Military Policy on Gays Ruled ‘Impermissible’

A federal judge ruled Friday that the military’s “don’t ask, don’t tell” policy violates the Constitution by discriminating against homosexuals, the second such ruling in the nation.

The discharge of a California Army National Guard officer, who disclosed his sexual orientation in a letter to his commanding officer, was ordered under a policy that “impermissibly relies on irrational prejudices against homosexuals as a group,” said U.S. District Judge Saundra Brown Armstrong.

The federal law and regulations “target and punish service members who simply acknowledge who they are,” Armstrong said. “This is impermissible under our Constitution.”

She dismissed the government’s argument that the policy was necessary to keep military units cohesive, calling it a thinly veiled attempt to justify prejudice.

Armstrong ordered the Guard to reinstate 1st Lt. Andrew Holmes. It was the first time a judge had overturned a discharge under the policy, said Paul Wotman, a lawyer for Holmes.

Last year, a federal judge in New York blocked the discharge of six homosexual service members who had challenged the policy.

Holmes said he was fighting for “tens of thousands of gay and lesbian service members who have served their country with courage and distinction, yet whom the government would willingly toss out because of its collective homophobia.”

Prosecutors could not be reached for comment. The ruling was obtained after business hours.

Holmes went on active Guard duty in 1991, and won several medals while serving in Germany in support of troops in the Persian Gulf War.

In June 1993, after President Clinton took office with a promise to eliminate discrimination against gays in the military, Holmes wrote to his commanding officer, saying, “As a matter of conscience, honesty and pride, I am compelled to inform you that I am gay.”

About six weeks later, the administration announced its new policy, which later was accepted by Congress. It repealed the previous ban on homosexual men and women in the military and prohibits officials from asking about sexual orientation, although it allows discharge for homosexual conduct.

A declared homosexual can avoid discharge only by proving that he or she will not engage in homosexual conduct while in the service.

Holmes was discharged as a federal officer in October 1994 and as a state National Guard member in January 1995.