An injunction issued by a federal judge in California on Tuesday that immediately bans the United States military from enforcing its infamous “don’t ask, don’t tell” policy is sound and timely. The ruling by Virginia A. Phillips rights a grievous wrong even as it reiterates the primacy of fundamental Constitutional principles in U.S. society.
The “don’t ask, don’t tell” policy prohibited openly gay men and women from service in the armed forces. The injunction bans enforcement of the law. It ordered the military to instantly “suspend and discontinue” any investigations or proceedings under way that could lead to the dismissal of a member of the armed services under its provisions. The Department of Justice has 60 days to appeal the ruling. It should not. The decision should stand.
Phillips ruled last month that the “don’t ask don’t tell” rule was unconstitutional. Tuesday’s injunction expands that decision. The judge said that the nearly two-decade old policy “infringes the fundamental rights of United States service members and prospective service members.” She added that the rule violates their rights of due process and freedom of speech. That’s all true, but the correctness of the ruling does not guarantee that it will go unchallenged.
Support for the current law remains strong. Those opposed to gays in the military argue that their presence undermines morale and limits military efficiency. Phillips debunked that, saying that she could not find any evidence that it was true. Indeed, she cited evidence to the contrary. She pointed out that the “don’t ask, don’t tell” rule had prompted the discharge of around 15,000 men and women. The wholesale discharges, not the presence of gays in uniform, harmed the military, suggested the judge.
The release of so many individuals led to “critical troop shortages” during a time of war. Many of those discharged had critical skills – fluency in Arabic, medicine and counterterrorism, for example. Clearly, the arbitrary discharge of men and women willing to serve but not allowed to do so because of sexual orientation is counterproductive – and harmful to the nation’s defense.
The discharges are particularly egregious, too, at a time when the military is struggling to maintain strength. While thousands were discharged under the “don’t ask, don’t tell” rules, the military was granting waivers to convicted felons and to those who fell short of physical fitness requirements to fill the ranks. Sources indicate that those granted such waivers are far more likely to be discharged for misconduct and other problems than other members of the service. That can hardly improve military efficiency.
The Obama administration now must decide whether an appeal is in order. The president has said he opposes the “don’t ask, don’t tell” rule. However, he prefers a legislative rather than a judicial remedy. That’s been tried. It hasn’t worked.
The House passed such legislation, but the Senate, led by Republicans opposed to gays in the military, blocked it. GOP leaders clearly wanted to wait until after the Nov. 2 election to take up the issue. They believe the party will gain Senate seats and thus be able to beat back the legislative repeal effort.
If that’s the case, the judge’s “don’t ask, don’t tell” injunction suffices. It effectively bans a law that patently violates the civil rights of law-abiding men and women who want to serve their country honorably and to live their private lives without officially sanctioned discrimination. Those are universal yearnings that government should support, not challenge.