Maryann Tobin

U.S. District Judge Virginia Phillips ruled on Thursday that the "don't ask don't tell" policy for gay and lesbian members of the US military is unconstitutional. According to Judge Phillips, the rule is a violation of the First and Fifth Amendments of the United States Constitution.

The rule requires the discharge of those who admit to or participate in gay or lesbian activities, even in the privacy of their own homes, which therefore violates the Fifth Amendment right to due process. At the same time, the First Amendment right to freedom of expression is also violated.

“The Log Cabin Republicans, a 19,000-member group that includes current and former military members, filed a lawsuit in 2004 seeking an injunction to stop the ban's enforcement,” according to the Huffington Post.

More than 13,500 gay and lesbian service members have been fired since 1994. President Barack Obama promised to repeal the ‘don’t ask don’t tell’ military rule on the campaign trail in 2008, and continues to support the open admission of gay and lesbian sexual orientation without penalty.

There were six military officers who testified at the trail. All had been discharged for admitting to being gay or lesbian. In May 2010, the US House of Representatives voted to repeal ‘don’t ask don’t tell,’ but the Senate has yet to approve the measure.

Government lawyers said the California judge did not have the authority to issue a nationwide injunction, but Phillips plans to move forward with her official order anyway.

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