In summary, Defendants have failed to satisfy their burden under the Witt standard. They have not shown the Don't Ask, Don't Tell Policy "significantly furthers" the Government's interests nor that it is "necessary" in order to achieve those goals. Plaintiff has relied not just on the admissions described above that the Act does not further military readiness, but also has shown the following:
- by impeding the efforts to recruit and retain an all-volunteer military force, the Act contributes to critical troop shortages and thus harms rather than furthers the Government's interest in military readiness;
- by causing the discharge of otherwise qualified service-members with critical skills such as Arabic, Chinese, Farsi, and Korean language fluency; military intelligence; counter-terrorism; weapons development; and medical training, the Act harms rather than furthers the Government's interest in military readiness;
- by contributing to the necessity for the Armed Forces to permit enlistment through increased use of the "moral waiver" policy and lower educational and physical fitness standards, the Act harms rather than furthers the Government's interest in military readiness;
- Defendants' actions in delaying investigations regarding and enforcement of the Act until after a service-member returns from combat deployment show that the Policy is not necessary to further the Government's interest in military readiness or unit cohesion;
- by causing the discharge of well-trained and competent service-members who are well-respected by their superiors and subordinates, the Act has harmed rather than furthered unit cohesion and morale;
- - the Act is not necessary to protect the privacy of service-members because military housing quarters already provide sufficient protection for this interest.The Don't Ask, Don't Tell Act infringes the fundamental rights of United States service-members in many ways, some described above. The Act denies homosexuals serving in the Armed Forces the right to enjoy "intimate conduct" in their personal relationships. The Act denies them the right to speak about their loved ones while serving their country in uniform; it punishes them with discharge for writing a personal letter, in a foreign language, to a person of the same sex with whom they shared an intimate relationship before entering military service; it discharges them for including information in a personal communication from which an unauthorized reader might discern their homosexuality. In order to justify the encroachment on these rights, Defendants faced the burden at trial of showing the Don't Ask, Don't Tell Act was necessary to significantly further the Government's important interests in military readiness and unit cohesion. Defendants failed to meet that burden. Thus, Plaintiff, on behalf of its members, is entitled to judgment in its favor on the first claim in its First Amended Complaint for violation of the substantive due process rights guaranteed under the Fifth Amendment.