Federal judge throws out suit challenging ‘Don’t Ask, Don’t Tell’

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BOSTON (AP) – A federal judge on Monday dismissed a lawsuit filed by 12 service members challenging the military’s “don’t ask, don’t tell” policy.

“Don’t ask, don’t tell,” established in 1993 under the Clinton administration, prohibits the military from asking about the sexual orientation of service members but requires discharge of those who acknowledge being gay or engaging in homosexual activity.

The service members had argued the policy violates their constitutional rights to privacy, free speech and equal protection under the law.

However, the Bush administration in court documents argued that Congress, in approving “don’t ask, don’t tell,” recognized that the military is characterized by its own rules and traditions, including some restrictions that would not be accepted in civilian society.

The policy “rationally furthers the government’s interest in maintaining unit cohesion, reducing sexual tensions and promoting personal privacy,” the government argued.

U.S. District Judge George A. O’Toole Jr. on Monday dismissed the suit filed by the Servicemembers Legal Defense Network.

“Don’t ask, don’t tell” has been upheld by appeals courts in several other jurisdictions.

One of the reasons the service members filed the lawsuit in Boston is because the appeals court here – the 1st Circuit – has never been asked to rule in a case involving the policy.

In their lawsuit, the service members claimed that the policy violates their First Amendment rights because it forces them to remain silent about their true sexual identity.

O’Toole rejected that argument in his ruling.

“The policy …. is, by its terms, directed at homosexual conduct or the propensity or intention to engage in such conduct. The fact that one might speak about one’s conduct, or one’s propensity or intention to engage in certain conduct, does not mean that a governmental regulation pertaining to the conduct is also an impermissible restriction on speaking about it,” O’Toole said.

A spokesman for the Servicemembers Legal Defense Network said they would likely appeal the ruling to the 1st Circuit, although a final decision has not yet been made.

“We’re obviously disappointed in the court’s decision,” said the spokesman, Steven Ralls.

“We continue to believe the military’s ban is unconstitutional, and there is no reason lesbian, gay and bisexual Americans should be prohibited form serving our country. The men and women in this lawsuit represent the best of our Armed forces. They are patriotic veterans and we should welcome their contributions and honor their commitment to our country.”

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