Last edited: July 10, 2005

Government Seeks Dismissal of ‘Don’t Ask, Don’t Tell’ Challenge

Boston Globe, July 8, 2005

By Jay Lindsay, Associated Press Writer

BOSTON—Only Congress can undo the military’s “don’t ask, don’t tell” policy on gay service members, a prosecutor argued Friday in urging a federal judge to dismiss a challenge to the rule.

A dozen former soldiers dismissed from the military for being gay sued in December, saying the 12-year-old policy is discriminatory. A judge heard arguments Friday in the government’s bid to dismiss the lawsuit.

Assistant U.S. Attorney Mark Quinlivan said any changes must come from Congress, not the courts. He said the rule, passed in a bipartisan vote in 1993, was debated extensively before being approved by Congress and signed by President Clinton.

“To say the case should be dismissed is not to say the debate on Congressional policy ends,” Quinlivan said, noting there is pending legislation to repeal the law. “It is only to say it should be returned to the branch of government where it should be appropriately decided.”

But a lawyer for the 12 former service members said the deference courts traditionally give lawmakers on military matters isn’t required when constitutional rights are being violated.

“Don’t ask, don’t tell” denies gay service members their rights to privacy, free speech and equal protection under the law, attorney Stuart Delery said.

“The courts have made clear that deference is not abdication,” he told U.S. District Judge George O’Toole. “The fact that Congress said it is not the end of the matter.”

O’Toole did not immediately rule on the government’s request.

“Don’t ask, don’t tell” forbids the military from asking about the sexual orientation of service members. But it requires the discharge of those who acknowledge being gay or engaging in homosexual activity if the person can’t prove he or she is unlikely to engage in homosexual behavior again.

Quinlivan rejected a claim by the plaintiffs that the policy is driven by animus against gays. Rather, it aims to preserve the cohesion military units depend on in battle, which any sexual dynamic, homosexual or heterosexual, can disrupt, he said.

While the military can separate male and female living quarters, it can’t reasonably do the same for members of the same sex, he said.

Quinlivan pointed out that the policy has been upheld by numerous courts.

The plaintiffs say the matter should be revisited in light of a 2003 U.S. Supreme Court decision that struck down a Texas anti-sodomy law. That ruling extended the constitutional right to privacy to consensual adult sexual relationships.

Delery said the decision changed the entire legal landscape for gays by recognizing their right to sexual relationships.

But that case dealt with illegal sexual behavior, Quinlivan countered, and is irrelevant to a rule with no criminal penalty that is unique to military life.

Delery also said the policy’s assumptions about the negative impact of gays in military life have proven false in the years it’s been in place.

“Problems have not occurred,” Delery said. “The presence of gays and lesbians has caused no harm.”

In fact, he said, each plaintiff had exemplary military service, but was discharged anyway.

Plaintiff Megan Dresch was discharged from the Army in September 2002, six months after she told an officer she was a lesbian. She said the admission came after she confided in a friend about the stress she’d been feeling hiding her gay relationship, and her friend reported her to the officer.

The 22-year-old Phoenix resident said she would gladly rejoin the military if the policy is overturned, despite her disappointment about being discharged for being honest.

“This is my country and I want to serve,” Dresch said. “I want to be able to go out and defend the freedom that I enjoy so much.”

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