Riverside federal judge bars "Don't Ask, Don't Tell" military policy

RIVERSIDE - A federal judge in Riverside today barred the U.S. military from continuing to enforce the ''Don't Ask, Don't Tell'' policy that prevents open gay service.

U.S. District Judge Virginia Phillips cited violations of gay service members' first and fifth amendment rights under the U.S. Constitution in granting the permanent injunction.

The Log Cabin Republicans sued to have Don't Ask, Don't Tell invalidated based on due process and freedom of speech infringements.

In her order, Phillips enjoined the Defense Department from moving forward with investigations or proceedings that could lead to the discharge of a service member because of ''Don't Ask, Don't Tell.''

Congress passed the law -- U.S. Code Title 10, Section 654 -- in 1994 as a compromise to the Clinton administration's push to allow open homosexual service.

The U.S. Justice Department has 60 days to appeal the judge's decision. But there has been no indication of a forthcoming appeal by the Obama administration.

In her Sept. 9 ruling declaring ''Don't Ask, Don't Tell'' unconstitutional, Phillips quoted the president as saying the policy ''doesn't contribute to our national security'' and that ''reversing this policy is the right thing to do.''

Elaine Donnelly, president of the nonprofit Center for Military Readiness, questioned the judge's authority to issue the injunction in the first place, calling Phillips' order ''an egregious example of judicial activism.''

Donnelly said the Obama administration would be ''derelict in its duty to defend the law'' if it failed to challenge Phillips' ruling, arguing that the judge's reasoning would never withstand U.S. Supreme Court scrutiny.

''The Supreme Court will uphold the principle of deference'' to the legislative branch in regulating military affairs, Donnelly said.

Citing an open letter published last year by the Flag & General Officers for the Military -- made up of 1,200 retired generals and admirals -- Donnelly said revoking ''Don't Ask, Don't Tell'' could ''break the all- volunteer force,'' disrupting morale and driving away potential recruits.

''This is a serious threat to the only military we have. If people don't volunteer to join the military or stay, then yes, it undermines our national security and defense. This is a reason for great concern,'' Donnelly said.

The Log Cabin Republicans filed suit in 2004 seeking to have ''Don't Ask, Don't Tell'' overturned on the grounds that it was discriminatory and violated homosexuals' rights to due process.

The plaintiffs' lead attorney, Dan Woods, argued ''Don't Ask, Don't Tell'' was unconstitutional based partly on the Supreme Court's findings in the 2003 case of Lawrence v. Texas, in which the nation's high court struck down that state's anti-sodomy laws, declaring sexual conduct a private matter that was constitutionally protected.

Woods also said the Ninth Circuit Court of Appeals' decision in Witt v. U.S. Air Force so attenuated ''Don't Ask, Don't Tell'' as to make it virtually inapplicable.

The Witt case, which arose from a gay Air Force nurse's challenge to her 2006 discharge, resulted in the ''Witt Standard,'' which states that in order for the government to justify booting gays, it has to show that not doing so would prove detrimental to ''good order and discipline.''

The U.S. Attorney's Office did not call any witnesses during the two- week trial stemming from the Log Cabin Republicans' lawsuit and rested its defense of the federal law on Congress's actions 17 years ago.

The plaintiffs' witnesses included a number of gay ex-servicemen and women. Among them was a 13-year Air Force veteran, Maj. Mike Almy, who testified that his dismissal nearly caused him to have a nervous breakdown.

He was ''outed'' by a fellow serviceman who discovered intimate email messages between the major and an ex-lover.

Phillips cited Almy's testimony, as well as that of the other witnesses, in illustrating the intrusion on gay service members' personal lives that ''Don't Ask, Don't Tell'' invites.

The judge also stressed that three separate studies had cast doubt on arguments that the presence of homosexuals in the ranks ''had a negative effect'' on the military as a whole or that their ''exclusion was desirable.''