Judge rules 'don't ask, don't tell' unconstitutional

The case is the biggest legal test of the military policy in recent years. An injunction is possible, but so are appeals.

September 10, 2010 at 3:47AM

RIVERSIDE, CALIF. - A federal judge in Riverside declared the U.S. military's ban on openly gay service members unconstitutional Thursday, saying the "don't ask, don't tell" policy violates the First Amendment rights of lesbians and gay men.

U.S. District Judge Virginia Phillips said the policy banning gays did not preserve military readiness, contrary to what many supporters have argued, saying evidence shows that the policy in fact had a "direct and deleterious effect" on the military.

The lawsuit was the biggest legal test of the law in recent years and came amid promises by President Obama that he will work to repeal the policy.

The decision will not change the policy right away; the judge called for the plaintiffs to submit a proposed injunction limiting the law by next Thursday, and invited defendants to submit their objections to the plan a week after that. A decision would follow, and even then would likely be stayed pending appeals.

The ruling comes just over a month after a federal judge in San Francisco tossed out California's voter-approved ban on same-sex marriage, providing back-to-back victories for gay rights advocates seeking policy changes in the courts that have eluded them in Congress and at the ballot box.

The case was filed by the Log Cabin Republicans, the largest political organization for gays in the GOP, in 2004.

"Don't ask, don't tell" prohibits the military from asking about the sexual orientation of service members but requires discharge of those who acknowledge being gay or are discovered engaging in homosexual activity, even in the privacy of their own homes off base. Log Cabin Republicans said more than 13,500 service members have been fired under the policy since 1994.

Attorney Dan Woods, who represents the Log Cabin Republicans, contended that the policy violates gay military members' rights to free speech, due process and open association.

Department of Justice attorney Paul Freeborne argued that the issue is political and should be decided by Congress rather than in court.

The ruling is expected to intensify political pressure in Washington to act on legislation to repeal "don't ask, don't tell," which remains stalled in the Senate despite support from Obama and the House.

The Associated Press and New York Times contributed to this report.

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PHIL WILLON, L os Angeles Times