BigLaw Partner in Court Decrying Don't Ask, Don't Tell

The Don't Ask, Don't Tell policy excludes open homosexuals from serving in the U.S. military "solely on the basis of status and conduct that is constitutionally protected," a lawyer for a gay Republican group argued as trial opened Tuesday in a case that seeks to bar enforcement of the law.

The bench trial opened before U.S. District Judge Virginia Phillips in Riverside, Calif., as debate continued in Washington over legislation to repeal the ban.

"This case involves one of the most pressing civil rights issues in our great country today: The discrimination against homosexuals by our country's military," said Dan Woods, a partner in the Los Angeles office of White & Case, who is representing Log Cabin Republicans in its challenge pro bono. "There is no legitimate basis for Don't Ask, Don't Tell, and there never has been."

Assistant U.S. Attorney Paul Freeborne, defending the statute underlying the ban despite the Obama administration's push to repeal it, continued to assert that the case shouldn't even be in trial. The government, which had four lawyers from the Justice Department's Washington office on hand Tuesday, does not plan to call witnesses or present evidence beyond explaining the legislative history of the policy, which President Clinton signed into law in 1993.

"LCR's entire case at its core is an attempt to re-do these proceedings before Congress," said Freeborne, who works for the Justice Department's civil division. "You will not hear a government witness outside of the statute and legislative history. That is what the law demands and what is appropriate in facial challenges."

The case represents the only formal constitutional challenge to Don't Ask, Don't Tell, which allows the discharge of service members who are found to have engaged in a homosexual act, make a statement that demonstrates a "propensity" to engage i ...