- Associated Press - Tuesday, July 13, 2010

RIVERSIDE, Calif. | President Obama’s remarks that the military’s “don’t ask, don’t tell” policy weakens national security shows it should be declared unconstitutional, a lawyer for the nation’s largest Republican gay rights group told a federal judge Tuesday.

Attorney Dan Woods said in his opening statement of a U.S. District Court trial that he plans to use the president’s statements to support a lawsuit by the Log Cabin Republicans that has put the government in the position of defending the policy while Mr. Obama is pushing Congress to repeal it.

U.S. District Judge Virginia A. Phillips is conducting a non-jury trial of the lawsuit, the broadest challenge to the policy in recent years.

The 19,000-member Log Cabin Republicans organization (LCR) includes current and former military members.

Mr. Woods said that if the lawsuit prevails he will ask the judge to immediately halt use of the policy.

“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 to be engaging in homosexual activity, even in the privacy of their own homes off base.

“Our military excludes these men and women from service solely on the basis of status and conduct that is constitutionally protected,” Mr. Woods said in his opening comment. “We aim to show you at this trial that there is no legitimate basis for ‘don’t ask, don’t tell,’ and there never has been.”

U.S. Department of Justice attorney Paul G. Freeborne presented the policy’s legislative history but said the government would not present any other evidence or witnesses.

Mr. Freeborne said LCR was trying to force change through the courts when it should be up to Congress.

“LCR’s entire case is at its core an attempt to redo those proceedings before Congress,” he said.

Some legal experts say the trial could not come at a worse time for Mr. Obama, who derided the policy but has failed to get it off the books since taking office last year. Not only are midterm elections approaching, but the group suing the U.S. government is Republican.

“This trial is taking place as a direct consequence of the president’s political decision in January 2009 to put the repeal of this law on the back burner,” said Richard Socarides, an attorney and a former senior adviser to President Clinton on gay rights issues. “We shouldn’t still be living under a law that excludes people from military service because they are gay.”

Mr. Socarides asserted that the Justice Department’s defense of the policy in court is nonsensical.

“On the one hand, the president has said he’s working hard to stop these discharges. And on the other hand, the Justice Department is spending taxpayer dollars defending their ongoing right to kick people out,” Mr. Socarides said.

In a statement e-mailed to the Associated Press, the Justice Department said it is “defending the statute, as it traditionally does when acts of Congress are challenged.”

But the agency also noted the position of Mr. Obama, who is working with military leaders and Congress to repeal the law.

“The president believes and has repeatedly affirmed that ‘don’t ask, don’t tell’ is a bad policy that harms our national security and undermines our military effectiveness because it requires the discharge of brave Americans who wish to serve this country honorably,” the Justice Department said.

The government tried to block the case from going to trial, arguing among other things that it was unnecessary because of congressional debate.

The U.S. House voted May 27 to repeal the policy, and the Senate is expected to take up the issue this summer.

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