Noteboom The Law Firm

Federal Court Declares “Don’t Ask Don’t Tell’ Unconstitutional

September 10, 2010 - Late yesterday U.S. District Judge Virginia Phillips ruled on the constitutionality of "Don't Ask Don't Tell". She found it violated the constitutional rights of openly gay service members and was therefore unconstitutional; specifically their 1^st and 5^th Amendment rights. Further, she is declared she will issue an injunction halting the policy.

Judge Phillips stated she planned on writing her injunction within a week and will do so with contribution from the Log Cabin Republicans, who originally sued the federal government in 2004 to bring a halt to "Don't Ask Don't Tell." Once the injunction is filed, the federal government has only a week to respond. Judge Phillips, however, does not have the power to issue such an injunction, if government lawyers are correct.   

In her ruling, she declared the policy has the direct opposite effect of its intended purpose, and instead has a "direct and deleterious effect." That is, the policy hurts the military's recruiting efforts as well forcing people who posses vital skills out of the military.

The attorney for the Log Cabin Republicans argued "Don't Ask Don't Tell" violated the First Amendment rights of free speech and open association as well as the Fifth Amendment right to due process owed to gay military members. He further argued the ban was a detriment to the military in preventing the service of thousands of capable people.

The US Department of Justice has not indicated if they plan on appealing the decision. President Obama has long held he is in favor of repealing the ban and will work toward doing so. Whether or not he chooses to appeal this decision will be interesting.