'Don't Ask, Don't Tell' Challenge Renewed

By Monisha Bansal | July 7, 2008 | 8:06 PM EDT

(CNSNews.com) - A federal court is scheduled to hear oral arguments in March in a challenge to the ban on homosexuals serving in the military, but some say the courts have no authority on the issue.

According to Steve Ralls, communications director for the Servicemembers Legal Defense Network - which provides legal representation to homosexual service members - the case was first filed in the Massachusetts district court in 2004 on behalf of 12 veterans who were dismissed during the last six years under the military's 'Don't Ask, Don't Tell' policy.

The policy forbids homosexuals from serving in the military if they openly admit their sexual preference.

"The 12 men and women named in the lawsuit are asking the court to declare the law unconstitutional and to reinstate them at the position that they held in the armed services at the time of their dismissal," Ralls said.

In April, the district court granted the federal government's application to dismiss the lawsuit and First Circuit Court of Appeals is now hearing the appeal of that dismissal. The appeals court will either send the suit back to the district court or instruct it to hear the case, or it will uphold the lower court's decision.

Elaine Donnelly, president of the Center for Military Readiness, told Cybercast News Service she could not understand why the appeals court would agree to hear the case. "I simply can't imagine a rationale for doing that," she said.

"The law is pretty clear," Donnelly said. "The law was passed with an overwhelming majority of members of Congress. Congress and the president make military policy. Courts historically have not intervened, so I can't imagine what the rationale would be."

Ralls remained optimistic, however. "We are confident that the First Circuit is going to allow the case to move forward," he told Cybercast News Service. "We believe there are a number of unique legal arguments in this appeal that have not been part of earlier challenges to 'Don't Ask, Don't Tell.'"

Ralls noted that "this is the first case since the Supreme Court's Lawrence v. Texas decision [in 2003] which uses that high court opinion as a basis for challenging the military stand.

"We think that Lawrence significantly changed the legal landscape as it applies to 'Don't Ask, Don't Tell' and we believe that the First Circuit will find that the district court should take that into account," he said.

In the Lawrence case, the Supreme Court in a six-to-three ruling struck down the criminal prohibition of homosexual sodomy in Texas.

"The Supreme Court was very clear in its Lawrence v. Texas decision that the federal government could not use private consensual conduct as a basis for discrimination against lesbian and gay Americans," said Ralls.

"'Don't Ask, Don't Tell' does exactly that. Gay and lesbian Americans are held to a different standard than heterosexual service members."

Ralls expressed optimism that the current case could be "the 'Don't Ask, Don't Tell' case that eventually ends up at the U.S. Supreme Court."

In November, 14 retired senior military officials filed an amicus brief to try to persuade the court to take the case.

The brief states that the military's policy on homosexuality in the military "undermines the military's ability to fulfill its primary mission of providing national security by discouraging the enlistment of gay persons qualified to serve their country and by expelling from the military those who have served with honor.

"The lone justification for 'Don't Ask, Don't Tell' - its purported harm to unit cohesion - is unsupported," the brief says. The retired officials said it was "contradicted by their own experience, the experience of numerous foreign militaries that permit openly gay persons to serve, and the current policies of the Department of Defense."

'That's what the law says'

Donnelly recalled that former President Bill Clinton pushed in 1993 for openly homosexual and lesbian people to be allowed to join the military. But when faced with political pressure, he compromised on a regulation that allowed homosexuals in the military if they did not state their sexuality. This regulation is not part of the U.S. Code or law.

"The policy before Clinton took office was that homosexuality is incompatible with military service," she said. "That's what the law says.

"Everybody can serve their country in some way, but homosexuals are not eligible to serve in the military, that's what the law says," Donnelly added.

The relevant section of the U.S. Code states: "The presence in the armed forces of persons who demonstrate a propensity or intent to engage in homosexual acts would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability."

"There are a number of groups of people that are not eligible to serve - if you are too old, too young, if you have other impediments to deployability," Donnelly said. "Homosexuality was determined by Congress to render a person not eligible to be in the military. It's that simple."

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