In 2004, the Log Cabin Republicans, a national gay and lesbian non-profit organization, brought an action against the United States and Secretary of Defense consisting of a facial challenge to the “Don’t Ask, Don’t Tell” statute (10 U.S.C. § 654) and its implementing regulations. The federal District Court for the Central District Court of California heard arguments on the case this past July.
Judge Virginia A. Phillips held that “Don’t Ask, Don’t Tell” is unconstitutional on September 9th. Judge Phillips has now ordered that the United States military cease enforcement of this policy.
“Don’t Ask, Don’t Tell” was signed into law in 1993 by President Clinton. This law allows for service members to serve in the military, regardless of their sexual orientation, providing that they do not tell others that they are homosexual and do not engage in homosexual acts.
Plaintiffs in the case argued that the “Don’t Ask, Don’t Tell” violated the service members’ right to due process under the Fifth Amendment and restricted free speech rights under the First Amendment. Judge Phillips agreed, finding that “Don’t Ask, Don’t Tell” infringed upon the fundamental rights of service members.
Under the heightened scrutiny test applied by Judge Phillips, the defendants failed to meet their burden of showing that the policy was necessary to significantly further important government interests of military readiness and unit cohesion. Additionally, “Don’t Ask, Don’t Tell,” challenged as an overbroad content-based speech restriction, did not survive First Amendment scrutiny because the government could not show that the regulation survived even the deferential review applied to speech in a military context. Judge Phillips wrote that the restriction under “Don’t Ask, Don’t Tell” on speech is “more than is reasonably necessary to protect the substantial government interest.”
The facial challenge of the Don’t Ask Don’t Tell law allowed Judge Phillips to invalidate the statute and provide broad injunctive relief. Although the defendants argued to keep some parts of the law in place, Judge Phillips found that the “unconstitutional nature of the Act permeates the entire statute. Thus, total invalidation is the narrowest remedy available for the relief sought here.” Judge Phillips permanently enjoined the United States and the Secretary of Defense from enforcing or applying the policy.
In addition, she ordered that any “investigation, discharge, separation, or other proceeding” executed under the policy be suspended and discontinued, immediately. Phillips has also granted the Log Cabin Republicans the right to apply for attorney’s fees under the Equal Access to Justice Act, 28 U.S.C. § 2412 and to file a motion for the costs of the suit.
It is unclear whether the Justice Department will appeal the October 12th injunction or the district court’s ruling on the constitutionality of “Don’t Ask, Don’t Tell.” However, President Obama has said in the past that he opposes the policy.