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‘Don’t Ask, Don’t Tell’ upheld by federal judge

BOSTON (BP)–A federal judge April 24 upheld the military’s “Don’t Ask, Don’t Tell” policy on homosexuals, dismissing a lawsuit filed by 12 former members of the armed forces who argue the policy is unconstitutional.

U.S. District Court Judge George A. O’Toole, Jr., a nominee of President Clinton, ruled that there is no “fundamental right” for homosexuals to serve in the military.

“[N]o controlling case has held that homosexuals generally, let alone the subset of that class that the plaintiffs comprise — openly homosexual service members as defined by [federal law] — constitute a ‘suspect class’ for equal protection purposes,” O’Toole, who serves in the U.S. District Court of Massachusetts, wrote in a 42-page opinion. “Indeed, in two cases where it might have agreed to such a holding, Romer and Lawrence, the Supreme Court rather conspicuously avoided doing so.”

In Romer v. Evans and Lawrence v. Texas, the Supreme Court expanded rights for homosexuals. But O’Toole rejected the argument by the 12 former armed service members that Romer and Lawrence logically should lead to the overturning of “Don’t Ask, Don’t Tell.” All 12 are homosexual.

Under the military’s policy, personnel are not asked about their sexual preference. But if they disclose that they are homosexual, they are removed from service.

The lawsuit was brought on behalf of the former service members by a private firm and the Servicemembers Legal Defense Network — an organization working for the reversal of the policy. Although the policy was supported by both Republicans and Democrats when it was adopted in the early 1990s, that may not be the case anymore. A bill in the U.S. House that would overturn “Don’t Ask, Don’t Tell” has 114 co-sponsors. In addition, John Kerry, the Democratic presidential nominee in 2004, openly supported the reversal of “Don’t Ask” during the campaign.

But O’Toole said Congress had the authority under the U.S. Constitution to adopt the policy.

“The Constitution grants to Congress the power ‘[t]o provide for the common Defence,’ ‘[t]o raise and support Armies,’ ‘[t]o provide and maintain a Navy,’ and ‘[t]o make Rules for the Government and Regulation of the land and naval Forces,'” O’Toole wrote.

O’Toole also noted that during congressional hearings while the policy was being debated, military leaders said allowing openly homosexual members to serve 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.”

“The legitimacy of the end Congress sought to serve -– maintaining effective military capability by maintaining high standards of morale, good order and discipline, and unit cohesion — cannot be doubted,” O’Toole wrote. “Thus, in this case, if there is a problem with the congressional enactment of the policy, it lies in the relationship of the means selected to promote that concededly legitimate end.”

O’Toole added that if the policy is to be reversed, it should be done in the political realm, and not through the courts.

According to the Associated Press, the Bush administration argued in legal briefs that the policy “rationally furthers the government’s interest in maintaining unit cohesion, reducing sexual tensions and promoting personal privacy.”

It is not known if the former service members will file an appeal.

    About the Author

  • Michael Foust