US 'don't ask, don't tell' policy overturned by district judge

A FEDERAL judge yesterday said she would issue an order to halt the United States military's policy requiring gay personnel not to reveal their sexual orientation, declaring it unconstitutional because it violates guarantees of free speech and other rights.

U.S. District Judge Virginia Phillips ruled that the prohibition on openly gay military service members, known as "don't ask, don't tell," has a "direct and deleterious effect" by hurting recruitment efforts during wartime and requiring the discharge of skilled service members.

The Pentagon last night referred questions on the ruling to the Justice Department, where spokesman Charles Miller said it was being examined.

Defence Secretary Robert Gates and Joint Chiefs of Staff Chairman Admiral Mike Mullen - both in favor of repealing "don't ask, don't tell" - have said they prefer that the change wait until the military completes its review. That study, due in December, includes surveys of troops and their familiesand help figure out how a change would be implemented.

The Log Cabin Republicans, a conservative gay rights group, sued thegovernment in 2004 to stop the policy, which prohibits the military from asking about the sexual orientation of personnel. Under the 1993 policy, service men and women who acknowledge being gay or are discovered engaging in homosexual activity are subject to dismissal.

Judge Phillips will draft the injunction with input from the Log Cabin Republicans this week, and the government will have a week to respond. Government lawyers said the judge lacked the authority to issue a nationwide injunction.

The U.S. Department of Justice can appeal the ruling but the government has not announced what it intends to do. The case was the biggest legal test of the law in recent years and came amid promises by President Barack Obama that he will work to repeal the policy.

"This decision will change the lives of many individuals who only wanted to serve their country bravely," said the group's attorney, Dan Woods. The Log Cabin Republicans said more than 13,500 service members have been fired since 1994.

Mr Woods argued during the trial that the policy violates rights to free speech, open association and right to due process.

He said the ban damages the military by forcing it to reject talented people as the country struggles to find recruits in the midst of a war. He also used Obama's remarks and those of top military commanders as evidence that the policy should be overturned.

The case is unique because it wasn't based on one individual's complaint about a discharge. Instead it made a broad attack on the policy.

Government attorneys presented only the policy's legislative history in their defence and no witnesses or other evidence and argued the policy debate was political and that the issue should be decided by Congress rather than in court.

In August, US District Court Judge Vaughn Walker overturned a California ballot proposition banning gay marriage. His ruling is on hold pending appeal.