Last edited: July 10, 2005

Service Members Challenge “Don’t Ask, Don’t Tell” Policy

Prosecutors ask a federal judge to dismiss a challenge to the “don’t ask, don’t tell” policy.

The Advocate, July 9, 2005

(AP) Prosecutors asked a federal judge on Friday to dismiss a challenge to the military’s “don’t ask, don’t tell” policy on gay service members, saying only Congress has the power to change the rule it enacted 12 years ago.

The lawyer for a dozen former service members who were dismissed from the military for being gay said “don’t ask, don’t tell” violates their constitutional rights to privacy, free speech, and equal protection under the law. Established in 1993 under the Clinton administration, the policy prohibits the military from asking about the sexual orientation of service members but requires the discharge of those who acknowledge being gay or engaging in homosexual activity.

The former service members sued the government, arguing that the policy is clearly discriminatory. On Friday, U.S. district judge George O’Toole heard arguments in the Bush administration’s motion to dismiss the lawsuit.

Assistant U.S. attorney Mark Quinlivan said “don’t ask, don’t tell” had been debated extensively in Congress, had bipartisan support, and was signed into law by President Clinton. He also said it had been proved that having openly gay people serving in the military would hurt unit cohesion.

Attorney Stuart Delery, representing the former service members, said the court has the power to overrule Congress when a policy is clearly unconstitutional. “The courts have made clear that deference is not abdication,” he said. “The fact that Congress said it is not the end of the matter.” O’Toole did not immediately rule on the government’s motion to dismiss.

“Don’t ask, don’t tell” has been upheld by appeals courts in several jurisdictions.

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