Federal Judge Suspends Don’t Ask, Don’t Tell

On Wednesday, U.S District Court Judge Virginia Phillips issued a permanent injunction against enforcement of the Don’t Ask, Don’t Tell (DADT) law. The injunction was issued pursuant to a claim brought by the Log Cabin Republicans, an LGBT Republican organization.

The Court’s Findings of Fact and Conclusions of Law (per FRCP 52) explained the decision to grant the injunction.

Evidence at Trial

Plaintiff’s Evidence: Testimony of Former Servicemembers

Judge Phillips considered testimony from former servicemembers discharged under DADT. The witnesses included enlisted men and women, as well as officers, all with exemplary military records, who resigned or were honorably discharged because military authorities learned that they were gay. The servicemembers testified as to how the ban affected their ability to socialize and bond with their peers because they could not discuss their personal lives. Some, such as Anthony Loverde, felt that they were being forced to behave deceitfully because they had to lie about important aspects of their lives, such as their relationships.

Several were outed because others had invaded their privacy–in Michael Almy’s case, a fellow soldier read his personal email. In John Nicholson’s case, a fellow sailor looked over his shoulder and read a letter. These individuals tried to keep their sexual orientation private, as required by the Act, but were outed by unscrupulous peers. As a result, the military discharged these men, despite their excellent records and support from their commanding officers and units.

Others suffered abuse that they could not report for fear of dismissal. John Rocha experienced violent and humiliating sexual harassment by his commanding officer and his peers because they suspected he was gay. Rocha persevered through the abuse and eventually won acceptance to the prestigious Naval Academy. The prospect of living in terror for the rest of his military career, however, prevented him from accepting. He came out and sought an honorable discharge.

Plaintiff’s Evidence: The Act Itself

The Court also reviewed the Don’t Ask, Don’t Tell Act, codified at 10 USC 654. It found that the law reflected the legislative findings that military life is different and more restrictive than civilian life and that homosexuality disrupts unit cohesion. The Act further requires that gay servicemembers be separated from the military if they are found to have (a) engaged in, attempted to engage in, or solicited homosexual conduct, (b) stated that they are  homosexual or (c) married or attempted to marry someone of the same sex. (10 USC 654(b)).

Defendant’s Evidence: Legislative History

Defendants relied on legislative history to support the Act. They referred to several reports that were submitted to Congress during the initial hearings for DADT, as well as Congressional testimony of various experts on the subject. From the Court’s perspective, none of the reports cited seem to directly or strongly support the Defendants’ position that openly gay service members would affect social cohesion in the Unit.

The Crittenden Report, commissioned in 1957, did not provide data on the impact that gays would have; instead, it simply assumed that their presence was harmful and undesirable.

A 1988 PERSEREC Report entitled Nonconforming Sexual Orientations in the Military and Society suggested that society was trending toward acceptance of lesbians and gays, and recommended the military move toward a similar acceptance. The report suggested that research on the impact of homosexuals and unit cohesion was important and should be conducted, but did not offer existing data to support a finding of negative impact.

A Rand Report, prepared in 1993, concluded that no empirical evidence existed demonstrating the impact of an openly homosexual member on the cohesion of any military unit. The Report suggested that integrating openly gay servicemembers into units would help diminish problems, because “familiarity breeds tolerance.”

Defendants also presented testimony of experts at the Act hearings to support their claim. Similar to the Reports, the Court found this testimony unpersuasive. Dr. Lawrence Korb, in his testimony before the Armed Services Committee in 1993, testified that there was no empirical research to to support the view that homosexuals would disrupt unit cohesion, though he did admit that it could have a short term impact at the start of integration.

Dr. Henderson testified that the “human element” was most important in unit cohesion, and that a unit member who did not conform to the unit’s expectations would be isolated, and disrupt unit cohesion. Based on his estimates that 80% of the troops at the time opposed integration of homosexuals into their units, he concluded that integration would disturb unit cohesion. The Court, however, found that he presented no empirical evidence to support this assertion.

Dr. Marlowe presented similar opinions to Dr. Henderson’s, but he added that as long as the soldier did not “flaunt” his sexual orientation, and behaved first and foremost as an upstanding servicemember, unit cohesion would not be disrupted.

General Colin Powell also testified as to the effect that openly gay servicemembers would have on unit cohesion. He felt that homosexuality was incompatible with military service and would undermine unit cohesion. He testified that a final policy decision must be made in order to improve military readiness.

Tomorrow, we will continue with coverage of the court’s analysis and conclusion in Log Cabin Republicans v. United States of America et al.

One Response to Federal Judge Suspends Don’t Ask, Don’t Tell

  1. Pingback: Don’t Ask, Don’t Tell = Can’t Recruit, Can’t Retain | Justia Law, Technology & Legal Marketing Blog

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