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September 09, 2010

Court: "Don't Ask, Don't Tell" is Unconstitutional

It's not an absolute bar (that would require taking the White House back), but controlling the Senate Judiciary Committee might help weed out a few liberal judicial nominees.

Just saying:

U.S. District Court Judge Virginia A. Phillips said the policy banning gays did not preserve military readiness, contrary to what many supporters have argued, saying evidence shows that the policy in fact had a “direct and deleterious effect’’ on the military.

Phillips said she would issue an injunction barring the government from enforcing the policy. However, the U.S. Department of Justice, which defended “don’t ask, don’t tell” during a two-week trial in Riverside, will have an opportunity to appeal that decision.

Will the government appeal? Ordinarily, the Department of Justice defends any law of Congress that has an arguably constitutional basis. But the President already said "'Don't Ask, Don't Tell' doesn't contribute to our national security." In fact, it's the government's weak presentation here that cost them the case:

Finally, it again must be noted that Defendants called no witnesses, put on no affirmative case, and only entered into evidence the legislative history of the Act. This evidence, discussed in Section IV(C)(1) above, does not suffice to show the Act's restrictions on speech are "no more than is reasonably necessary" to achieve the goals of military readiness and unit cohesion. (See supra Section IV(C)(1).)

Now, it's a legitimate litigation strategy for the defendants to say that plaintiffs cannot prevail as a matter of law and so there should be no need to even put on evidence. But Judge Phillips ruled against that argument in June before the trial began. At that stage, the government could have switched gears and made an alternative argument that plaintiffs fail also as a matter of fact. Such alternative -- even contradictory -- arguments are a common feature of litigation. Which means expect another helping of "they intentionally lost the case" like after the DOMA lawsuits earlier this summer.

Anyway, the government has preserved its main argument -- that the court shouldn't even have reached all of plaintiff's evidence that DADT doesn't help unit cohesion, but in fact hurts it -- for appeal. (If there is an appeal.)

The judge's extensive findings of fact and order are here (PDF). On the importance of factual findings on appellate review, see what I wrote here after Judge Walker's out-of-control Prop 8 "findings of fact."

To steal a page from Allah, Exit Question: What does this mean for the DADT repeal currently winding its way through Congress?


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posted by Gabriel Malor at 11:33 PM

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