Court Overturns "Don't Ask, Don't Tell" — But We Still Need to Act

Has a federal judge struck the final blow against the military's ban on openly gay and lesbian servicemembers, or will an appeal and an opposed Senate mean it will linger, perhaps for years?

U.S. District Court Judge Virginia A. Phillips ruled Thursday that the "Don't Ask, Don't Tell" (DADT) policy is unconstitutional, violating the First and Fifth Amendments (freedom of speech and due process). In her 85-page opinion (found here), she wrote, "the effect of [DADT] has been, not to advance the Government's interests of military readiness and unit cohesion, much less to do so significantly, but to harm that interest." She will issue a permanent injunction barring enforcement of the policy.

The case was brought by the Log Cabin Republicans (LCR), who advocate within the GOP for gay and lesbian rights. A repeal of DADT, they say on their Web site, helps further the core Republican principle of a strong national defense.

Now, LCR must submit language for the injunction by September 16. The U.S. Department of Justice, which opposed LCR in the case, then has seven days to submit objections.

Will there be an appeal? I'd bet on it. That's why we cannot be complacent in attacking the policy on a legislative front as well. Aubrey Sarvis, Army veteran and executive director of Servicemembers Legal Defense Network (SLDN), said of the ruling, "We're pleased by the judge's decision, but this decision is likely to be appealed and will linger for years.  Congress made the DADT law 17 years ago and Congress should repeal it. The Senate will have the opportunity to do just that this month and most Americans think the Senate should seize it."

A bill to repeal DADT (subject to certain conditions) was approved in May by the House and by the Senate Armed Services Committee as part of the National Defense Authorization Act (NDAA). The full Senate must now vote — and SLDN issued an action alert today explaining why that vote must happen in September. In short, Senate Republicans, led by Sen. John McCain (R-Ariz.), oppose the bill. If the vote slides into the lame duck session, many Republicans will only approve a Continuing Resolution for defense funding, which would not include DADT repeal. And once a new session starts, all bills must start their way through the legislative process again. If Republicans take back the House in November, it is unlikely they would push for action on a new DADT repeal bill.

SLDN is urging people to call Senate Majority Leader Harry Reid (D-NV), Senate Minority Leader Mitch McConnell (R-KY), and Senator John McCain (R-AZ) and ask for a repeal vote the week of September 20th. The Human Rights Campaign (HRC) has also declared Friday, Sept. 10 as a "National Call-In Day to Finally Repeal DADT," and is encouraging people to phone their own senators.

Thursday's ruling shouldn't fool us. It is a step in the right direction, and further evidence of why DADT must go, but it is not yet a definitive repeal. The next few weeks are critical. Go pick up your phone.

Photo credit: U.S. Army