LOS ANGELES (BP)–A federal judge overturned the military’s “Don’t Ask, Don’t Tell” policy Sept. 9, ruling it violates the constitutional First and Fifth Amendment rights of homosexual military personnel.
It is the most significant legal threat to the policy in years, and it comes at a time when homosexual groups are pressuring the Senate to pass a bill repealing the policy prior to the November election. The policy prevents homosexuals from serving openly. The federal government is expected to ask the judge to stay her ruling and then to file an appeal to the Ninth Circuit, considered one of the more liberal appellate courts in the country.
The lawsuit was filed by attorneys for Log Cabin Republicans — a homosexual group — on behalf of several current or former homosexual service members.
Supporters of the current policy warn reversing it would have a negative impact in a number of areas, including religious freedom in the military.
In her 85-page decision, Judge Virginia Phillips, who is based in California, ruled the 17-year-old policy does not further military readiness or unit cohesion and actually harms recruitment and retention. She also said overturning the policy would not infringe on the privacy of heterosexuals in housing and bathrooms. Many military members have made exactly the opposite argument on each point. Phillips, a nominee of President Clinton, said the policy violates homosexual members’ constitutionally protected freedom of speech and association, freedom to petition the government, as well as their right to due process.
“Heterosexual members are free to state their sexual orientation, ‘or words to that effect,’ while gay and lesbian members of the military are not,” Phillips wrote. “Thus, on its face, the Act discriminates based on the content of the speech being regulated. It distinguishes between speech regarding sexual orientation, and inevitably, family relationships and daily activities, by and about gay and lesbian service members, which is banned, and speech on those subjects by and about heterosexual service members, which is permitted.”
Although Defense Secretary Robert Gates and Joint Chiefs of Staff Chairman Mike Mullen support overturning the policy, the chiefs of the Army, Navy, Air Force and Marines — all members of the Joint Chiefs of Staff — apparently are supportive of current law.
In February General James T. Conway, the Marine Corps Commandant and a Joint Chiefs member, told a Senate committee “the current policy works.”
“My best military advice to this committee, to the secretary and to the president would be to keep the law such as it is,” Conway said.
General George W. Casey Jr., the Army’s representative on the Joint Chiefs of Staff, told the committee he’s concerned about a reversal’s impact on military readiness.
“I don’t believe that it would increase readiness,” he said.
In May all four military chiefs urged Congress to allow the military to be surveyed on the issue before legislators vote on any bill that would overturn the policy. President Obama and Democratic leaders favored pressing ahead without waiting for the survey.
“This is a loony ruling, even for a federal district court judge in California,” said Richard Land, president of the Southern Baptist Ethics & Religious Liberty Commission. “She clearly has no understanding of the military and the special requirements of the military. The notion that she knows better than generals, officers and admirals who have been serving their country for 30 years or more is ludicrous on its face.”
Tony Perkins, president of the Family Research Council, agreed.
“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 the record saying the law on homosexuality in the military should not be changed,” Perkins, a former Marine, said in a statement. “Once again, homosexual activists have found a judicial activist who will aid in the advancement of their agenda. This is a decision for Congress that should be based upon the input of the men and women who serve and those who lead them.”
Log Cabin Republicans Executive Director R. Clarke Cooper called the policy “arcane” and said the ruling is a win for “all American service members.”
But supporters of the policy warn that reversing it will harm the military.
“The military lives in close quarters. Whenever you get a group … who are deployed, privacy goes out of the window. There are a lot of physical issues,” Benjamin Ratcliff, who is retired from the U.S. Army, said during a July event sponsored by the Family Research Council.
Perkins warned that reversing the policy will harm recruitment.
“Disproportionately, those who serve in the military come from conservative, even religious backgrounds,” Perkins said. “Even geographically, there’s a disproportionate number of people coming from conservative areas of the country.”
In April more than 40 retired military chaplains sent a letter to President Obama and Gates warning that the careers of many if not most military chaplains will end if the Don’t Ask, Don’t Tell policy is overturned. The letter warned that reversing the policy will negatively impact religious freedom and could even affect military readiness and troop levels because the military would be marginalizing “deeply held” religious beliefs.
Military chaplains, the retired chaplains said, “are integral to maintaining high morale.”
“Marginalizing a large group of chaplains, then, will unavoidably harm readiness by diminishing morale,” the letter said. “Similarly, making orthodox Christians — both chaplains and servicemen — into second-class Soldiers, Sailors, Airmen, or Marines whose sincerely held religious beliefs are comparable to racism cannot help recruitment or retention.”
Keith Travis, team leader of the chaplaincy evangelism team at the Southern Baptist North American Mission Board, signed the letter. A former chaplain in the U.S. Army and U.S. Army Reserves, he said the chaplaincy “as we know it today hangs in the balance.”
“It’s a critical juncture at this point for ministry and chaplaincy,” Travis told Baptist Press in April. “There are secondary and tertiary effects if this policy is overturned that will take place that people are not thinking about and they don’t even see at this point.”
Travis added, “It could limit our chaplains on what they could preach. Can they even preach about sin? Can homosexuality be called sin?”
The case is Log Cabin Republicans v. United States.
It is the third major federal court win for homosexual groups this year, following separate decisions overturning the federal Defense of Marriage Act and California Proposition 8.
“Seldom will you see a better argument for limiting lifetime appointments of federal judges and having some sort of retention vote on them after a certain period of time than this judge’s dangerous ruling,” Land said of the ruling on the military policy. “If it weren’t so dangerous, it would be farcical.”
Michael Foust is an assistant editor of Baptist Press.