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Federal judge declares ‘Don’t ask’ policy illegal

Injunction to bar government from enforcing it, though it can appeal

RIVERSIDE, Calif. – A federal judge in Riverside on Thursday declared the U.S. military’s ban on openly gay service members unconstitutional, saying the “don’t ask, don’t tell” policy violates the First Amendment and due process rights of lesbians and gay men.

U.S. District Judge Virginia A. Phillips said the policy did not preserve military readiness, contrary to what Justice Department attorneys and many supporters have argued, saying evidence shows that the policy in fact had a “direct and deleterious effect” on the armed services.

Phillips said she would issue an injunction barring the government from enforcing the policy. However, the Justice Department, which defended “don’t ask, don’t tell” during a two-week trial in Riverside, will have an opportunity to appeal that decision.

Thursday’s ruling, the first successful legal challenge to the policy since Congress enacted it in 1993, was filed in 2004 by the Log Cabin Republicans, the largest political organization for gays in the GOP.

In her 85-page ruling, Phillips offered a scathing critique of the 17-year ban on gays serving openly. She noted that the military has since permitted more convicted felons to enlist and that President Barack Obama and the chairman of the Joint Chiefs of Staff have called for the repeal of “don’t ask, don’t tell.”

The judge found convincing evidence that the military’s own actions showed that having gays and lesbians in the services did nothing to impede military capabilities. The branches have routinely delayed discharging service members suspected of violating the policy until they have completed their deployments in Iraq and Afghanistan, and the number of discharges has declined significantly since the outbreak of combat in 2001.

Phillips said the evidence showed that the “don’t ask, don’t tell” policy had harmed military capabilities. The policy has hindered recruiting efforts, led to the discharge of service members the military considers “critical” – including medical professionals and Arabic and Farsi linguists – and caused the military to enlist recruits who earlier would have been rejected because of their criminal records or lack of education or because they were out of shape, she said.

The policy also violates the right to free speech because heterosexual service members are free to state their sexual orientation, while homosexuals face discharge if they do the same, she said

The ruling comes just more than a month after a federal judge in San Francisco tossed out California’s voter-approved ban on same-sex marriage, providing back-to-back victories for gay rights advocates seeking policy changes in the courts that have eluded them in Congress and at the ballot box.

“As an American, a veteran and an Army reserve officer, I am proud the court ruled that the arcane ‘don’t ask, don’t tell’ statute violates the Constitution,” said R. Clarke Cooper, executive director of the Log Cabin Republicans. “Today, the ruling is not just a win for Log Cabin Republican service members, but all American service members.”

Justice Department officials did not provide a response to the ruling Thursday.

Former President Bill Clinton, who nominated Phillips to the federal bench in 1999, adopted the “don’t ask, don’t tell” policy in 1993 as a reform to the military’s practice of seeking out and discharging gays and lesbians. Under the policy, as long as gays and lesbians keep their sexual orientation secret, they are allowed to serve.

More than 13,000 service members have been discharged under the policy.

Phillips’ ruling is expected to intensify political pressure in Washington to act on legislation to repeal “don’t ask, don’t tell,” which remains stalled in the Senate.

“I think it’s a very, very interesting and sound opinion, and I think it will place a lot of pressure on Congress to move on this issue,” said constitutional scholar Kenji Yoshino of the New York University School of Law. “From a gay rights perspective, it’s a very exciting development.”

Yoshino predicted the case would be appealed all the way to the U.S. Supreme Court if Congress fails to act.


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