On December 22, 2010 our country got the best Christmas gift we ever could have asked for. President Obama signed into law the repeal of Don’t Ask Don’t Tell. Before he signed the bill Obama told gays and lesbians, “Your country needs you, your country wants you, we will be honored to welcome you into the ranks.”1 This moment wasn’t just a win for the over 14,000 gay and lesbian service members who were discharged under the law2, it wasn’t just a win for the LGBT community, this was a triumph for our entire country. This takes our great nation one step closer to equality, the very principle our country was founded on.
Despite the success, controversy still surrounds the Don’t Ask Don’t Tell Law. In an interview with Visiting Assistant Professor at the University of Illinois College of Law Dara Purvis, I asked Professor Purvis how a law that is considered unconstitutional could stand for so long.
“In the realm of unconstitutional laws, this isn’t that old. This isn’t even 20 years old. Don’t Ask, Don’t Tell was passed in 1993 and at the time it was considered a compromise liberal move. We certainly have found a lot of laws, that have lasted a lot longer than that, unconsitutional.”6
I found that to be shocking. As a future lawyer and hopefully JAG officer, this topic struck my interest. In this post I’d like to take a closer look at the constitutional implications of the law.
Don’t Ask Don’t Tell was never ruled on by the Supreme Court, however lower federal courts have ruled on the constitutionality of the law on a few different occasions. For so many years, the lower federal appellate courts stood by DADT3. But in recent years that has changed. On September 9, 2010 Judge Virginia Phillips of California decided that DADT violated the First and Fifth Amendments, issuing an injunction barring the enforcement of the law4. Although a stay was later issued on the injunction, this verdict was considered a major step in the repeal process.
In her 86-page decision, Judge Phillips detailed her opinion in Log Cabin Republicans v. Gates. The Log Cabin Republicans believed that DADT violated the due process clause of the Fifth Amendment. Judge Phillips used the heightened scrutiny test used in Witt v. Department of Air Force as the standard for review: DADT needed to “[1] advance an important governmental interest, [2] the intrusion must significantly further that interest, and [3] the intrusion must be necessary to further that interest.”4 (Emphasis added.) Due to unit cohesion and military readiness, Judge Phillips noted that DADT satisfied the first standard. As for the second and third standard, Judge Phillips found that the law does not “significantly further” the government’s interest in military readiness and unit cohesion. She states, “In fact, Defendants have admitted that, far from being necessary to further significantly the Government's interest in military readiness, the Don't Ask, Don't Tell Act actually undermines that interest.” She goes on to quote President Obama, the Commander in Chief of the Armed Forces.4 Judge Phillips concludes that the Defendants do not satisfy their burden of the Witt standard and therefore, violates the due process clause of the Fifth Amendment.
During the trial, the Log Cabin Republicans contended that DADT was a content-based regulation, violating the First Amendment. The DADT act states that service members will be discharged if the service member “has stated that he or she is a homosexual or bisexual, or words to that effect…” (10 U.S.C. § 654). In her decision, Judge Phillips goes on to compare homosexual and heterosexual standards: “Heterosexual members are free to state their sexual orientation, "or words to that effect," while gay and lesbian members of the military are not. Thus, on its face, the Act discriminates based on the content of the speech being regulated.”4 This to me is a clear content-based regulation. How can it be that some service members are allowed to discuss their sexuality, but others cannot?
Kathryn Ward in the Georgetown Journal of Gender and the Law discusses the First Amendment and content-based regulation. Ward explains that the restriction is reviewed with strict scrutiny: it must have a compelling governmental interest, it must be narrowly tailored and it must be the least restrictive means possible.5 The First Amendment protects the government from regulating discussion on particular viewpoints and topics as a whole. The government also cannot restrict specific messages, ideas, subject matter and contents. In Don’t Ask Don’t Tell, that is clearly what is occurring. While some service members can discuss their sexuality, others cannot. Any discussion about homosexuality and homosexual activity is exclusively banned.
Based on testimony and research, Judge Phillips found that the Act’s restriction was too broad and hinders military readiness instead of helping it. It is clear to me that the law is not narrowly tailored. Service members were not allowed to discuss their homosexuality at any time, at any place with their colleagues, leaving DADT to be too broad of a restriction. Furthermore, the act hurts military readiness and unit cohesion, not helps it. How can service members trust each other if they think their colleagues are lying to them? DADT undermines military readiness and definitely does not “significantly further” the government’s interest. Judge Phillips decided: “For these reasons, Plaintiff is also entitled to judgment on behalf of its members on its claim for violation of the First Amendment’s guarantees of freedom of speech and petition.”4
I have to agree with Judge Phillips. After reading nearly every page of her opinion, it is clear to me that Don’t Ask Don’t Tell is unconstitutional, violating the First and Fifth Amendment. Even though I believe in equality for everyone, that is not the only reason I agree here. If everyone would put aside their personal, religious and outside beliefs and look at the facts here, it becomes understandable that DADT violates our rights stated in the Constitution. For that reason, I believe Congress made the right decision to repeal the discriminatory Don’t Ask Don’t Tell law.
Primary Sources:
3http://www.defense.gov/home/features/2010/0610_gatesdadt/DADTReport_FINAL_20101130(secure-hires).pdf
6Interview I conducted with Professor Dara Purvis of the College of Law
Other Sources:
· http://www.archives.gov/exhibits/charters/bill_of_rights_transcript.html
Below is a story I did in the midst of the DADT controversy last semester:
People interviewed included Nate May, former Army Sgt. and Dara Purvis, University of Illinois Law Professor.
Below is a story I did in the midst of the DADT controversy last semester:
People interviewed included Nate May, former Army Sgt. and Dara Purvis, University of Illinois Law Professor.
Toni,
ReplyDeleteI found your post incredibly interesting. I’ve been following “Don’t Ask Don’t Tell” in the news, but few news sources have presented it with the legitimate legal opinions you provided here, especially with regard to Judge Philips’ opinion. While I always had this sort of subconscious knowledge of it being a First Amendment issue, the content-based regulation concept made the issue so much clearer, especially considering the previous considerations we learned last semester in Law and Communications.
I would say that I absolutely agree with both your opinion and, hence, Judge Philips’ as well in terms of the regulation of speech based on content- specifically, anyone who is gay was banned from discussing their sexuality in even the vaguest of ways. Like you pointed out, whether you personally agree with the practice or not, “Don’t Ask Don’t Tell” violates the rights given to all under the Constitution. I do think it is important, however, to touch on a point you made in the beginning in terms of how unconstitutional practices can continue for so long. I find it very interesting that the Declaration of Independence in time of revolution as a document of higher thinking and an advanced society, affording equal rights to all members of the state. Just a few years later though, the Constitution was written, which limited those equalities to exclude African Americans, women and others. In a modern world where many of those wrongs have at least begun to be corrected, I think it’s a great step in our society for “Don’t Ask, Don’t Tell” to be repealed as well in hopes of providing equality to one more group in our society.
I think the Don't Ask, Don't Tell repeal and the controversy surrounding its unconstitutionality is just an example of how much religion and personal conviction clouds our judgment. To me it's the same kind of rhetoric that kept biracial marriage taboo for so many years, that kept women and minorities from having the right to vote, that still keeps gays from getting married.
ReplyDeleteIf you examine the arguments for and against Don't Ask, Don't Tell, it's obvious that many of the repeal's opponents are simply unable to come up with constitutional support for their arguments. Quoting Bible verses or trying to impose your idea of "moral decadence" on others simply because you disagree is not constructing a legally sound argument. It's discrimination, plain and simple.
This goes for all of the legal arguments people attempt to make using Biblical passages or religious convictions. I admire this country's steps to move toward the separation of church and state, and it is arguments like the ones against Don't Ask, Don't Tell that remind me that challenges are still out there.
I think it's also interesting to examine the passage and repeal of laws such as these overtime as a clear indicator of what was popular with the American public, Congress or the courts at the time. Clearly the tastes and preferences of not only the public, but the government have evolved.