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Secretary Gates (left) and Adm. Mullen (AP/Gerald Herbert)

Half-hearted?

Military | A federal judge declares 'Don't Ask, Don't Tell' unconstitutional but criticizes the government's defense of the policy

Federal Judge Virginia Phillips, a Bill Clinton appointee, ruled Thursday that the "Don't Ask, Don't Tell" (DADT) law is unconstitutional and issued an injunction barring its enforcement. The law forbids members of the military from openly engaging in homosexual conduct. Those who acknowledge homosexuality had been discharged.

The Obama administration opposes DADT, but because it is established law the Justice Department had to defend it when the Log Cabin Republicans, a gay-rights group, challenged the law's constitutionality.

The judge, in her 85-page opinion, indicated that the Justice Department lawyers had put forth a weak effort.

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"Defendants called no witnesses, put on no affirmative case, and only entered into evidence the legislative history of the act," she wrote. The legislative history did not show how the DADT law contributed to "military readiness and unit cohesion," she wrote.

According to the ruling, the current law violates the First Amendment, covering military members' free speech, and the Fifth Amendment, covering their rights to due process.

Mark Jumper, a retired Navy chaplain now living in Waukegan, Ill., who is worried about how the reversal will impact chaplains, said he is not surprised by the ruling or by the government's weak defense.

"This is an example of the disconnect that exists between Washington and the American voter," he said. "They are making decisions to push a social agenda and not to respect the rule of law."

The government could appeal the decision to the 9th U.S. Circuit Court of Appeals. If it appeals, it will likely ask for a temporary injunction so the law will continue to be in force while the appeals process takes its course.

But the ruling follows promises by Democratic lawmakers that repealing the policy will be one of their top goals when they return from their month-long recess next week. This effort to appeal to left-leaning voters ahead of November's elections highlights to Jumper the importance of the midterm elections.

The House of Representatives has already voted to repeal the law, but a similar measure is still awaiting a vote in the Senate. The chairman of the Joint Chiefs of Staff, Adm. Mike Mullen, has openly supported a change. Defense Secretary Robert Gates is awaiting a review of how a repeal would affect the military's performance. All the military's service chiefs argued that the law on homosexuality in the military should not be changed.

In recent months, the Justice Department has also defended the Defense of Marriage Act (DOMA), which defines marriage as between a man and a woman and thus prohibits federal benefits to same-sex partners, earning the Obama administration criticisms from gay-rights groups. A federal judge in Massachusetts ruled against the Justice Department in July, writing that DOMA contains unconstitutional provisions concerning equal protection. While the president hasn't said whether he believes the law is constitutional, the Justice Department has called it "discriminatory" even as it defends it as established law.
Edward Lee Pitts, who recently covered this issue in WORLD Magazine (see "Speaking out," July 17, 2010), contributed to this report.

Emily Belz
Emily Belz

Emily, who has covered everything from political infighting to pet salons for The Indianapolis Star, The Hill, and the New York Daily News, reports for WORLD from New York City. Follow Emily on Twitter @emzleb.

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