Judge calls "Don't ask, don't tell" unconstitutional

RIVERSIDE, Calif. — A federal judge on Thursday declared the U.S. military's ban on openly gay service members unconstitutional and said she will issue an order to stop the government from enforcing the "don't ask, don't tell" policy nationwide.

U.S. District Judge Virginia Phillips said the ban violates the First and Fifth Amendment rights of gays and lesbians. "Don't ask, don't tell" bars the military from asking about the sexual orientation of service members but requires discharge of those who acknowledge being gay or are discovered engaging in homosexual activity, even in the privacy of their own homes off base.

In her ruling, Phillips said the policy doesn't help military readiness and instead has a "direct and deleterious effect" on the armed services.

The Log Cabin Republicans, a 19,000-member group that includes current and former military members, filed a lawsuit in 2004 seeking an injunction to stop the ban's enforcement. Phillips will draft the injunction with advice from the group within a week, and the federal government will have a week to respond.

After-hours e-mails requesting comment from Department of Justice attorney Paul Freeborne and from the Pentagon were not returned.

The Log Cabin Republicans said more than 13,500 service members have been fired since 1994.

"This decision will change the lives of many individuals who only wanted to serve their country bravely," said the group's attorney, Dan Woods.

Woods argued during the two-week nonjury trial in Riverside that the policy violates gay military members' rights to free speech, open association and right to due process as guaranteed by the Fifth Amendment.

He said the ban damages the military by forcing it to reject talented people as the country struggles to find recruits in the midst of a war. Lawyers also submitted remarks by President Obama stating "don't ask, don't tell" weakens national security.

Freeborne had argued the policy debate was political and that the issue should be decided by Congress rather than in court.

Government lawyers also said Phillips lacked the authority to issue a nationwide injunction.

The ruling is expected to intensify political pressure in Washington, D.C., to act on legislation to repeal "don't ask, don't tell," which remains stalled in the Senate despite support from Obama and the Democratic congressional leadership.

Obama has called the ban a threat to national security, and the U.S. House in May passed legislation to repeal "don't ask, don't tell" if a Pentagon study determines the military can adapt to the change without harming defense readiness.

Despite Obama's criticism of the policy, the Justice Department vigorously defended "don't ask, don't tell" and tried to undercut the case with a technical legal challenge over whether the named plaintiffs were dues-paying members of the Log Cabin Republicans.

Six military officers discharged under the policy testified during the trial. A decorated Air Force officer testified that he was let go after his peers snooped through his personal e-mail in Iraq.

Material from the Los Angeles Times is included in this report.