Judge Orders Suspension of Gay Soldiers Discharge Under DADT For Real

In July Federal Judge Virginia Phillips issued a memorandum opinion barring the Pentagon from continuing to enforce Don’t Ask Don’t Tell; today her decision was made final, and the injunction is effective immediately. In September the government filed a brief arguing that, among other things, barring the enforcement of DADT would inhibit their ability to repeal DADT, but their appeal has been denied. This means that the DoD has to “suspend and discontinue any investigation, or discharge, separation, or other proceeding” related to the policy starting today. (@advocate)

It would be foolishly optimistic to assume that this decision is final/will go unchallenged; it is most likely still not safe for anyone in the military to come out and trust that they’ll keep their job indefinitely, but it looks like they might possibly have the reassurance of keeping it for, say, this week. Here’s the full text of Phillips’ decision; we’ll update you in more detail tomorrow.

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
This action was tried by Judge Virginia A. Phillips without a jury on July
13-16 and 20-23, 2010.  The Court filed a Memorandum Opinion on
September 9, 2010 (Doc. 232), and an Amended & Final Memorandum
Opinion, and Findings of Fact and Conclusions of Law, on October 8, 2010.
For all the reasons set forth therein, the Court:

(1) DECLARES that the act known as “Don’t Ask, Don’t Tell” infringes
the fundamental rights of United States servicemembers and prospective
servicemembers and violates (a) the substantive due process rights
guaranteed under the Fifth Amendment to the United States Constitution, and
(b) the rights to freedom of speech and to petition the Government for redress
of grievances guaranteed by the First Amendment to the United States
Constitution.

(2) PERMANENTLY ENJOINS Defendants United States of America
and the Secretary of Defense, their agents, servants, officers, employees,
and attorneys, and all persons acting in participation or concert with them or
under their direction or command, from enforcing or applying the “Don’t Ask,
Don’t Tell” Act and implementing regulations, against any person under their
jurisdiction or command;

(3) ORDERS Defendants United States of America and the Secretary of
Defense immediately to suspend and discontinue any investigation, or
discharge, separation, or other proceeding, that may have been commenced
under the “Don’t Ask, Don’t Tell” Act, or pursuant to 10 U.S.C. § 654 or its
implementing regulations, on or prior to the date of this Judgment.

(4) GRANTS Plaintiff Log Cabin Republicans’ request to apply for
attorneys’ fees pursuant to the Equal Access to Justice Act, 28 U.S.C. §
2412; and

(5) GRANTS Plaintiff Log Cabin Republicans’ request to file a motion
for costs of suit, to the extent allowed by law.

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23 Comments

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    Yay!

    But I don’t get how a district judge can issue an injunction affecting the military globaly… (Jessica?)

    It would be nice if Obama would order the DOJ not to appeal. But I’m not holding my breath. It’s fucking absurd that he insisted on going to congress to repeal DADT so he could blame it on Republicans instead of using his power as commander in chief to both defend equality and halt a program that is draining great talent and needed resources from the military. And then he wonders why his base isn’t energized going into midterms. LE SIGH.

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      Oh…because the judge said “this applies to everyone.”

      More specifically, she can do this because this is a federal (district) court addressing a federal law and the defendant is the federal government. So when the judge makes a decision applying to the defendant, it affects the whole military.

      In contrast, the Prop 8 trials only affect California (thus far) because California was (sort of) the defendant and a state law is at issue.

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    the heading is a little misleading. Hope everyone understands that more importantly then anything this ruling puts Obama in a rock and a hard place, and that we are a long way from DADT being over. it probably will be appealed. The thing is the time that it takes for all that to happen could be really long.

    lets not get too excited.

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    Can someone point me to some well proved, cited, back-up information to settle an dispute my girlfriend and i are having?

    She’s saying that a repeal of don’t ask don’t tell will simply mean that the military can go ahead and kick you out if they just think you’re gay. they don’t have to ask you anything, you don’t have to tell them anything….but if they so much as think you’re gay, they can kick you out. the statement that gays cannot serve would still stand on its own. this is basically to say that if don’t ask to tell is repealed, the military’s policy on LGBT service will revert to it’s old school method.

    But i’ve been lead to believe that the policy that bars queers from service was incorporated under don’t as don’t tell at its establishment. thus a repeal would mean there was no longer a policy stating that queers could not serve.

    SHE’S MAKING ME ALL CONFUSED! HELP!

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      Well, it depends on what any future legislation would look like, obviously. In the current political climate, I can’t image future legislation would let the gay serviceperson ban stand.

      If you look at what this ruling says, for example, the judge is ordering suspension of discharges as well as investigations, etc.

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      10 U.S.C. §654 is the part of the military code that forbids military service by gay/bi people (see its text here: http://www.law.cornell.edu/uscode/10/654.html ), so I think that part is taken care of by section 3:

      “(3) ORDERS Defendants United States of America and the Secretary of Defense immediately to suspend and discontinue any investigation, or discharge, separation, or other proceeding, that may have been commenced under the “Don’t Ask, Don’t Tell” Act, or pursuant to 10 U.S.C. § 654 or its
      implementing regulations, on or prior to the date of this Judgment.”

      In general, I am under the impression that repealing/overriding DADT has to include a direct change to military code as well. DADT just keeps them from asking if you’re gay; the USC is what makes it illegal to serve while gay. I am definitely not a lawyer, though.

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    The two militaries from the small pic of the homepage of the website are Brazilians. They were a gay couple from the military in Brazil, but both were fired for being gay. I am Brazilian and have to say that DADT is not only an American issue.

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    I have no idea why anyone would willingly join the military, much less why the military would think it has the right to regulate people’s sexuality. Having said that, hopefully this will make some gay soldiers’ lives less hellish.

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      Wouldn’t be surprised if a lot of the people joining up do so for the college benefits.

      (I couldn’t imagine joining up either, though. But I’m lucky and have upper middle-class parents…)

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        Yes, that’s probably correct. I remember in 2001 I was working at a warehouse where there were a lot of truck drivers, and we were talking about the military, and for some reason I said, “Not everyone in the military joins for patriotic reasons,” and a lot of the guys (some ex-military) laughed pretty hard. Out of the military people I know, none have spontaneously mentioned joining for patriotic reasons, though some have mentioned financial reasons.

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