Government seeks
dismissal of
'don't ask, don't
tell' challenge
By Jay Lindsay, AP
from bosont.com on the Web, July 8, 2005
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Jen Kopfstein stood in front of the USS
Midway along San Diego's waterfront Friday, July 1. Kopfstein, who served
in the Navy for five years, and 11 other service members are challenging
the military's 'don't ask, don't tell' policy, arguing in a federal
lawsuit that it violates their constitutional rights. The Bush
administration asked a federal judge to dismiss the lawsuit in a motion
heard today in Boston.
The Bush administration asked a federal judge to dismiss the lawsuit in a
motion heard today in Boston. (AP Photo) |
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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 the
rule.
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 decided."
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 request.
"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 said.
Quinlivan pointed out that the policy has been upheld by numerous courts.
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 much."
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