, the judge considered the Act’s proscriptions of certain types of speech: it requires a service member’s discharge if he or she has “stated that he or she is a homosexual or bisexual, or words to that effect”. In her view, the Act thus unlawfully distinguishes between speech regarding sexual orientation (and therefore inevitably family relationships and daily activities) by gay service members, which is banned, and speech on those subjects by heterosexual service members, which is permitted. Even though the US courts’ review of military regulations challenged on First Amendment grounds is far more deferential than constitutional review of similar laws designed for civilian society, this margin of appreciation does not entirely abrogate the guarantees of the First Amendment in the military context. She therefore concluded that the DADT Act failed the test of constitutional validity.

The Department of Justice is expected to appeal the ruling, but only because it is required to enforce existing law. The Obama Administration has pledged to repeal DADT and allow gays to serve openly; indeed President Obama in his capacity of Commander in Chief of the Armed Forces stated last year that

“Don’t Ast, Don’t Tell” doesn’t contribute to our national security…preventing patriotic Americans from serving their country weakens our national security…reversting this policy is the right thing to do and is essential for our national security.