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Judge in California rules on military's ban on openly gay service members

By Robert Barnes
Washington Post Staff Writer
Friday, September 10, 2010; 1:31 AM

A federal judge in California said Thursday that the U.S. military's ban on openly gay service members violates the Constitution, the most recent in a string of court rulings overturning restrictions on the rights of the country's gay men and lesbians.

U.S. District Judge Virginia A. Phillips said the government's "don't ask, don't tell" policy is a violation of due process and First Amendment rights. Instead of being necessary for military readiness, she said, the policy has a "direct and deleterious effect" on the armed services.

Citing testimony at a two-week trial in July by experts and former service members, Phillips wrote: "All of these examples demonstrate that the act's restrictions on speech not only are broader than reasonably necessary to protect the government's substantial interests, but also actually serve to impede military readiness and unit cohesion rather than further these goals."

She granted a request for an injunction to stop the military from discharging openly gay service members, but allowed the government time to appeal the ruling.

Phillips's decision is likely to put more pressure on Congress to act on pending legislation that would repeal the policy, which forbids the military to ask about a service member's sexual orientation but retains a ban on gays serving openly. The House voted in May to repeal the act, but the legislation is stalled in the Senate.

Meanwhile, even though President Obama supports the repeal, his Justice Department defended the law before Phillips. Defense Secretary Robert M. Gates has said he believes Congress should not implement a repeal until the military first completes a study on how to integrate gay men and lesbians into the ranks.

The ruling comes just over a month after U.S. District Judge Vaughn R. Walker in San Francisco said a California's voter-approved ban on same-sex marriage was unconstitutional.

And earlier this summer, a judge in Boston said the federal Defense of Marriage Act violated the Constitution. The act denies federal benefits to same-sex couples even in states where their marriages are legal.

All the decisions will begin working their way through the federal appeals court system.

It is expected that the Supreme Court at some point will be called upon to decide the same-sex marriage issues. But "don't ask, don't tell" might be disposed of through the political process.

"It could well be the catalyst that is needed to drop some of the opposition we've seen in the Senate" to holding a vote, said Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network, a group that has been lobbying Congress to end "don't ask, don't tell."

"This should not linger in the courts. It should be resolved by Congress, this year," Sarvis said.

The California case was brought by the Log Cabin Republicans, a 19,000-member group that includes current and former military members.

"As an American, a veteran and an Army Reserve officer, I am proud the court ruled that the arcane Don't Ask Don't Tell statute violates the Constitution," said Log Cabin Republicans Executive Director R. Clarke Cooper.

Dan Woods, lead attorney for the case, added, "This is a major victory in the fight for equality and means that military service will be available to all Americans, regardless of their sexual orientation."

There was no immediate reaction from the Justice Department. During the trial, attorney Paul G. Freeborne had challenged the standing of the Log Cabin Republicans to contest the act. He also argued that the policy is a political decision to be made by Congress and not judges.

Phillips criticized the government's defense in her ruling, writing, "It again must be noted that Defendants called no witnesses, put on no affirmative case, and only entered into evidence the legislative history of the Act."

On the other side, she said, the military was hurt by discharging servicemembers who had performed well in combat and other situations, and it had forced gays in the ranks to hide their true identities, denied their ability to have personal relationships and kept them from expressing themselves even in private communications.

"In order to justify the encroachment on these rights, defendants faced the burden at trial of showing the Don't Ask, Don't Tell Act was necessary to significantly further the government's important interests in military readiness and unit cohesion," Phillips wrote. "Defendants failed to meet that burden."

Staff writer Craig Whitlock contributed to this report.

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