shut down

Federal Judge: Don’t Ask Don’t Tell Unconstitutional

Oh, you know that little policy called Don’t Ask Don’t Tell? It’s dead, yo.

The policy is unconstitutional, says California’s federal District Court Judge Virginia Phillips, declaring the “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 violates the Fifth and First Amendments, and a permanent injunction barring its enforcement.” Phillips, appointed by Bill Clinton in 1999, effectively knocks down the policy in deciding Log Cabin Republicans vs. the United States of America, ruling the government cannot enforce the policy any longer.

Of course, the U.S. government will be expected to request an immediate injunction pending appeal. Which they might just do — despite Obama’s promise to use Congress to repeal the law — since the DoJ has argued Phillips doesn’t even have the jurisdiction to issue an injunction.

Full decision here.

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  • Republican

    Great news!

  • Meher Zaman

    Finally, this judge has some reasoning skills. EQUALITY FOR ALL!

  • adman

    Oh wait! Are we still just a political football? Oh, yeah. I thought so.

  • John (CA)

    It has only been an hour and the venom is already flying at AP, Yahoo, and CNN.

    I think this ruling from Judge Phillips in Southern California (combined with Prop. 8 being struck down by Judge Walker last month) have put the bigots on the defensive. They are blindly hacking at anything and everything within reach at this point. In the last hour, the “options” mulled by these great Americans have included (1) nuke California; (2) shoot gay soldiers in the back and call it friendly fire; and (3) prayers to the magical sky pixie to kill off various political opponents.

    Just as Jesus would do.

  • Eric

    Read Section V-D (page 81), it’s flimsy as hell, it would never withstand appeal. Congress is going to have to deal with this one… sadly…

  • mattsmith

    Thanks Log Cabin

  • Kev C

    Thanks for this speedy decision. The Revolutionary War lasted 8 years. The Civil War lasted 4 years. WWII lasted 4 years. Combined, these wars lasted less than DADT.

  • Del Coro

    @Kev C: Except that WWII lasted 6 years. Actual facts FTW.

  • B

    No. 4 · John (CA) wrote, “It has only been an hour and the venom is already flying at AP, Yahoo, and CNN.”

    Didn’t see any “venom” in the AP article that appeared on (the San Francisco Chronicle’s web site): nor in Yahoo’s article nor in CCN’s article (I’m excluding comments posted by readers, which are typically not edited – just look at QUEERTY).

    All these articles do is to state the facts as currently known. So far, nothing has changed de facto: according to the article, “Phillips says she will draft the injunction with input from the group [The Log Cabin Republicans] within a week and the government will have a week to respond.”

    So, it will be at least 2 weeks before DADT might go away (subject, of course, to appeals and stays issued by higher courts).

  • Swimmer - Chicago

    It really great that the Log Cabin Republicans filed this legal action and now the Obama Justice Department will fight the ruling. I am so disgusted with Obama – and I am liberal – he has the house, senate, and whitehouse and a group like the Log Cabin Republicans have the balls to fight this….but Obama cannot or will not have the guts to fight for us.

  • Kev C

    @Del Coro: Maybe it lasted 6 years .. if were a nazi.

  • Del Coro

    @Kev C: Or if you’re French, or Polish, or English, or Dutch, or Austrian, or Danish. Or just not a fucking moron.

  • Fitz

    Guys, guys……… lets give ourselves a moment to just enjoy a positive step, maybe a big one, instead of instantly going into hyperbolic snark mode.

  • John (CA)

    @B: Obviously, no news editor is going to advocate murder as a solution to any problem. That’s just a lawsuit waiting to happen.

    Since online newspapers do allow comments, however, they are a part of the discourse. As such, they should not be ignored. I think it is worth remembering that, in other contexts, “readers” are called “voters.” There are, unfortunately, very angry Americans behind those computer screens. And the volume and tone of the comments are, at the very least, an indication that supporters of the ban won’t give up without a prolonged fight in court, Congress, the media, and within the military itself.

  • Bill Perdue

    @Fitz: Are you kidding? This is Queerty, which is world famous for finding the gray cloud in the silver lining.

  • Swimmer - Chicago

    Sorry – but the fight is on……Now they are sending Rahmbo back to Chicago – screw him…that homophobic creep….he can suck wind as he loses the election.

  • Queer Supremacist

    @Swimmer – Chicago: screw him…that homophobic creep

    Sex is a beautiful and pleasurable way for two people to express their love. Rahm Emanuel does not deserve it.

  • Prof. Donald Gaudard

    @Eric: Would you care to explain your CONCLUSIONS. I have read the opinion and totally disagree with you about whether or not this is a weak decision that won’t withstand appeal. Awaiting your facts to back up your conclusions, I remain, Professor of Law Emeritus Donald Gaudard

  • Bareback Hussein Osama

    Dammit, I tried to defend DADT and lost!

  • CJ

    Considering that Obama’s Justice Department has been defending DADT, and tried to get this lawsuit thrown out, my guess is that they will appeal. SLDN (Servicemembers Legal Defense Network) says the same.

    Obama, the fierce enemy to full LGBT equality.

    – Defends DADT
    – Won’t push for ENDA
    – Doesn’t want marriage for gays
    – Defends DOMA

    Oh, but he did tell the government hospitals to allow visitation. I guess that makes things OK.

  • CJ

    Time to repeal DADT, DOMA and OBAMA.

  • Bareback Hussein Osama

    @CJ: NOOOOO !!! Vote Obama !!! I am your fierce advocate !!!

  • Michael @

    @Prof. Donald Gaudard:

    With all due respect, Professor…and anyone else. It’s even more true for military ban cases [pre & post DADT] than marriage equality cases…and until “Lawrence,” sodomy cases…the brilliance of one court’s ruling is irrelevant when a higher court choses societal bigotry over it.

    Time and time again, favorable lower rulings have been shot down at the Circuit level on the same grounds, as expressed by now-Supreme Court Justice Anthony Kennedy when he was on the Ninth Circuit bench ruling on “Beller v. Middendorf.”

    “While is is clear that one does not surrender his or her constitutional rights upon entering the military, the Supreme Court has repeatedly held that constitutional rights must be viewed in light of the special circumstances and needs of the armed forces.”

    The attitude persists in post DADT cases such as “Cook v. Gates” wherein both the District level and First Circuit Court of Appeals ruled against the 12 gays who brought the suit jointly.

    The first lawsuit challenging the constitutionality of the ban was filed THIRTY-FIVE years ago by Leonard Matlovich. Ironically, Wednesday was the 35th anniversary of his iconic TIME magazine cover which awakened Americans to the fact that many gays were serving with distinction, and that some would fight to do it openly.


    While he never won on constitutional grounds, a few others did…at least at the District court level…such as Keith Meinhold in 1993. In 1994, the Ninth Circuit reversed the lower court’s ruling that the ban was unconstitutional but maintained its order that he be maintained in the Navy after having outed himself in 1992 to help lift the ban. The court said that the Navy had failed to prove he’d engaged in “homosexual conduct,” and that status alone was no grounds for dismissal. While the government did appeal other cases, for some reason they chose not to appeal his and Meinhold served a total of four years as an out gay sailor before retiring with full honors and benefits.


  • B

    No. 14 · John (CA) wrote, “Since online newspapers do allow comments, however, they are a part of the discourse.”

    … the fact is that reader comments are not the opinion of an online newspaper, anymore than the few homophobes who post comments on QUEERTY make QUEERTY a homophobic publication.

  • Michael @

    PS: The beauty of this at least temporary at least symbolic defeat for the Obama DOJ is that it will be weighing heavily on their minds this coming Monday as they go into District court in Seattle to defend DADT yet AGAIN in the retrial of the case brought by Margaret Witt.


    For those unfamiliar with the case, over two years ago, the 9th Circuit sent it back to the district level saying that the Air Force had to prove why a specific gay person must be discharged for the good of the military versus simply applying the blanket, de facto ban. Since he took office, Obama’s DOJ has ignored that ruling just as the Bush DOJ did. Had they not, Victor Fehrenbach would likely never have been recommended for discharge last year. Some will recall that he quoted the “Witt” ruling in his request a few weeks ago for a restraining order preventing his discharge. A temporary stay was agreed to by his attorneys and the government, but he’s not out of the proverbial woods yet.

  • Voice of Reason

    Hate to burst your bubble guys but a Federal Judge does not have the power to throw out DADT. You are being treated to a nice show by the Log Cabin Republicans who are well aware that this ruling doesn’t mean anything. It was strategic. They knew that the Administration was going to have to appeal the decision before they filed the lawsuit. They firgured that they could make Obama look bad. He’s fighting the poor equality seeking Log cabin Republicans and he’s a liberal. This is all part of their plan to get Republican votes. Looks like most of you fell for it!

  • Michael @

    @Voice of Reason:

    More balderdash from a pathological Obambot.

    1. The suit was originally filed when Bush fils was POTUS….were they trying to make him look bad?

    2. I’ll never vote Repug but Obama doesn’t need the LCR to make him look bad…he does a disgraceful job of that on his own.

    3. And, yes, a district court ruling COULD lead to the law being thrown out…IF upheld, in turn, by the Circuit and Supreme Courts.

  • Pip

    It really speaks to the cowardice in Washington that it takes federal judges to bring these issues to the forefront.

  • Kev C

    @Del Coro: Maybe the moron is Del Coro, because I wasn’t talking about the wars and laws of other countries but the USA. dumbass

  • CaseyS

    “I wasn’t talking about the wars and laws of other countries but the USA”

    Actually you were speaking about WORLD War 2. The clue is in the title. That was a 6 year war – not 4!

    As for this case. Well I’ll bet the Democrats are getting their panties in a right twist now.

    I’ll be they will be desperately trying to find a way to overturn this righteous judgement without alienating the LGBT vote even further.

    I am not voting Repug this year. But this year I am not voting Democrat either. The Democrats are utterly spineless and useless and do not deserve LGBT votes.

    I wonder which adult movie star will be running in my area. I’m voting for HER!

  • Cam

    It is shocking how fast HRC’s minions or maybe the “Obama can do no wrong” crowd have gotten all over facebook and the blogs with the

    “Um, uh, well, we still need to help HRC lobby Congress”


    “Oh, um, Obama is our good friend, his defending this law is all strategic, because throwing our civil rights under the bus will help him get in good with the far right.”

    Give me a break. My favorite law is the ones who say a FEDERAL judge doesn’t have jurisdiction to decide the fate of a FEDERAL LAW. Um, idiots, if the judge didn’t have jurisdiction the case wouldn’t be in his court. The fact that these people care more about their politics than about their civil rights and will lie to keep them is frightening to me.

  • Cam

    Sorry, “My favorite law” = “My Favorite LIE”

  • Steve

    This decision appears to set up a whole bunch of questions:

    If the administration chooses not to appeal, would the SecDef have to stop enforcing DADT world-wide, or only in California?
    If they stop enforcing DADT only in California, but continues enforcement in other states, would that set up a new case from somewhere else?
    If so, would the conflict of law between those jurisdictions make a fresh equal-protection claim, in addition to the original claims?
    If a serviceman is transferred from CA to another state or country, after coming out in CA, how would that be handled?

    On the other hand, if the administration chooses to appeal, what would be the basis for the appeal? The only argument they made at the trial level seems to be “standing”.

    And, either way, what are the political consequences?

    As near as I can tell, most of the practical problems would seem to arise from trying to stop enforcement only in CA, while continuing to enforce in other places.

  • Cam

    Hi Steve,

    Federal court decisions usually revert to the last decision made by the court with the highest jurisdiction. Therefore if a Federal court in CA. makes a decision about a federal law and there is no appeal, it’s decision is taken for the whole.


    Damm activist Judges! :p

  • Rick Brannon

    This is just more evidence that the HRC is COMPLETELY ineffective and useless except to raise money for it’s OVERLY paid staff and throw parties where only the rich and white are welcome.

    Thanks alot, LCR!!

  • Chitown Kev

    @Del Coro:

    Depends on how you look at it.

    The US did not declare war on Germany, Japan, or Italy until 1941 so, yes, from an American POV, the Second World War only lasted a little under 4 years.

  • Lanjier


    A District court judge does have the authority to overturn a Federal law — permanently. So you are wrong.

    If Obama does not appeal, and decides that it would be wrong to kick us in the balls again, and to kick gay soldiers in the balls again, and kick their straight buddies in the balls again, and kick the Constitution in the balls again, then the district judge will issue a permanent injunction against DADT, AND IT WILL BE DEAD — as dead as your reasoning ability.

  • Chitown Kev

    If the Obama DOJ decided not to appeal, is there any other government body that would have the right to appeal?

    (Although I believe that technically, Congress would have the right to appeal but that’s a right that’s rarely exercised).

  • Lanjier


    I don’t know if any body other than the Department of Justice has standing to appeal. The Department of Defense? Dunno. Good question.

  • Jimmy Fury

    Please correct me if I’m wrong but from what I understand this is the worst possible way to go about getting DADT repealed…

    Because it doesn’t include overturning the military code of conduct’s ban of homosexual soldiers.
    To my knowledge (again, I haven’t read the ruling itself because I can’t seem to find it) all this does is declare DADT unconstitutional while doing nothing at all about the ban of homosexual soldiers that DADT was intended to circumvent.

    I really want to emphasize that I could be wrong, i’m only going on what i’ve read elsewhere and been told by a good friend who is in the military… But DADT never undid the actual ban on homosexual soldiers. It was just a flimsy attempt to get around that ban by preventing people from finding out if soldiers were gay or lesbian.
    Isn’t this, therefore, fairly useless as a legal action?

    I mean DADT was never properly implemented anyway because the military still asked and still discharged people who never told. So just getting rid of it doesn’t actually accomplish anything and it certainly doesn’t let gay and lesbian soldiers serve openly.

  • Rick Brannon

    @Chitown Kev: Congress would have to pass a law to give itself jurisdictional authority to be “an interested party.”

    They will not do it.

  • Bill Perdue

    Not all judges are worthless all the time. Support the troops – bring them all home now.

    (No. 15 is not me.)

  • Bill Perdue


  • randy

    In the bigger picture, it doesn’t matter a bit whether this decision is upheld or overturned. It accomplishes many things:

    1. It’s a wedge between Obama and gays, only because he insists on making it so. He doesn’t have to defend it, but he chooses to. That exposes him for the hypocrite that he is.

    2. It’s highlights to the public the gutless Democratic congress. They could repeal DADT right now ,but they won’t. Instead, they want to drag the military and the public through all this muck rather deal with the issue.

    3. Every time this makes the news, we get a few more people on our side. Recent polls now show that 75% of Americans support repeal. That number can only go up.

    4. Our opponents are increasingly resorting to mudslinging and hyperbole, and anyone with a brain can see through it. They are getting desparate, and they see the handwriting on the wall.

    5. Americans are getting much more polarized on our issues. They now see that these issues will NOT go away and can’t be ignored. You must take a stand at some point. Compromises are not working, whether it’s “civil unions” or DADT. You are either for full rights for gays, or you want us back in the closet — choose.

  • CJ

    If Obama appeals this decision, it will be the “final nail in the coffin” between he and the LGBT community.

    Finally, DADT is declared null-and-void. To appeal it is essentially asking the courts to permit DADT to continue. Is Obama so blind to the political realities that he’d actually appeal this decision? it seems like political suicide between he and the LGBT community. There’d be NO understanding AT ALL from the LGBT community if he chose to appeal this judge’s decision.

    I do agree with another comment I read. The repeal of DADT does not solve anything. The military still has their own powers AND can return things to pre-DADT policies.

  • Michael @

    @Jimmy Fury:

    DADT is just “the ban” in statute form. IF the Supreme Court ultimately upholds this [or the Witt case and its angle of requiring the military to PROVE “harm” of continued service of EACH outed servicemember], discharges would end.

    On the other hand, thanks to Obama’s betrayal in backing up the Pentagon’s insistence that the proposed Military Readiness Enhancement Act be scrapped, DADT could be repealed and, yet, discharges continue under the same kind of internal pre-DADT Pentagon policies that resulted in the discharges of well over 100,000.

  • Ryan

    I actually support DADT. Repealing the bill by force would create an unsafe environment for gays. Then again, if you’re gay and are dumb enough to join the military, you probably deserve whatever hate crime that comes your way. Use common sense. The military doesn’t like you. Once again, the idiotic gay community wants to apply its civilian logic to the military. You people make me sick! *spits on you*

  • Republican


    Gays who join the military deserve hate crimes? WTF? I don’t think I’ve ever read a more disturbing comment on Queerty. I hate to speak for others here, but I think it’s fairly safe to say that YOU make many of us sick.

  • Bareback Hussein Osama

    @Voice of Reason: I am glad I still have supporters here!

  • Michael Ejercito

    @Michael @

    Here is more from Beller (my comments in parentheses)

    Such cases might require resolution of the question whether there is a right to engage in this conduct in at least some circumstances. (the Supreme Court ruled so in Lawrence v. Texas , 539 U.S. 558)The instant cases, however, are not ones in which the state seeks to use its criminal processes to coerce persons to comply with a moral precept even if they are consenting adults acting in private without injury to each other. (Indeed, Lawrence was exactly about that.)Instead, these appeals require an assessment of a military regulation which prohibits personnel from engaging in homosexual conduct while they are in the service. We conclude, in these cases, that the importance of the government interests furthered, and to some extent the relative impracticality at this time of achieving the Government’s goals by regulations which turn more precisely on the facts of an individual case, outweigh whatever heightened solicitude is appropriate for consensual private homosexual conduct. (The Ninth Circuit did more than just use a rational basis review to judge a substantive due process challenge; it explicitly stated that these challenges would fail even if heightened solicitude was applied. Of course, the Ninth Circuit and Supreme Court are free to revisit Beller .)

  • Mike

    “The US did not declare war on Germany, Japan, or Italy until 1941 so, yes, from an American POV, the Second World War only lasted a little under 4 years.”

    Does WORLD War 2 between 1939 to 1941 have a different name in the US then?

    Do you regard World War 1 as only beginning in 1917 when the US declared war on Germany?

    Seriously man. Do some research!

  • Bill Perdue

    No 15 is a forgery written by james from the great city of cambridge. He’ll be doing a lot of forging.

  • adman

    @Ryan: Oh, you’re sick alright. Think about it.

  • Brutus

    “Of course, the U.S. government will be expected to request an immediate injunction pending appeal. Which they might just do — despite Obama’s promise to use Congress to repeal the law”

    “Despite” makes no sense here. There is a HUGE difference between repealing a law because the legislature realizes that it’s no longer good policy for the country (and perhaps never was), and having that law held unconstitutional (i.e. that the legislature did not have the power to pass the law in the first place).

    I back repeal of DADT 110%, but it is not unconstitutional. This judge failed to show appropriate deference to the military context.

  • Michael @


    And exactly WHICH court do YOU sit on? District? Circuit Court of Appeals? Supreme Court?

    You don’t know shit from Shinola about the Constitution.

  • Brutus

    @Michael @ Oh? Which law school did you attend and what courses in constitutional law have you taken?

  • Brutus

    @Michael @ I’m sorry, let me get to the point less snarkily. Why do you think that the Constitution permits Congress to ban outward expressions of religious adherence in order to ensure a cookie-cutter G.I. mold, but not outward expressions of homosexuality, even though restrictions on religion typically are subject to stricter requirements of validity than laws affecting homosexuals?

  • Michael Ejercito

    The regulation at issue in Goldman v. Weinberger did not prohibit the wearing of yarmulkes while off duty or when otherwise authorized to wear civilian clothing.

  • Brutus

    @Michael Ejercito: Is that really a successful distinction? The regulation was upheld because “desirability of dress regulations in the military is decided by the appropriate military officials, and they are under no constitutional mandate to abandon their considered professional judgment,” even though “to the extent the regulations do not permit the wearing of religious apparel such as a yarmulke . . . military life may be more objectionable for petitioner and probably others.” Goldman v. Weinberger, 475 U.S. 503 (1986). As in this case, the Air Force provided no supporting evidence for its policy in the form of experience or scientific study, and the Court found Goldman’s expert testimony to the contrary (i.e., that allowing religious exemptions would in fact be good for morale) wholly irrelevant.

    “[C]ourts must give great deference to the professional judgment of military authorities concerning the relative importance of a particular military interest” because they are “ill-equipped to determine the impact upon discipline that any particular intrusion upon military authority might have . . . .” Id. (citing Chappell v. Wallace, 462 U.S. 296, 305 (1983); Orloff v. Willoughby, 345 U.S. 83, 93–94 (1953)). In other words, “‘[J]udicial deference . . . is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged.'” Id. (quoting Rostker v. Goldberg, 453 U.S. 57, 70 (1981) (upholding, against intermediate scrutiny challenge under the Equal Protection Clause, Congress’s decision not to include women in the draft).

    The test for “a military regulation that clashes with a constitutional right” applied by the D.C. Circuit below, which the Supreme Court seems to have adopted, “is neither strict scrutiny nor rational basis,” but “whether legitimate military ends are sought to be achieved . . . and whether it is designed to accommodate the individual right to an appropriate degree.” Id. (internal quotations omitted). Those legitimate ends apparently include such things as “foster[ing] instinctive obedience, unity, commitment, and esprit de corps,” id. (citing Chappell, 426 U.S. at 300; Greer v. Spock, 424 U.S. 828, 843–44 (1976) (Powell, J., concurring); Parker v. Levy, 417 U.S. 733, 744 (1974)), because “‘the military is, by necessity, a specialized society separate from civilian society,'” id. (quoting Parker, 417 U.S. at 743; citing Chappell, 426 U.S. at 300; Schlesinger v. Councilman, 420 U.S. 738, 757 (1975); Orloff, 345 U.S. at 94), that “‘must insist upon a respect for duty and a discipline without counterpart in civilian life’ . . . in order to prepare for and perform its vital role.” Id. (quoting Schlesinger, 420 U.S. at 757; citing Brown v. Glines, 444 U.S. 348, 354 (1980)). “The essence of military service ‘is the subordination of the desires and interests of the individual to the needs of the service.'” Id. (quoting Orloff, 345 U.S. at 92).

    The Court found it sufficient that “[t]he considered professional judgment of the Air Force is that the traditional outfitting of personnel in standardized uniforms encourages the subordination of personal preferences and identities in favor of the overall group mission,” and in pursuit of “discipline and unity.” Id.

    Applying this standard, DADT clearly passes muster. See 10 U.S.C. § 654(a)(15) (“The presence in the armed forces of persons who demonstrate a propensity or 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.”) True, the Goldman regulation contained “[a] narrow exception . . . for headgear worn during indoor religious ceremonies,” id., and allowed “military commanders . . . in their discretion [to] permit visible religious headgear and other such apparel in designated living quarters . . . .” But if Witt v. Dep’t of the Air Force, 527 F.3d 806 (9th Cir. 2008) is followed, as-applied challenges could provide similar exceptions; DADT, after all, is intended to target mere homosexual conduct (moreover, that conduct which is disclosed to armed forces personnel), not sexual orientation. Off-base relations may be upheld without striking DADT. But see Cook v. Gates 528 F.3d 42 (1st Cir. 2008) (concluding that even an as-applied challenge falling within the protections of Lawrence v. Texas, 539 U.S. 558 (2003), fails when balanced against the government interest in preserving military effectiveness according to its professional judgment).

    In short, this case will be overturned.

  • Michael @


    Ah, there’s the rub: you don’t understand the 10 USC 654, and ignore the temporality of “constitutionality.”

    1. You’re confusing the still-pimped-by-the-Pentagon propaganda that DADT “is intended to target mere homosexual conduct … not sexual orientation.” WRONG!

    THE LAW [emphasis mine]:

    Policy.–A member of the armed forces SHALL BE SEPARATED FROM THE ARMED FORCES UNDER regulations prescribed by the Secretary of Defense if ONE or more of the following findings is made and approved in
    accordance with procedures set forth in such regulations:
    That the member has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts unless there are further findings, made and approved in accordance with procedures set forth in such regulations, that THE MEMBER HAS DEMONSTRATED THAT–
    . . .

    That the member has stated that he or she is a homosexual or bisexual, or words to that effect, UNLESS THERE IS A FURTHER FINDING, made and approved in accordance with procedures set forth in the regulations, THAT THE MEMBER HAS DEMONSTRATED THAT HE OR SHE is NOT a person who engages in, attempts to engage in, HAS A PROPENSITY TO ENGAGE IN, or intends TO ENGAGE IN HOMOSEXUAL ACTS.
    . . .”

    THE IMPLEMENTING REGULATIONS; here from DoD Instruction 1332.14 for enlisted personnel, revised in March 2010, and echoed in regulations for officers:

    a. Basis
    Homosexual conduct is grounds for separation from the Military Services under the terms set forth in subparagraph 8.a.(2) of this enclosure. Homosexual conduct IS engaging in, attempting to engage in, or soliciting another to engage in a homosexual act or acts, A STATEMENT by a Service member that he or she is a
    homosexual or bisexual, or words to that effect
    . . . .

    A statement by a Service member that he or she is a homosexual or bisexual, or words to that effect, CREATES A REBUTTABLE PRESUMPTION that the Service member IS a person who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts. The Service member shall be advised of this presumption and given the opportunity to rebut the presumption by PRESENTING EVIDENCE demonstrating that he or she is NOT a person who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts. . . . .


    … HOMOSEXUAL CONDUCT. Engaging in, attempting to engage in, or soliciting another to engage in a homosexual act or acts; A STATEMENT BY THE SERVICE MEMBER that he or she is a homosexual or bisexual, or words to that effect; or marriage or attempted marriage to a person known to be of the same biological sex. …”

    In other words: “status” [orientation] alone equals “homosexual conduct,” unless the servicemember can prove a “negative”: that he or she will NEVER engage in literal homosexual acts. Pray tell, how does one do that?

    2. Further, by asserting, “moreover, that conduct which is disclosed to armed forces personnel,” you apparently are one of those who unfortunately believe the myth that “don’t tell” only means “don’t tell anyone in the military.”

    “Under ‘Don’t Tell’, gay service members face discharge if they disclose their sexual orientation. Prior to the passage of the law, the ‘Don’t Tell’ provision was promised to only target public declarations of sexual orientation. Lawmakers made assurances that service members would be left alone as long as they kept their orientation a ‘personal and private’ matter. As the law has been implemented, however, there is no real privacy for service members. If a military commander finds out that a service member under his/her command has confided his/her sexual orientation to anyone–from online profiles to parents, ***psychologists or chaplains–the service member will likely face discharge. Being out to anyone, anywhere and at anytime can result in discharge.”SERVICEMEMBERS LEGAL DEFENSE NETWORK • SURVIVAL GUIDE.

    ***Prior to March, there were only two exceptions: revelations to a military defense attorney, and, after an Executive Order by President Clinton, to security clearance investigators. The March revisions added chaplains and medical/mental health personnel.

    3. Finally, you willingly confuse most courts having accepted a priori the military’s CLAIM that gays negatively impact the military with timeless “fact” and, therefore, Constitutional exception.

    Were that true, slavery via Dred Scott v. Sandford and civil sodomy laws via Bowers v. Hardwick would still be “constitutional.”

    Again, the bottom line is that, being human, judges are no less susceptible to temporal, non-empirical perspectives of “moral, therefore legal ‘right'” than non-judges, and Judge Phillips has just as much authority to assert her opinion that DADT is unconstitutional as other judges did the policy version of the ban such as Judge Hatter in the 1993 Keith Meinhold challenge.

    And just as much authority as the 9th Circuit judges in Witt, who, in the words of the ACLU: “emphasized that generalized or hypothetical assertions about the impact of gay and lesbian service members would not be sufficient.”

    “Under this review, we must determine not whether DADT has some hypothetical, post hoc rationalization in general, but whether a justification exists for the application of the policy as applied to Major Witt. This approach is necessary to give meaning to the Supreme Court’s conclusion that ‘liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex’. Lawrence, 539 U.S. at 572. …

    The Air Force attempts to justify the policy by relying on congressional findings regarding ‘unit cohesion’
    and the like, but that does not go to whether the application of DADT specifically to Major Witt significantly furthers the government’s interest and whether less intrusive means would achieve substantially the government’s interest. Remand therefore is required for the district court to develop the record on Major Witt’s substantive due process claim. Only then can DADT be measured against the appropriate constitutional

    The issues posed by this case might generate great concern
    both from those who welcome Major Witt’s continued participation in the Air Force and from those who may oppose it. Those issues must be, and have been, addressed in the first instance by leaders of the military community and by those in Congress with law-making responsibilities. All of Congress’s laws must abide by the United States Constitution, however. Taking direction from what the Supreme Court decided in Lawrence and Sell, we hold that DADT, after Lawrence, must satisfy an intermediate level of scrutiny under substantive due
    process, an inquiry that requires facts not present on the
    record before us.” – Judge Ronald M. Gould, for the Ninth Circuit Court of Appeals, MARGARET WITT v. DEPARTMENT OF THE AIR FORCE et al.

  • Brutus

    @Michael @

    1. So, despite your statement that my characterization is “WRONG!,” it’s not, as ably demonstrated by your quotations. It’s right there in the plain language of the regulation. As Judge Luttig said, the distinction between status and orientation is difficult to draw. But that is the goal. One could, for example, account for all of one’s time with reliable sources and demonstrate a lack of opportunity. Or, as has been acceptable before in the Navy, one could submit a sworn statement.

    2. Actually, I used the passive voice for a reason. In talking to others or making information public, you risk that someone will turn informant and disclose it to enforcement officials, or that the officials will discover it. This may result in the chilling of some speech, but that doesn’t make it unconstitutional where it’s otherwise justified.

    3. Dred Scott, you may recall, was directly overturned by the first clause of Section 1 of the Fourteenth Amendment. Bowers v. Hardwick, as the Court recognized in Lawrence, turned on a ludicrously narrow definition of privacy, itself an amorphous and doctrinally questionable concept. But those are cases about civil life and have limited effect here. And the reason Witt remanded for development of actual facts is because, as your own quote shows in a section you haven’t highlighted, it’s an as-applied challenge; specific facts of the particular situation are necessarily required. Log Cabin Republicans v. United States is a facial challenge, and it is not within the judicial purview to declare a law facially unconstitutional because she thinks it “morally wrong.” Under Supreme Court precedent, the armed forces’ professional determination that something is harmful to unit cohesion, morale, and readiness counts as fact in the analysis until the armed forces (or Congress) say otherwise.

  • Michael Ejercito


    It is an important distinction because DADT even prohibits servicemen from revealing a homosexual orientation to others while off duty. This is not to say that DADT is necessarily unconstitutional as applied to such cases, only that the distinction is something to consider.

  • Brutus

    @Michael Ejercito: Fair enough. I think there’s a very strong case for as-applied challenges to off-base communications, as in Witt, and especially private ones.

  • Michael Ejercito

    In that same vein, a facial challenge must fail. If nothing else, there is no possible constitutional violation in applying DADT to cases involving sodomy up and down the chain of command.

  • Michael Ejercito


    I should also add that there were allegations of adultery in the Witt case. That could change the dynamic if the allegations are accepted as fact.

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