'Don't Ask, Don't Tell' Suit Dismissed

A federal judge in Boston yesterday dismissed a lawsuit challenging the military's ''don't ask, don't tell" policy, ruling that Congress has the authority to exclude gays from the armed services.
US District Judge George A. O'Toole Jr. found that Congress made a rational decision to adopt the policy in 1993 after holding lengthy hearings and concluding that openly homosexual service members would have a negative impact on the military. The policy prohibits the military from asking about sexual orientation, but orders the dismissal of personnel who disclose that they are gay, engage in homosexual activity, or are outed by someone else.
''The legitimacy of the end Congress sought to serve -- maintaining effective military capability by maintaining high standards of morale, good order and discipline, and unit cohesion -- cannot be doubted," O'Toole wrote.
But, in his 41-page decision, O'Toole added that ''deciding that Congress has made a rational choice is not the same as deciding it has made a wise choice."
O'Toole wrote that ''the remedy for bad decision-making by the Political Branches is to be found in the working of the political process."
The judge concluded that the 12 former service members who filed the suit had failed to prove that their constitutional rights were violated because they were forced to leave the service after their sexual orientation was known.
The Servicemembers Legal Defense Network, which filed the suit on behalf of the 12 people, won't make a decision on whether to appeal the decision until its lawyers have a chance to review the ruling and talk with the plaintiffs, a spokesman for the group said yesterday.
''We continue to believe that ''don't ask, don't tell" is unconstitutional and that there is no good reason to exclude lesbian, gay, and bisexual Americans from the armed services," said Steve Ralls, the spokesman for the group. ''The plaintiffs in this lawsuit are among the best and brightest that America has to offer. They're fighting to be included in the services as other Americans are fighting to leave the services and so we should welcome their commitment to our country and not turn away their offer to serve."
Charles Miller, a spokesman for the Department of Justice, would not comment on the specifics of the case, but said, ''We're pleased with the court's decision."
The suit, filed in December 2002, marks the ninth time that the policy has been challenged unsuccessfully in courts throughout the country. The plaintiffs had hoped that a 2003 US Supreme Court ruling that struck down a Texas law that made gay sex criminal had opened the door to new challenges.
The ''don't ask, don't tell" policy replaced a ban on gays in the military.
The suit estimates that there are 65,000 gays, lesbians, and bisexuals in the military. Each of the 12 plaintiffs served in the war on terrorism, some in Iraq and Afghanistan, according to the suit.
Laura Galaburda of Jamaica Plain, who was the only one of the 12 plaintiffs from Massachusetts, resigned from the Air Force in 2002 after telling her commander she is a lesbian.
In an interview with the Globe after the suit was filed, Galaburda said she was in her fourth year of medical school and working at Andrews Air Force Base in Maryland when she felt she could no longer stay silent about her sexual orientation.
Messages left at telephone numbers listed for two of the plaintiffs were not returned yesterday.
from The Boston Globe