Government Seeks Dismissal of ‘Don’t Ask, Don’t Tell’ Challenge
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
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
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
“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
Quinlivan pointed out that the policy has been upheld by
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
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