RIVERSIDE – For the second time this year in California, a federal judge has ruled against discriminatory policies directed at gays and lesbians.
Late yesterday, U.S. District Court Judge Virginia Phillips, who was a 1999 Clinton appointee, declared that the Clinton-era “Don’t Ask, Don’t Tell” (DADT) policy violates the First and Fifth Amendments, and said she would issue an injunction ordering the government to stop enforcing the policy. She gave a Sept. 16 deadline for plaintiffs’ attorneys to submit proposed language for a preliminary injunction and gave the government a week after that to raise objections.
No matter what, the landmark ruling will likely be appealed to the Ninth Circuit U.S. Court of Appeals in San Francisco.
The same appeals court will be taking up another milestone case in December, the appeal of Judge Vaughn Walker’s ruling that California’s Proposition 8 that bans same-sex marriage is unconstitutional.
Judge Phillips’ stunning ruling late Thursday afternoon brought DADT back into the national limelight just in time for the election campaign season.
President Barack Obama had declared during his State of the Union speech in January that he wanted the discriminatory policy repealed.
The House, which got bogged down with the fight over health-care reform, finally voted on May 27 to repeal DADT.
The more conservative Senate, meanwhile, has been dragging its feet on the issue. Instead of taking up DADT soon after the House vote, the Senate has put the debate on the back burner.
Judge Phillips’ ruling could possibly force the Senate to weigh in on the matter.
Meanwhile, as gay rights advocates and allies celebrate the historic ruling, the Servicemembers Legal Defense Network (SLDN) issued a warning to gays and lesbians who are serving in the military: “DO NOT COME OUT!”
SLDN reminds servicemembers that DADT is still the law and that they can still be discharged under that policy.
As an activist organization, SLDN sees some good in the ruling.
“We’re pleased by the judge’s decision, but this decision is likely to be appealed and will linger for years. Congress made the DADT law 17 years ago and Congress should repeal it. The Senate will have the opportunity to do just that this month and most Americans think the Senate should seize it,” said Aubrey Sarvis, executive director of the SLDN.
Servicemembers United, the nation’s largest organization of gay and lesbian troops and veterans, hailed the news.
“This is an historic moment and an historic ruling for the gay military community and for the readiness and integrity of our armed forces,” said Alexander Nicholson, executive director of the group and a former multi-lingual U.S. Army interrogator who was discharged under DADT.
“As the only named injured party in this case, I am exceedingly proud to have been able to represent all who have been impacted and had their lives ruined by this blatantly unconstitutional policy. We are finally on our way to vindication.”
The lawsuit seeking to halt the military’s DADT policy, which prevents gays and lesbians from serving their country openly, was filed by the Log Cabin Republicans. The gay political group set the groundwork for the lawsuit in 2004.
“This is a major victory in the fight for equality and means that military service will be available to all Americans, regardless of their sexual orientation,” Dan Woods, lead attorney for the case, told the Washington Post.
R. Clarke Cooper, the new executive director of Log Cabin Republicans, was please with the ruling.
“As an American, a veteran and an Army reserve officer, I am proud the court ruled that the arcane ‘Don’t Ask, Don’t Tell’ statute violates the Constitution. The ruling is not just a win for Log Cabin Republican service members, but all American service members,” Cooper said.
Dan Woods, lead attorney for the case and partner at White & Case, was equally thrilled.
“We are delighted with the court’s ruling in favor of Log Cabin Republicans in this important case. The court’s opinion finds that ‘Don’t Ask, Don’t Tell’ is unconstitutional, and the court will issue a permanent injunction preventing the government from further enforcement of this unconstitutional statute,” Woods said.
“This is a major victory in the fight for equality and means that military service will be available to all Americans, regardless of their sexual orientation.”
Rick Jacobs, founder and chairman of the Courage Campaign, applauded the ruling.
“[The] ruling is not just a victory for the LGBT community, but for our military, our security, and for U.S. taxpayers. Asking soldiers to lie about who they are destroys the trust on which an effective fighting force is reliant, and discrimination of any kind undermines the values that generations of Americans — including LGBT Americans — have fought and died to defend. We thank and congratulate the Log Cabin Republicans for their tremendous work in prosecuting this case. It is our hope that the Senate will act quickly to repeal this failed policy, so that we can avoid a lengthy and costly appeals process, and get on with the business of ensuring all patriotic Americans are able to serve our country with honor and dignity.”
Joe Solmonese, president of the Human Rights Campaign, said the ruling puts gays and lesbians one step closer toward full equality.
“[Yesterday] a federal judge affirmed what the vast majority of the American people know to be true – that it’s time for the discriminatory ‘Don’t Ask, Don’t Tell’ law to be sent to the dustbin of history. With this legal victory in hand, Congress is right now in a perfect position to strengthen our national security by ending a law that has discharged thousands of capable service members. With House passage already secured, the Senate can and should vote in the next few weeks to repeal ‘Don’t Ask, Don’t Tell’ and allow every qualified man and woman the chance to serve with honor.”
DADT activist Dan Choi make a personal appeal via the Courage Campaign.
“I commend Judge Virginia Phillips, Alex Nicholson and the Log Cabin Republicans for their firm stance in defense of the First Amendment and their unwavering support of our national security. Judge Phillips has forthrightly exercised her unquestionable moral authority and lived up to her mandate to defend our Constitution.
“Sen. [Harry] Reid is not the only elected official who needs to follow the leadership of Judge Phillips. So does President Obama,” Choi wrote.
“I implore President Obama and his Justice Department NOT to appeal the ruling by Judge Phillips. Like Governor Arnold Schwarzenegger and Attorney General Jerry Brown did by refusing to defend Prop. 8 in California, the president and the DoJ [Department of Justice] can refuse to appeal this DADT ruling. They can refuse to lift a finger and not waste any energy, statements, or money defending ‘Don’t Ask, Don’t Tell’ in the courts,” Choi said.
“No matter what President Obama does, we need to keep up the pressure on Sen. Reid to keep his promise to repeal DADT in the legislative branch. Please click follow the link below to sign my letter asking Sen. Reid to bring the Defense Authorization bill to the floor for a vote the week of Sept. 20 — the last opportunity the Senate will have to repeal DADT before the November election: www.couragecampaign.org/KeepThePromise.”
Further reading on the case