US judge rejects gay troops ban

A US judge declared that ‘don’t ask, don’t tell’ violates the constitutional rights of gay troops [File: EPA]

A federal judge has issued an injunction stopping enforcement of the “don’t ask, don’t tell” policy, ending the US military’s 17-year-old ban on openly gay troops.

The landmark ruling, made on Tuesday by Virginia Phillips, US district court judge, was widely cheered by gay rights organisations that credited her with getting accomplished what the White House – and Washington politics – could not.

The “don’t ask, don’t tell” policy prohibits the military from asking about the sexual orientation of service members but bans those who are gay from serving openly.

Under the 1993 policy, service men and women who acknowledge being gay or are discovered engaging in homosexual activity, even in the privacy of their own homes off base, are subject to discharge. 

Policy declared unconstitutional

US justice department attorneys have 60 days to appeal. Legal experts say they are under no legal obligation to do so and could let Phillips’ ruling stand.

In an 86-page opinionissued on September 9, Phillips declared the law unconstitutional after a two-week nonjury trial in federal court in Riverside and said she would issue a nationwide injunction.

The Log Cabin Republicans, who support equal rights for gays, asked her for an immediate injunction so the policy can no longer be used against any US military personnel anywhere in the world.

Government attorneys objected, saying such an abrupt change might harm military operations in a time of war. They had asked Phillips to limit her ruling to the members of the Log Cabin Republicans, a 19,000-member group that includes current and former military service members.

The justice department attorneys also said the US congress should decide the issue – not her court. Phillips disagreed, saying the law does not help military readiness and instead has a “direct and deleterious effect” on the armed services by hurting recruiting during wartime and requiring the discharge of service members with critical skills and training.

She said the law violates the free-speech and due process rights of service members after listening to the testimonies of military officers who have been discharged under the policy.

Government response

The federal government is reviewing the ruling and has no immediate comment, Tracy Schmaler, a justice department spokesman, said.

Legal experts say the US administration could choose not to appeal her ruling to end the ban – but justice department attorneys are not likely to stay mum since Barack Obama has made it clear he wants congress to repeal the policy.

Al Jazeera’s Rosiland Jordan, reporting from Washington, DC, said organisations working on behalf of gay rights will be on guard to ensure the injunction is followed.

“Service organisations … say they are going to be watching to see whether the Pentagon in fact stops all efforts to discharge those members that they believe are either gay or lesbian,” she said.

“If that does not happen, then they will go to court to try to get them to comply with the judge’s order.”

Crucial opportunity

The US senate blocked a bid to lift a ban on gays from serving openly in the military on September 21 when Democratic supporters of repealing the policy ran against a wall of Republican resistance.

Gay-rights advocates say they worry they lost a crucial opportunity to change the law when senate Republicans opposed the defence bill earlier this month because of a “don’t ask, don’t tell” repeal provision.

If Democrats lose seats in the upcoming elections, repealing the ban could prove even more difficult – if not impossible – next year.

This is the second high-profile case involving “don’t ask, don’t tell” in the past month. On September 25 a US district court judge ordered that US air force reserve Major Margaret Witt be reinstated.

Witt was discharged from the military in 2006 when her partner’s ex-husband informed the military of her sexual orientation.