The federal court decision last Thursday holding unconstitutional the 1993 "don't ask, don't tell" policy that excludes openly gay people from the military may well presage a Supreme Court ruling in 2012 killing that policy once and for all. Unless Congress kills it first.
The main reason: public assertions by both Admiral Mike Mullen, the chairman of the Joint Chiefs of Staff, and President Obama that the anti-gay policy is not now necessary for unit cohesion—the reason given in 1993 for excluding openly gay soldiers-and undermines military readiness.
The tradition of judicial deference to military and congressional judgments on military matters, which was cited by previous federal court decisions in favor of "don't ask, don't tell," offers little support for a discriminatory policy that the military's civilian and uniformed leaders no longer defend and, indeed, seek to repeal. Especially when one House of Congress has already voted to repeal it, as the House of Representatives did in May.
To be sure, many in the military disagree with Obama. These include Marine Corps Commandant Gen. James Conway, who opposes any repeal, and to some extent the chiefs of the Army, Navy, and Air Force, who have urged a go-slow approach. But Conway retires this month. And Obama is Commander-in-Chief of the Armed Forces.
In last Thursday's decision, Judge Virginia Phillips, of the federal district court in Riverside, CA, stressed an Obama statement that "preventing patriotic Americans from serving their country weakens our national security" and assertions by Admiral Mike Mullen, Chairman of the Joint Chiefs, that "allowing homosexuals to serve openly is the right thing to do." Defense Secretary Robert Gates has made similar statements, subject to completion later this year of a Pentagon study on how best to phase in the change. Gates has restricted enforcement of "don't ask, don't tell" in the meanwhile.
The 1993 policy bans the military from asking about service members' sexual orientation but requires the discharge of those who admit to homosexuality. Since passage, some 13,000 service members have been discharged. The policy denies gays in the military the rights "to enjoy 'intimate conduct' in their personal relationships" and "to speak about their loved ones" or their homosexuality, the judge wrote.
Given the views of Obama and Mullen, Judge Phillips reasoned, "don't ask, don't tell" is trumped by the rights of Americans to engage in same-gender sexual relations, which the Supreme Court recognized in 2003.
That decision struck down a Texas law making homosexual sodomy a crime and held that constitutional due process protects "an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct."
Conservative critics have panned Judge Phillips, a Clinton appointee, as a liberal activist. But two impeccably conservative Washington lawyers have made a similar case against "don't ask, don't tell."
"The fact that the military's senior leadership (both in and out of uniform) sees no significant threat to unit cohesion and combat effectiveness from permitting openly gay men and women to serve," wrote David Rivkin and Lee Casey, who have been prolific critics of many Obama policies, in a February 13 Washington Post op-ed, "will make it all but impossible for Congress to articulate a rational basis for excluding them."
In her 86-page opinion, Judge Phillips also detailed the severe impact of "don't ask, don't tell" both on gay people serving in the military—including several members of the Log Cabin Republicans, the gay rights group that brought the lawsuit—and on the military itself.
She also asserted that the policy impedes recruitment and retention of good soldiers; contributes to a shortage of troops, especially those with critical language, medical, and intelligence skills; leads to lower standards for education, physical fitness, and character; and harms morale by requiring discharge of gay soldiers who have won the respect of those with whom they serve. For these reasons, "don't ask, don't tell" violates due process, the judge held. She added, less persuasively, that it violates the First Amendment too.
Judge Phillips said she would enter an injunction ordering the government to stop enforcing the policy in the coming weeks. The Justice Department, which traditionally defends the constitutionality even of laws opposed by the current president, is expected to appeal and obtain a stay of any injunction.
But the mostly liberal U.S. Court of Appeals for the 9th Circuit seems likely ultimately to agree with Phillips, who relied in part on a 9th Circuit decision in another case, in 2008, requiring "heightened scrutiny" of "don't ask, don't tell." The 9th Circuit decision in the Log Cabin Republican case could come next year, setting the stage for likely Supreme Court review in 2012.
A judge more restrained than Phillips might have waited for the Senate to act on the House-passed measure to repeal "don't ask, don't tell." But if Congress has not repealed the policy by 2011, the justices may well cite the Obama-Gates-Mullen position as a basis for striking it down.
Also relevant, if less likely to be cited by the jurists, is the fact that some 75 percent of the public now opposes don't ask, don't tell. The justices do follow the polls, as well as the election returns.
Stuart Taylor is a contributing editor to NEWSWEEK and National Journal.