RIVERSIDE, Calif. — President Barack 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 challenged the policy on gays in the military during his opening statement at the non-jury trial of a lawsuit filed by the Log Cabin Republicans.
The case has put the federal government in the awkward position of defending the policy that President Obama has said should be repealed.
U.S. Department of Justice attorney Paul G. Freeborne countered that the plaintiffs were trying to force a federal court to overstep its bounds and halt the policy as it is being debated by federal lawmakers.
The U.S. House voted May 27 to repeal the policy, and the Senate is expected to take up the issue this summer.
That makes the trial unnecessary, Freeborne said, noting the government will present only the legislative history of the policy and no witnesses or other evidence during the trial.
"At the end of the day, LCR's testimony and documentary evidence are irrelevant," Freeborne told U.S. District Judge Virginia A. Phillips.
In deciding to hear the challenge, Phillips said the "possibility that action by the legislative and executive branches will moot this case is sufficiently remote."
The lawsuit by the 19,000-member Log Cabin Republicans – which include current and former military members – is the broadest challenge to the policy in recent years.
Woods said he plans to use the remarks of Obama, Defense Secretary Robert Gates and other top military commanders as evidence the policy should be overturned.
Woods argued the policy violates the rights of gay military members to free speech, due process and open association.
"If they wish to serve in our armed forces, homosexuals must conceal the core of their identity, they must lie – in violation of their honor and duty," Woods said. "Our military excludes these men and women from service solely on the basis of status and conduct that is constitutionally protected."
Woods said 29 nations, including Israel, Canada, Germany and Sweden, allow openly gay individuals to serve in their military, and gays can also serve in the FBI, CIA and even as the commander in chief of the U.S. armed forces.
Among those who will testify will be Jenny L. Kopfstein, a decorated Navy officer from San Diego who was discharged in 2002 after telling her commanding officer she was gay.
"Keeping parts of my life secret, and separate, was an incredible burden," Kopfstein stated in her written declaration. "It is an unnecessary burden, and no American sailor or soldier should be forced to bear it."
Other members of the Log Cabin Republicans will testify on behalf of an active gay serviceman who decided to not risk being discharged for appearing in court, Woods said. His name will not be released.
If the lawsuit prevails, Woods said he will ask the judge for an injunction to immediately halt use of the policy. If the government appeals, Woods said he will ask Phillips to suspend the policy until the case is decided.
"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.
In a statement e-mailed to The Associated Press, the Justice Department said it is fulfilling its duty to defend an act by Congress that is being challenged. It also noted Obama's position.
"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 case is unique in that it is not based on an individual's complaint but rather is a broad, sweeping attack on the policy.
The group says more than 13,500 service members have been fired under the law since 1994.
Some legal experts say the trial could not come at a worse time for Obama, who derided the policy but has failed to get it off the books since taking office last year.