Denis Poroy  /  AP
Jen Kopfstein stands in front of the USS Midway along San Diego's waterfront on Friday. Kopfstein, who served in the Navy for five years, and 11 other service members are challenging the military's "don't ask, don't tell" policy.
updated 7/6/2005 10:13:36 PM ET 2005-07-07T02:13:36

During her first five years in the Navy, Jen Kopfstein avoided conversations about her personal life, taking the military’s “don’t ask, don’t tell” policy seriously.

“I felt like I was being forced to lie and having to be dishonest,” Kopfstein said. “I could never share anything about my family or my home life or even say what I did on the weekend. It is hurtful to do that.”

After she finally wrote a letter to her commanding officer telling him she was a lesbian, she was discharged.

Now she and 11 other servicemembers are challenging the “don’t ask, don’t tell” policy, arguing in a federal lawsuit that it violates their constitutional rights. The Bush administration is asking a federal judge to dismiss the lawsuit in a motion to be heard Friday.

‘A terrible policy’
“It’s a terrible policy,” said Kopfstein, 30, of San Diego. “It’s very detrimental to morale. It turns people into second-class citizens.

Established in 1993 under the Clinton administration, “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 engaging in homosexual activity.

More than 9,400 troops have been discharged since the policy was implemented, a number critics call astonishing with the country at war and recruitment lagging.

In court documents, the Justice Department argues that Congress, in approving “don’t ask, don’t tell,” recognized that the military is characterized by its own rules and traditions that would not be accepted in civilian society.

The policy helps in “maintaining unit cohesion, reducing sexual tensions and promoting personal privacy,” the government argues.

U.S. policy biased, plaintiffs say
But the Servicemembers Legal Defense Network, which filed the lawsuit, contends the policy is clearly discriminatory and violates rights to privacy, free speech and equal protection of the law.

“The government has never produced a shred of evidence that this is necessary for military readiness,” said executive director C. Dixon Osburn.

Derek Sparks joined the Navy just after high school and earned more than a dozen medals and commendations during his 14-year career, which included deployments for the first Gulf War and in Afghanistan.

‘Out of frustration’
In 2002, a shipmate said he had seen Sparks and two other men engaging in homosexual activity in Sparks’ office. All three men denied the accusation. During the investigation, Sparks acknowledged that he is gay.

“It was out of frustration,” Sparks said. “I had been hiding for so long and leading a double life in the Navy. At that point, I had just kind of had enough. The Navy discharged Sparks, of Seattle, in April 2002.

“Don’t ask, don’t tell” has been upheld by appeals courts in several other jurisdictions, but the appeals court here — the 1st Circuit — has never been asked to rule in a case involving the policy.

Osburn’s group is hoping a 2003 Supreme Court ruling will help their case. The ruling said state laws criminalizing homosexual sex were unconstitutional.

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