Government policy v. government interest

Judge Virginia Phillips of a US District Court in Riverside Calif. has ruled that the Don't Ask, Don't Tell ban on gays serving openly in the military is unconstitutional. Since this is only the first step in perhaps a long judicial battle, don't go telling your commanding officer you're gay just yet.

Ari Ezra Waldman pokes through the ruling to explain it all. I'll only give you the highlight reel. DADT violates two amendments of the Constitution.

* Free Speech. Gay soldiers are not allowed to speak about being gay and that is a restriction on speech based only on the content of the speech. That restriction is so pervasive that gay soldiers have trouble answering such basic questions as, "So, what did you do on leave?" This is not a restriction their straight colleagues face.

* Due process. The government claims to have a legitimate need to keep gays silent about their orientation, but the need doesn't stand up. The policy doesn't reflect a legitimate government interest. The policy doesn't achieve it's stated goal. It intrudes on solider liberty more than necessary to meet the stated interest. Evidence at trial showed the policy actually works against several government interests.

Even though this particular judge says DADT is unconstitutional it doesn't let Congress off the hook. If the Obama administration decides to appeal it could be years before the Supremes hear the case. A repeal bill might come before the Senate once it is back in session. It should be an easy victory since about 2/3 of Americans want the repeal. It should be "low hanging fruit" easily plucked. But somehow it isn't. Dan Savage said, if this fruit were hanging any lower it would be a potato.