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The Plain English Attorney

A Federal Court Judge has declared the military’s “Don’t Ask, Don’t Tell” policy unconstitutional. While I might usually reserve a story like this for the domestic partner planning segment, it actually has more far reaching effects than just the rights of LGBT members to serve openly in the U.S. Armed Forces. On September 9, U.S. District Judge Virginia Phillips overturned the military’s ban on openly gay service members. She declared the ban violated service members’ First and Fifth Amendment Rights. But this simple angle on the story will undoubtedly make some people cry out that a judge is jeopardizing national security for some vague notion of civil rights. Not true.

The real story and the real news here is that a federal judge balanced the rights of the service members against the government’s interest in having the policy. In military matters such as these, the President and Congress are always given wide latitude. Therefore, the rule banning openly gay people from serving in the military has to jump a very low hurdle and have some “reasonable relation” to some justifiable end in order to be constitutional. The policy failed to have any reasonable end. In fact, it was actually hurting national security. According to an article by the Associated Press, the judge said:

The policy doesn’t help military readiness and instead has a “direct and deleterious effect” on the armed services by hurting recruitment efforts during wartime and requiring the discharge of service members who have critical skills and training.

The policy actually had the reverse effect because it hurt military readiness. Decades ago, before military units were racially integrated, the argument was that integration would hurt military readiness. Back then, it may have hurt military readiness because an overwhelming number of racists in the military would have caused trouble. Looking back now, the problem of racists in the military is still there, but it is nowhere near as bad as it was in the 50s. Now we have come to a point where gays openly serving in the military would not cause a huge problem. At least not to the point where a large number of personnel would openly defy an orders. And the fact is our military needs personnel with certain skills a lot more than it needs to be afraid of a backlash from bigots.

Judge Phillips balanced the Don’t Ask, Don’t Tell policy against the service member’s rights to serve and actually found the policy was hurting the military and the country. As much as members of the LGBT might consider this a legal victory for them, it is actually much more of a well-deserved defeat for a policy that didn’t work.

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