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Federal Judge Rejects DADT on Constitutional Grounds

Despite the recent failure of the U.S. Congress to repeal the military’s ban on openly gay and lesbian service members, the move by a federal court judge to strike down the law on constitutional grounds is expected to move forward.

On September 22, the U.S. Senate failed to gain the 60 votes necessary to break a filibuster on a bill which included a repeal of the military’s “Don’t Ask, Don’t Tell” (DADT) policy.  The ban prohibits the military from asking about the sexual orientation of its service members. Those who are discovered engaging in homosexual activity, even in their own homes, can be dishonorably discharged with a commensurate reduction or denial of military benefits.

Aubrey Sarvis, an Army veteran and executive director of the Servicemembers Legal Defense Network, a national legal services and policy organization dedicated to ending DADT, expressed his frustration about the bill’s failure.

“Let’s be clear: opponents to repealing ‘Don’t Ask, Don’t Tell’ did not have the votes to strike those provisions from the bill,” he said. “Instead, they had the votes for delay.”

The Senate can still schedule a vote on the bill in December, after the elections end.

In her ruling early in September, U.S. District Judge Virginia Phillips said DADT violates the First and Fifth Amendment rights of gays and lesbians, and has a “direct and deleterious effect” on the military because it discharges service members who have developed valuable skills.  She also said the ban has hurt recruiting by driving away gay and lesbian people.

The Log Cabin Republicans, which had requested the injunction in 2004, said more than 13,500 service members have been fired since 1994.

American Veterans for Equal Rights, a nonprofit organization that provides resources for LGBT service members and veterans, as well as their straight counterparts, immediately showed its support for the decision when it was announced.

“As proud veterans of the U.S. military, AVER strongly supports the repeal of DADT,” said Danny Ingram, national president of AVER, in a press release, “not only because repeal is the right thing to do, but because the policy damages the military and places the lives of service members in jeopardy by removing mission-critical skills from the battlefield.”

Phillips is expected to work with the Log Cabin Republicans to draft the injunction. The U.S. Justice Department, which defended the policy, will have one week from that point to respond by accepting the decision or appealing it.

According to the Associated Press, government attorney Paul G. Freeborne argued during the trial that the policy debate was a political issue that should be decided by Congress. He claimed the plaintiffs were trying to force the court to strike down the policy while it was being debated.

Denny Meyer, a veteran and spokesperson for AVER, said that although President Obama’s government prefers that Congress repeal the ban, the president would be better served by allowing the judgement to stand.

“I think it would be terribly clever not to challenge [the decision] because it gets Congress off the hook,” he said. “Seventy-eight percent of Americans, including Republicans, think the ban should end. When it comes to marriage, that’s another issue, but for this, the majority of Americans are together on this.”

Meyer said the allegation by some opponents that the United States military would be degraded by allowing openly gay service members in its ranks is not based on reality.

“These soldiers are professionals, and it’s an insult to imply otherwise,” he said.  “These people have trained together, fought together, and saved each other’s butts.  In the ’60s we had this argument, and Barry Goldwater, a presidential candidate, said ‘You don’t have to be straight to shoot straight.’” — Josef Molnar.

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