Gays sue to end military's `don't ask, don't tell' policy

Violations of privacy, free speech alleged in dismissal of gays

July 09, 2005|By Elizabeth Mehren | Elizabeth Mehren,LOS ANGELES TIMES

BOSTON - Twelve gays and lesbians brought suit yesterday against the federal government, seeking to overturn the "don't ask, don't tell" policy that bars homosexuals from openly serving in the military.

The six men and six women, representing every armed service branch except the Marines, also asked to be reinstated in the military. Each had served in the war on terrorism, and all were dismissed after they disclosed their sexual orientations to superiors.

The Bush administration asked U.S. District Judge George A. O'Toole Jr. to dismiss the case, known as Cook v. Rumsfeld, arguing, "Courts should not second-guess congressional judgment."

No action by judge

O'Toole took no action yesterday and did not indicate when he would decide whether to accept or reject the government's request.

The "don't ask, don't tell" policy, adopted by Congress in 1993, states that military personnel may not inquire about the sexual orientation of service members. But those who acknowledge that they are gay or lesbian must be discharged.

Nearly 10,000 members of the military have been dismissed since the policy was introduced.

"You cannot re-litigate questions that were reasonably reviewed by the legislative branch," Assistant U.S. Attorney Mark Quinlivan said. The military's ban on open homosexuality, he argued, helps to maintain cohesion in military units by "reducing sexual tensions and promoting personal privacy."

But plaintiffs' attorney Stuart Delery argued that "don't ask, don't tell" violated the veterans' rights to free speech, privacy and equal protection under the law.

The policy is biased, Delery said, and has not been shown to produce cohesion in military units.

Six previous lawsuits challenging the military's prohibition on open homosexuality were not successful. Two others are pending, including a case called Log Cabin Republicans v. Bush, filed in the fall in Los Angeles.

Follows sodomy case

But the case heard Friday in Boston is the first to base its arguments on Lawrence v. Texas, a 2004 Supreme Court decision that struck down state laws against sodomy.

"Lawrence changed the landscape," said C. Dixon Osburn, executive director of the Servicemembers Legal Defense Network, which filed the case on behalf of the 12 gay and lesbian veterans.

Citing data from the Washington-based Urban Institute, Osburn said that 65,000 gays and lesbians are serving in the U.S. military. He said there are 1 million gay and lesbian veterans.

Dismissing gay and lesbian service members, he pointed out, reduces military ranks "at a time when the military is not meeting its recruiting goals."

Osburn said that if O'Toole does not dismiss the case, his organization is prepared to take its fight against "don't ask, don't tell" to the Supreme Court. The justices have never heard a challenge to the military's policy on gays and lesbians.

The Los Angeles Times is a Tribune Publishing newspaper.

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