Judge Cites Obama in Overturning ‘Don’t Ask, Don’t Tell’

By Matt Cover | September 13, 2010 | 4:39 AM EDT

President Barack Obama and Vice President Joe Biden participate in a Gay Pride Month event at the White House on Tuesday, June 22, 2010. (AP Photo/Carolyn Kaster)

(CNSNews.com) The California-based federal judge who declared the military’s ban on homosexual conduct, known colloquially as ‘Don’t Ask, Don’t Tell’ (DADT), is unconstitutional, based her decision in part on statements made by President Barack Obama himself.

Judge Virginia Phillips ruled on Sept. 9 that the DADT policy, codified in 10 U.S.C. ss. 654, which states, “The prohibition against homosexual conduct is a long-standing element of military law that continues to be necessary in the unique circumstances of military service,” is unconstitutional, violating both the First and Fifth amendments.

In making this ruling, Judge Phillips directly overturns the law’s claim that prohibiting homosexual conduct is necessary for maintaining military readiness and cohesion.

“The Don't Ask, Don't Tell Act infringes the fundamental rights of United States service members in many ways,” Judge Phillips said.

“In order to justify the encroachment on these rights, Defendants [the government] faced the burden at trial of showing the Don't Ask, Don't Tell Act was necessary to significantly further the Government's important interests in military readiness and unit cohesion,” ruled the judge. “Defendants failed to meet that burden.”

In making her ruling, Judge Phillips cited President Obama’s June 29, 2009 address to a gathering of gay activists and government officials, singling out the president’s contradiction of the long-time position of U.S. military officials that homosexual conduct could damage military effectiveness.

“Defendants have admitted that, far from being necessary to further significantly the Government's interest in military readiness, the Don't Ask, Don't Tell Act actually undermines that interest,” Judge Phillips noted.

She continued: “President Obama, the Commander-in-Chief of the Armed Forces, stated on June 29, 2009: ‘Don't Ask, Don't Tell doesn't contribute to our national security…preventing patriotic Americans from serving their country weakens our national security…[R]eversing this policy [is] the right thing to do [and] is essential for our national security.’”

Obama’s full quote, however, reminds his activist audience that the government is moving to change the policy in a manner that reflects the caution needed to ensure that the military is not hampered as it goes about defending vital U.S. interests.

Obama also stated unequivocally that changing the policy requires an act of Congress, not a mere judicial ruling.

“Now, my administration is already working with the Pentagon and members of the House and the Senate on how we'll go about ending this policy, which will require an act of Congress,” Obama said.

“Someday, I'm confident, we'll look back at this transition and ask why it generated such angst, but as Commander-in-Chief, in a time of war, I do have a responsibility to see that this change is administered in a practical way and a way that takes over the long term,” said Obama. “That's why I've asked the Secretary of Defense and the Chairman of the Joint Chiefs of Staff to develop a plan for how to thoroughly implement a repeal.”

In addition to citing Obama, Judge Phillips noted that government lawyers mounted no substantive defense of the law, calling no witnesses or presenting any type of testimony or evidence beyond citing the legislative history of the ban.

“…Defendants called no witnesses, put on no affirmative case, and only entered into evidence the legislative history of the Act,” Judge Phillips noted.

Because the government presented no defense, Judge Phillips easily found the plaintiffs – the Log Cabin Republicans, a homosexual group – correct in their claim that the law is unconstitutional.

“Plaintiff has demonstrated it is entitled to the relief sought on behalf of its members, a judicial declaration that the Don’t Ask, Don’t Tell Act violates the Fifth and First Amendments and a permanent injunction barring its enforcement,” Phillips ruled.