Judge Virginia Phillips has declared the Clinton-era policy of “Don’t Ask, Don’t Tell” to be unconstitutional. Judge Phillips is quoted as saying:
“The act discriminates based on the content of the speech being regulated… it distinguishes between speech regarding sexual orientation, and inevitably, family relationships and daily activities, by and about gay and lesbian servicemembers, which is banned, and speech on those subjects by and about heterosexual servicemembers, which is permitted.”
Basically, what this is saying that it punishes gay and lesbian troops for saying that they are gay or lesbians. However, her statement also points out that it violates the 5th amendment. Now, most of you are aware that the 5th amendment is the one that says you have the right to not incriminate yourself. That is true, but there is so much more. Specifically, the right to due process under the law. What that means is that each person is treated equally. This is very important because while the offical stances of Don’t Ask Don’t Tell is SAM (Statement, Act, Marriage), a gay serviceperson can also be outed.
Until recently, if a serviceperson was seeking medical treatment, and in order for him or her to receive proper treatment, he had to divulge to his caretaker his orientation, the caretaker could turn the serviceperson in. The serviceperson in question could then be discharged.
However, it is still possible for a gay man/lesbian to be turned in if s/he is seen doing gay activities. Not prancing through the fields, but kissing another person of the same sex or if s/he discloses his orientation to an acquaintence. This is an example of lack of due process. A straight man is not punished for kissing his loved one, or disclosing his orientation, but a gay man can.
Now, before we all run out to our local recuiters office to sign up, there are a few important things to bear in mind. First of all, this can still be appealled. Also, and injunction can be used. An injunction is when a judge’s ruling is delayed from taking effect. This usually is what happens when a decision is being appealled.
If this gets appealled, it would go to the 9th Circuit U.S. Court of Appeals. This is where the decision on the California gay marriage ban is going. As noted before, this is a pretty liberal court, so I think the odds are good that the strike-down will stay. It can also go the the United States Supreme Court. This would be more tricky. IMHO, at best, we’d be looking at a 5-4 vote for the strike down.
However, Congress is looking into lifting the DADT ban. If this happens before the case gets decided on by the USSC, then it becomes moot, and we all can run out into the streets and party.
Now, here comes a word of caution. History has shown the harder the minority pushes, the harder the majority pushes back. Brown v. Kansas Board of Education had the crisis at Central High as a push back. With the overturning of the 2008 gay marriage ban and DADT, I really worry what the counter to this will be.