No Asking, No Telling, No Justice : Federal court has opportunity to kill unfair rule on gays in the military

With courage that the brass should admire, six gay military people have asked a federal judge to do what the nation’s political leadership is either too craven or too misguided to do--declare that banning open homosexuals from the armed services is wrong.

They are bringing the first constitutional challenge to the so-called “don’t-ask, don’t-tell” policy, the 1993 compromise between President Clinton and Congress that allows gay members to remain if they keep their sexuality secret. Lawyers for the American Civil Liberties Union and the Lambda Legal Defense and Education Fund argued this week that this policy violates the plaintiffs’ rights to free speech and equal protection under the law.

They brought numerous witnesses, including the author of a 1993 RAND Corp. study--funded by the Pentagon--that concluded homosexuals are no threat to the military mission. Clearly all the old canards about security threats, blackmail and mental illness are gone.

So the Justice Department was reduced to taking a bold but risky legal strategy: calling no witnesses. It made the old, discredited claim that gays and lesbians threaten unit cohesion. It avoided the free-speech issue, saying Congress had spoken and the courts have no business micro-managing the military. The government’s stance comes down to this: Known homosexuals should be expelled because some heterosexuals don’t like them. This from a President who vowed to end the ban.

Indeed, since Congress passed the don’t-ask policy, the military itself has given ample proof for the plaintiffs’ claims. Though some commanders have protected popular gay subordinates, many others have launched witch hunts that violate even the thin protections of the law.

In the past, the courts have been reluctant to interfere with military personnel policies. But increasingly they are backing gay members, leaving a welter of conflicting trial and appellate rulings. The present case may well provide the ideal vehicle for ultimate resolution by the U.S. Supreme Court.

Presiding over the case is Eugene Nickerson, a U.S. district judge in Brooklyn, who must rule by March 31. He has a historic opportunity to sweep away decades of costly, cruel and pointless discrimination against loyal Americans.