On Tuesday, a federal judge in California issued a worldwide injunction against execution of Section 654 of Title 10, or as it is more commonly known, Don’t Ask, Don’t Tell. The injunction by Judge Virginia Phillips of the Central District of California follows her September 9 ruling in Log Cabin Republicans v. United States of America that Don’t Ask, Don’t Tell is an unconstitutional infringement on servicemembers’ rights of substantive due process under the 5th Amendment and freedom of speech under the 1st Amendment. The ruling was the first to declare the law unconstitutional.

First to the law surrounding Don’t Ask, Don’t Tell. The various federal courts that have addressed DADT in 2009 came to different conclusions. In Witt v. U.S. Dept. of the Air Force, the Ninth Circuit upheld parts of DADT and deferred judgment through remand on the issue of substantive due process. In Pietrangelo v. Gates a federal judge in Massachusetts rejected all three arguments against DADT. The decision was upheld by the First Circuit Court of Appeals, which based its ruling on “the special deference we grant Congressional decision-making” in the area of military policy. The case was then declined by the Supreme Court.

As is usual in court cases with significant public interest, cases challenging DADT have several elements, some of which have attracted more attention than others. The most-publicized element of DADT rulings has been the policy arguments surrounding the “unit cohesion” issue – whether the presence of gay and lesbian servicemembers makes a military unit less effective. This issue is important, but far from the only one raised in legal challenges to DADT. It has been challenged by various groups on several grounds: it violates the 5th Amendment’s guarantee of substantive due process, it violates the 1st Amendment’s guarantee of free speech, and it violates the equal protection clause.

The substantive due process claims argue that DADT violates servicemembers’ right, identified in a 2003 case invalidating a law prohibiting sodomy in Texas, to “autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.” The issue hinges on what level of scrutiny courts apply to the right of “intimate conduct. A challenge to a “fundamental right” is reviewed with “strict scrutiny” and can only be outweighed by a “compelling” government interest. A challenge to a right that is not fundamental is reviewed with a “rational basis” test where the government’s hurdle is merely rationally related to a legitimate state interest. In essence, if the Supreme Court says a particular right is fundamental, then it makes it much more difficult for government restrictions to withstand a constitutional challenge. It’s in this area of the law that the issue of unit cohesion is argued.

The free speech claims argue that since part of the evidence proving a servicemember’s homosexuality under DADT can be statements and not conduct, these regulations unconstitutionally restrict free speech. The counterargument is that the “evidentiary use of speech” has never been prohibited and can be used to prove a variety of things, including motive and intent.

Lastly, the equal protection argument is that gays and lesbians deserve equal treatment under the Constitution. The counterargument is that sexual orientation is not a “suspect class” (whereas gender and race are) and that the government has a rational basis for the legislation, similar to the argument under substantive due process.

In Log Cabin Republicans, the Judge found that there was no rational basis for prohibiting gay and lesbian servicemembers from serving openly. More importantly, rather than just rejecting the government’s claim, Judge Phillips actually found that the reverse is true – prohibiting gays and lesbians from serving openly actually harms unit cohesion and decreases readiness. In making this finding, Judge Phillips pointed to discharges of highly trained Arabic linguists and other experts, as well as the increasing rate of obesity, criminal records, and lower education among new recruits.

Judge Phillips also found that DADT restricted speech “more than reasonably necessary to protect the Government's interests.” Because the speech relates to content, rather than a location or circumstance, it must be held to a higher standard. This higher standard asks if the restriction is truly necessary given the governmental interests at stake. Judge Phillips found that there was not a “substantial governmental interest” at stake because of the harm DADT does to military recruiting and readiness.

Importantly, Judge Phillips’ listed extensive findings of fact about DADT and its effects in her opinion. The Ninth Circuit resolves disputes about law, not facts, and its review of Judge Phillips’ ruling will have to accept her findings of fact that DADT is harmful to military readiness in seeing if she misapplied legal precedent. A potential Supreme Court ruling would have the same approach.

It would appear that Don’t Ask, Don’t Tell is history. But several other layers of the issue reveal that to be misleading.

While I consider us at D&D pithy, analytic and jovial, sometimes it is best to leave these things to the professionals. Here is what I would have liked to say to Justice Alito after his "Joe Wilson" moment during last night's State of the Union.

Ladies and Gentlemen, I give you: Stephen Colbert:

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Last week's Supreme Court decision on corporate direct spending on US elections may have an incredibly scary, unintended consequence. While there is an excellent breakdown of the issue here on Talking Points Memo, I wanted to talk about this issue on D&D as well, if only to start the debate!

Question: Are you an international corporation, possibly controlled by your national government?

Quetion: Are you incorporated in the United States?

Question: How would you like to try and influence the outcome of a US election?

If you answered these three questions "yes", or, in the case of Venezuelan Government controlled, US incorporated, Citgo: "claro que si! Viva Chavez!", boy are you in luck! In the eyes of the law, these corporations can spend, spend, spend in any and every election they see fit. Do your political ads suddenly smell less 'sulfery'? Thanks Hugo!

Yikes.

While the impacts of this Supreme Court decision have yet to be witnessed, one can only imagine that the impact of this 5-4 ruling may fundamentally change how elections play out. It is concerning food for thought, and I suspect to be reading more about this very soon. In the meantime, does anyone know how to say "Swift Boaters for Truth" in Spanish, Arabic, and Chinese?