Illegal to Base Military Discharge on Sexual Orientation, Judge Rules

A California district court ruling that the military's “Don't Ask, Don't Tell” (DADT) policy regarding gays in the military is unconstitutional has roiled debate about the policy and added momentum to a movement to repeal it.

The September 9 ruling by Judge Virginia Phillips of the U.S. District Court for the Central District of California was issued two weeks before a Department of Defense appropriations bill was scheduled to come before the Senate containing a provision to repeal the policy. But on September 21, Senate Democrats failed by four votes to muster the necessary 60 votes to overcome a filibuster by Republicans blocking the bill and the repeal provision, as well as a number of other Democratic priorities tacked on to the bill.

(The New York Times reported that same day that some Republican senators said they would consider voting for repeal later in the year when the military completes a study of the effects of repeal ordered by Secretary of Defense Robert Gates.)

In her decision, Phillips wrote, “The Don't Ask, Don't Tell Act infringes the fundamental rights of United States service members in many ways. It denies homosexuals serving in the Armed Forces the right to enjoy ‘intimate conduct’ in their personal relationships. The Act denies them the right to speak about their loved ones while serving their country in uniform; it punishes them with discharge for writing a personal letter, in a foreign language, to a person of the same sex with whom they shared an intimate relationship before entering military service; it discharges them for including information in a personal communication from which an unauthorized reader might discern their homosexuality.”

The suit was brought against the government and Gates by the Log Cabin Republicans, a group of gay Republicans.

The DADT policy was instituted in 1993 under the Clinton administration restricting the U.S. military from efforts to discover or reveal closeted gay, lesbian, and bisexual service members or applicants, but barring those who are openly gay, lesbian, or bisexual from military service.

The Obama administration has opposed the policy while saying it is the responsibility of Congress to repeal it, and in February, Gates—along with Adm. Mike Mullen, chair of the Joint Chiefs of Staff—told the Senate Armed Services Committee that Congress should repeal DADT. It was at that time that Gates and Mullen proposed the study group to examine issues associated with repealing the policy (Psychiatric News, March 5).

APA, AMA Seek Repeal

APA has explicitly called for repeal of the policy, and at last year's Interim Meeting of the AMA's House of Delegates, the AMA voted with little debate to advocate for repeal (Psychiatric News, December 18, 2009).

“The hiding and lying that gay service members are required to do under the policy is damaging to people's mental health,” said psychiatrist Mary Barber, M.D., an APA member and past president of the Association of Gay and Lesbian Psychiatrists, in an interview with Psychiatric News following the court's decision.

Barber said the matter of a person's sexual orientation is bound to come up in all sorts of routine ways, such as the choice of whether to list a partner as an emergency contact, which can place service members in potentially compromising positions. And she said it invariably is a subject that arises in clinical situations, so that the policy has disrupted the doctor-patient relationship.

(Barber noted that in March, following the meeting with the Senate Armed Services Committee, Gates ordered revisions to the DADT policy exempting some categories of confidential information—including information provided to psychotherapists—from being used to discharge service personnel.)

Conservative groups responded with equal fervor to the court's decision. Tony Perkins, president of the Family Research Council, said in a statement, “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. 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.”

In fact, Mullen was explicit in his testimony before the Senate Armed Services Committee in April that he opposed DADT. “[S]peaking for myself and myself only, it is my personal belief that allowing gays and lesbians to serve openly would be the right thing to do,” he said. “No matter how I look at this issue, I cannot escape being troubled by the fact that we have in place a policy which forces young men and women to lie about who they are in order to defend their fellow citizens.”

Discharges Drop Since Fighting Begins

How the court's decision will affect the DADT policy is uncertain and depends on a number of fluid variables, including whether the government will choose to appeal the decision. At press time, a press officer for the Justice Department told Psychiatric News that a decision to appeal was still under consideration.

John Davidson, legal director for Lambda Legal—a gay legal-rights organization that welcomed the court's decision—said there is some legal question about the extent to which a district court ruling can be applied outside the court's specific jurisdiction.

In response to that question, Dan Woods, the attorney representing the Log Cabin Republicans in the case, said simply, “We think it can.” He added, “Our view is that the decision should prevent the government from enforcing or applying the policy in the future wherever it is in force.”

He said the Log Cabin Republicans chose to file suit in Los Angeles because there are affected service members and military bases in the area. “We are happy to strike this blow for equality so that all Americans who have been fighting to protect our rights will have their own constitutional rights observed.”

In their suit, the Log Cabin Republicans put forward several case histories of service members who performed at a very high level in combat and who were widely praised by superiors and subordinates alike, but who either left the service voluntarily or were forced to do so because their sexual orientation became known.

Interestingly, the group also presented evidence that the number of service members discharged under DADT had fallen substantially in the period since fighting began in Afghanistan and Iraq, compared with previous years since establishment of the policy. From 1994 to 2001, 7,856 service members were discharged under the policy, while from 2002, when fighting began, to 2009, 5,167 were discharged, according to the plaintiffs. From 2001 to 2002 alone, the figure dropped from 1,227 to 885.

In her ruling, Phillips said the evidence contradicted the prevailing belief that homosexuals in the military compromise military readiness.

“Defendants' discharge of homosexual service members pursuant to the Act not only has declined precipitously since the United States began combat in Afghanistan in 2001, but Defendants also delay individual enforcement of the Act while a service member is deployed in a combat zone,” she wrote. “If the presence of a homosexual soldier in the Armed Forces were a threat to military readiness or unit cohesion, it surely follows that in times of war it would be more urgent, not less, to discharge him or her, and to do so with dispatch. The abrupt and marked decline—50 percent from 2001 to 2002 and steadily thereafter—in Defendants' enforcement of the Act following the onset of combat in Afghanistan and Iraq, and Defendants' practice of delaying investigation and discharge until after combat deployment, demonstrate that the Act is not necessary to further the Government's interest in military readiness.”

Phillips's ruling in the case, Log Cabin Republicans v. United States of America and Robert M. Gates, Secretary of Defense, is posted at <www.cacd.uscourts.gov>.