Feds want 'don't ask, don't tell' challenge dismissed

USA TODAY

Feds want 'don't ask, don't tell' challenge dismissed

BOSTON (AP) — A federal prosecutor urged a judge Friday to dismiss a legal challenge to the U.S. military's "don't ask, don't tell" policy on gay service members, arguing that only Congress can change it.

Assistant U.S. Attorney Mark Quinlivan 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 dismissed from the military for being gay 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 plaintiffs argue that 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 a right to privacy to consensual adult sexual relationships. Quinlivan, however, says the Texas case is irrelevant to a rule that has no criminal penalty and is unique to military life.

The "don't ask, don't tell" policy 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.

U.S. District Judge George O'Toole did not immediately rule on the government's request.

Plaintiff Megan Dresch, 22, of Phoenix, was discharged from the Army in September 2002, six months after she told an officer she was a lesbian.

"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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