Court: 'Don't Ask/Tell' Policy Is Unconstitutional

By Anne Lowe

FREE SPEECH -- A policy that precludes openly gay people from serving in the military was found to be unconstitutional by a federal judge in Riverside Thursday.

The decision by U.S. District Court Judge Virginia Phillips concluded that the Pentagon's Don’t Ask, Don’t Tell policy violates both the First Amendment right to free speech and the Fifth Amendment right to due process of law. Phillips also said she will issue an injunction to bar the government from enforcing the policy.

Phillips’ decision was rendered in a lawsuit filed in 2004 by the Log Cabin Republicans against Defense Secretary Robert Gates and the United States government.

Reuters reports:

The "don't ask, don't tell" policy was introduced by President Bill Clinton in 1993, overturning a previous policy of expulsion of gay service members based on the premise that homosexuality was compatible with military service.

The current policy allows homosexuals to serve in the military, but continues the long-time ban on homosexual acts and requires gay and lesbian service members to keep their sexual orientation private.

"The Act's restrictions on speech not only are broader than reasonably necessary to protect the government's substantial interests, but also actually serve to impede military readiness and unit cohesion rather than further these goals," Phillips wrote in an 86-page ruling.

The Justice Department defended the policy during the trial and will have the opportunity to appeal the decision.