Outside editorial: 'Don't ask' may be done for

Posted: Sunday, October 17, 2010

In issuing a nationwide injunction against enforcement of the military's "don't ask, don't tell" policy, a federal judge in California may or may not have ended the demeaning practice of expelling service members who are open about their sexuality. It is still possible that a higher court could issue a stay of Judge Virginia Phillips' order while appeals are being pursued.

Nevertheless, the injunction is a landmark in the quest for equal treatment for gays and lesbians. And the cogent and comprehensive opinion on which it is based establishes not only that openly gay service members pose no threat to military readiness but that "don't ask, don't tell" actually undermines national security. The opinion should be required reading for members of the Senate, especially Republicans, who so far haven't followed their House colleagues in voting to end the policy.

It's impossible to overemphasize the unfairness and folly of "don't ask, don't tell." An unprincipled compromise between full acceptance of gays and lesbians and the sort of witch hunts that were once common in the military, the policy no longer has the support of the commander in chief or the chairman of the Joint Chiefs of Staff. The Pentagon has made it harder to investigate service members' sexual orientation, but openly gay and lesbian members are still at risk of expulsion. Finally, the rationale for the policy - that it's necessary to protect "unit cohesion" - has been disproved by the experiences of other nations, including allies of the United States.

The flaws of "don't ask, don't tell" are amply explicated in Philips' opinion, which follows the traditional judicial practice of determining whether a policy that intrudes on individual rights can be justified by an "important government interest" - in this case, military readiness. Drawing on expert testimony, the judge concluded that "don't ask, don't tell" has actually harmed the military by leading to the expulsion of linguists and medical personnel whose skills are vital. And if their presence really undermined readiness, she notes, gay and lesbian service members would be expelled while they are engaged in combat. In fact, the Pentagon delays dismissals until they return from the battlefield.

Like the recent opinion by another federal judge invalidating Proposition 8, Phillips' decision will be decried as "judicial activism." But when the political branches of government fail to vindicate individual rights, the judiciary is obliged to step in. Those who bridle at the court's intervention in this controversy should recognize that there is a simple remedy for that supposed problem: prompt repeal of "don't ask, don't tell" by Congress.

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