Reporting from Washington — A ruling by a federal judge in California declaring the military's "don't ask, don't tell" policy unconstitutional adds to growing momentum to end the nation's ban on gays and lesbians serving openly in the military, and the only question may be whether Congress or the courts makes the decision.
In May, the House voted to repeal the ban, as did the Senate Armed Services Committee, and President Obama said he looked forward to signing a bill repealing the ban. "This legislation will make our armed forces even stronger and more inclusive by allowing gay and lesbian soldiers to serve honestly and with integrity," he said.
Adm. Mike Mullen, chairman of the Joint Chiefs of Staff, called the repeal "the right thing to do."
The Defense Department bill that includes the repeal of "don't ask, don't tell" is ready for final action in the Senate, and gay rights advocates are hopeful because they need only a majority vote for passage. But the Senate has a crowded docket until after the November elections.
"We are facing a critical moment, but we're in the best possible place we could be because it [repeal] is in the bill," Allison Herwitt, legislative director for the Human Rights Campaign, said Friday.
In August, Sen. John McCain (R-Ariz.) blocked the Senate from taking up the Defense bill because it contained the repeal of "don't ask, don't tell."
McCain called the proposed repeal "purely a political promise on the part of the president of the United States and the members on the other side of the aisle, and it is disgraceful to have it on this legislation without a survey being done about our battle effectiveness and the morale of the men and women in the military from whom I am hearing all the time."
Yet U.S. District Judge Virginia A. Phillips' opinion issued Thursday in Riverside presented a damning case on how "don't ask, don't tell" has worked. Phillips argued the military has violated its own policy and has been hypocritical in enforcing it.
She cited examples of officers with excellent records who were discharged, even though they had kept their sexual orientation a secret. Michael Almy, a major in the Air Force, was revealed to be gay based on a search of his private e-mails in Iraq.
"It appears that in prosecuting the case against Major Almy, the USAF may have violated the 'don't ask, don't tell' policy," the judge wrote.
Phillips said the evidence shows that not even the military believes soldiers known to be gay or lesbian have harmed the military's effectiveness. She noted that the Army has "continued to deploy gay and lesbian members of the military into combat, waiting until they have returned" to their home bases to discharge them for being gay.
The ruling by Phillips, who was appointed by President Clinton in 1999, was the third decision this summer by a federal judge striking down prohibitions against gays and lesbians as unconstitutional.
In July, U.S. District Judge Joseph Tauro in Boston ruled the Defense of Marriage Act unconstitutional because it denied equal federal benefits to gay and lesbian couples who were legally married in Massachusetts.
In August, U.S. District Judge Vaughn Walker in San Francisco struck down California's ban on same-sex marriage as unjustified because the right to marry is fundamental.
In Thursday's decision, Phillips followed a similar path by concluding that the military's policy against gays and lesbians could not be justified by the evidence presented.
While all three decisions face appeals, they increase the odds the Supreme Court will be called upon to decide squarely whether the Constitution permits laws that discriminate against persons based on their sexual orientation.
Phillips is the first judge to rule the "don't ask" policy unconstitutional, but hers is not likely to be final word. While she could issue an order telling the Pentagon to end it, the Justice Department could go the 9th Circuit Court of Appeals in San Francisco or to the Supreme Court and obtain an order putting her decision on hold while an appeal goes forward.
The Pentagon declined to comment on the judge's decision, referring questions to the Justice Department.
The Pentagon is undertaking a survey of 400,000 service members to learn what the potential impact of a repeal might be, a survey in which the language has been criticized by gay rights groups who worry it will engender a negative response. Defense Secretary Robert Gates says he wants any change in policy to await the outcome of the survey, due Dec. 1.
Senior military officials seem resigned to a new era of gays serving openly, though not all of them believe it's a good idea. Mirroring the larger society, younger military officers are seen as more accepting.
"There is no scientific evidence to support the claim that unit cohesion will be negatively affected if homosexuals serve openly," wrote Col. Om Prakash, an active duty officer in the Air Force, in an award-winning essay in the October 2009 issue Joint Force Quarterly. "The challenges will not be insurmountable or affect unit cohesion and combat effectiveness."
After Thursday's ruling, advocates of equal treatment for gays said they saw victory as near. Among them was Alexander Nicholson, an Army linguist and interrogator who was discharged under the "don't ask, don't tell" policy. He became the executive director of Servicemembers United, a group fighting the policy, and he was one of the plaintiffs who sued.
"This is a historic moment and a historic ruling for the gay military community," he said afterward. "We are finally on our way to vindication."