Jun 28, 2005

by Margo Williams 365Gay.com Boston Bureau

(Boston, Massachusetts) A federal judge will hear arguments next month challenging "don't ask, don't tell", the law banning gays from serving in the armed forces.

Judge George A. O’Toole, Jr. will hear the case July 8th. At the same time he will consider a motion from the federal government to dismiss the case.

The suit was filed last December by twelve lesbian and gay former servicemembers who were discharged under the law after they came out. (story)

Each of the 12 has served during the current war on terror in the Army, Navy, Air Force and Coast Guard, according to the Servicemembers Legal Defense Network which is representing them.

In all, they have earned more than five dozen awards, medals and commendations.

The lawsuit asserts that “’Don’t Ask, Don’t Tell’ punishes gay, lesbian and bisexual service members . . . for their sexual orientation and for their private, constitutionally protected conduct. As a result, it has denied and continues to deny them several Constitutional rights, including the right of privacy, equal protection of the law, and freedom of speech.”

Other courts have upheld the 11-year-old policy, but those decisions came prior to the 2003 Supreme Court ruling that struck down the Texas sodomy law declaring gays and lesbians have a right to due process under the Constitution.
In its motion to quash the suit the Pentagon says that the sodomy ruling has no bearing on the case because the 12 could abstain from sexual activity and not reveal their sexuality.

The case could eventually reach the United States Supreme Court.

Two other lawsuits challenging the policy have been filed since the high court's reversal.

Meanwhile decisions could come down at any time in two other cases involving "don't ask, don't tell". One was brought in California by the Log Cabin Republicans, a political organization for gays. (story) The other was filed in the U.S. Court of Federal Claims, which generally deals with cases involving money. That plaintiff, who was separated from the Army, is seeking to recover his pension and is challenging the ban in the process.