Those activist California judges can't seem to stop calling out discrimination whenever it comes before them. As of late yesterday, add "Don't Ask, Don't Tell" to the list, which was ruled unconstitutional by one such judge.
And as in the case against Proposition 8, that whole "evidence" thing can be so inconvenient when you're trying to deny gay people rights.
In her ruling, Judge Virginia A. Phillips agreed with the Log Cabin Republicans that the policy violated the First and Fifth Amendment rights (to free speech and due process) of gay service members, and saw no evidence that there was any relation between the policy and military preparedness — except a negative one. She wrote,
The don't ask, don't tell act infringes the fundamental rights of United States service members in many ways," she wrote. "In order to justify the encroachment on these rights, defendants faced the burden at trial of showing the don't ask, don't tell act was necessary to significantly further the government's important interests in military readiness and unit cohesion. Defendants failed to meet that burden."
Phillips also issued an injunction against enforcement of the policy, but it will "probably be stayed pending appeals," according to the Times.
It's the first time a judge has ruled against Don't Ask, Don't Tell since it was passed in 1993. The case was brought by the Log Cabin Republicans in a federal court in California, and included the testimony of several discharged service members (including one who wrote letters to his partner in Portuguese in order to escape notice — a failed plan). The Obama Justice Department defended the law by calling no witnesses and simply showing that Congress enacted it according to the correct processes. President Obama officially opposes the act, but has put the burden on Congress to overturn it.
A bill that included the repeal of the rule passed the House in May but has stalled in the Senate. The Pentagon is currently conducting a House-mandated study on whether gays not hiding a major part of their lives would affect military readiness.
Cue the Family Research Council and its grumblings about judicial activists:
"It is hard to believe that a District Court-level judge in California knows more about what impacts military readiness than the service chiefs who are all on record saying the law on homosexuality in the military should not be changed."
Well, actually.... here is Admiral Mike Mullen, chairman of the Joint Chiefs Of Staff, on the policy in February:
"I cannot escape being troubled by the fact that we have in place a policy that forces young men and women to lie about who they are in order to defend their fellow citizens. For me, personally, it comes down to integrity — theirs as individuals and ours as an institution."
Sounds about right.