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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