Friday, September 10, 2010

Big news from the courts

There's a big court decision today. Of course, it's only a District Court decision, but it's one more blow against official discrimination on the basis of sexual orientation.

The subject this time is Don't Ask, Don't Tell, and the case is a facial challenge to the federal law. The fact that it's a facial challenge is important: the plaintiffs' position is not that the policy is unfair or invalid as applied to them, but that there is no conceivable way that the policy could be interpreted or applied to survive a constitutional challenge. The District Court agrees.

It's a longish decision, and I haven't read it fully yet, but here are the highlights of the court's reasoning:

1. DADT does not significantly advance the government interest in military preparedness and unit cohesion. (pp. 48-74) While these are legitimate concerns, the court concludes that any claims that gays in the military impede preparedness and unit cohesion are based on assumptions, and that every attempt to actually study the question has concluded that there is no factual basis to the claim.

Foremost among the Rand Report's conclusions is that no empirical evidence exists demonstrating the impact of an openly homosexual
servicemember on the cohesion of any military unit.

Dr. Korb testified before the Senate Armed Services Committee on
March 31, 1993 concerning the likely impact on unit cohesion if homosexuals
were permitted to serve openly. According to Dr. Korb, there was no
empirical research to support the view that homosexual servicemembers
would disrupt unit cohesion, and that such evidence could not be obtained
without integrating homosexuals into the military.

In fact, the court finds that not only does DADT not contribute to preparedness and unit cohesion, it actually harms military preparedness by causing the loss of qualified service members, many in critical specialties, by creating additional burdens and costs of recruitment, and by forcing the military to recruit less well-qualified personnel to make up for gays and lesbians who are prevented from serving.

2. DADT infringes on service members' First Amendment rights. (pp. 74-85.) Again, the court rules in favor of the plaintiffs, holding that they have First Amendment rights to freedom of speech, freedom of association, and the right to petition the government, that DADT infringes on these rights, that the infringement on these rights is based on the content of the speech (which subjects the infringement to the highest level of scrutiny, as, for instance, if a town government adopted an ordinance allowing Republicans but not Democrats to post campaign signs in town), and that these restrictions are broader than necessary to serve any legitimate government interest.

The conclusion is that the plaintiff, which in this case is the Log Cabin Republicans, is entitled to a declaratory judgment that Don't Ask Don't Tell violates the First and Fifth Amendments, and to a permanent injunction prohibiting the government from enforcing the policy.

There are many steps to go from here, starting with whether the government is going to appeal this decision. It can be a long way from a district Court to the Supreme Court. Still, as with recent marriage decisions, this is another showing that equality is on the march.

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Blogger Paul said...

Judging by the horror stories of how women are treated in the military, I'd expect gay soldiers to be persecuted, too. I'm not saying that the ban should remain in order to protect gay soldiers; I'm more making an indictment of the military in general. (It's a lot like sports that way - mindless, jingoistic America-First-ism at its worst.)

September 24, 2010 2:26 AM  

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