Once again, it takes a judge in California to say on the record what most thinking people have known for years. Last night, US District Court Judge Virginia A. Phillips ruled that the military's "Don't Ask, Don't Tell" policy on preventing openly-gay people from serving their country is unconstitutional.
The ruling comes weeks after a judge found that California's Proposition 8 ballot initiative banning homosexual marriages had no business becoming law. Note how similar the language is in the DADT ruling:
"Defendants 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" wrote [the Judge.] "Defendants failed to meet that burden."
Phillips plans to issue a permanent injunction barring the military from enforcing the policy in approximately two weeks. [ABC]
I know you're all just begging to sign up to fight in Afghanistan, but let's wait a bit and see how this all plays out. One observer thought an appeal could prove Phillips' opinions are shaky:
The District Court's Due Process analysis was awful. It didn't even honor the precedent it cited as support. Witt was an as-applied challenge, and it limited its intermediate scrutiny factors to as-applied challenges (as the S. Ct. seemed to do in Sell). It ignored the scope of Lawrence, which certainly makes DADT unconstitutional in certain applications (but not almost certainly not on its face). It gave no deference to the Congressional findings in the legislative history and instead made its own policy.
Congress should be the body repealing DADT. Add this decision to the list of cases Conservatives will point to when they're making their judicial activism accusations. [Above the Law]