Judge Rules Firing of Lesbian Under 'Don't Ask Don't Tell' Unconstitutional


Obama previously has called the military's policy toward gays "discriminatory" and pledged that ending it was a promise "that this administration is going to keep."

Justice Department lawyers defended Don't Ask, Don't Tell before Judge Phillips when the case went to trial in July, but they seemed only to go through the motions, calling no witnesses or offering other evidence for its defense -- arguing only that Congress, rather than a court, should decide policy.

"It'll be an interesting decision for our president to decide whether to appeal this case," said Woods. "He's said that Don't Ask, Don't Tell weakens national security, and now it's been declared unconstitutional. If he does appeal, we're going to fight like heck."

The case was brought in 2004 by the Log Cabin Republicans, a political organization that supports equal rights for gays and lesbians. The group has argued that the policy, which was put in place in 1993, violates gay service members' rights to free speech, open association and due process.

Judge Phillips agreed.

"The Don't Ask, Don't Tell [policy] infringes the fundamental right of United States service members in many ways," she wrote. "The Act denies homosexuals serving in the armed forces the right to enjoy 'intimate conduct' in their personal relationships ... [and] to speak about their loved ones while serving their country in uniform. ... It discharges them for including information in a personal communication from which an unauthorized reader might discern their homosexuality."

"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."

The Log Cabin Republicans estimate that 13,500 gay military service members have been ousted under the rules since 1994.

Seventy-five percent of Americans say gays who disclose their sexual orientation should be allowed to serve in the military, according to a recent ABC News/Washington Post poll, up from 44 percent 17 years ago.

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