Log Cabin Republicans are taking on the military’s antigay policy known as “Don’t Ask, Don’t Tell” (DADT) in a lawsuit filed Oct. 12 in Los Angeles. It is known as Log Cabin Republicans v. USA and it claims that the policy is unconstitutional in light of the Supreme Court’s Lawrence v. Texas decision last year striking down state sodomy laws.

“A lawsuit should not be necessary when our military has lost thousands of needed military personnel under this policy,” said Patrick Guerriero, executive director of Log Cabin. “However, under these circumstances, when we are a nation at war fighting a global war on terrorism, we can no longer sit by and wait for our elected officials to find the political courage to do the right thing.”

Being home to the largest military presence on the West Coast, the San Diego chapter of Log Cabin Republicans sees the issue as an important one for the organization to lend its support to.

“We as a local chapter support the efforts of the national office to end ‘Don’t Ask Don’t Tell’,” said Garrick Wilhelm, Log Cabins’ San Diego-based statewide political affairs director. “It’s discriminatory and we see it as part of our overall effort to basically bring the whole of the country to our issues instead of just the fringes. Because of our large military population, obviously we have a great interest in the discrimination that happens against gays and lesbians in the military.”

News of the challenge to DADT came as a surprise to The Servicemembers Legal Defense Network (SLDN) which has been the lead organization providing legal assistance to members of the military affected by the policy. To date those efforts have been largely administrative and have not included any constitutional challenges to DADT, but SLDN has reported that they were planning on filing their own constitutional challenge later this year.

Steve Ralls, spokesperson for SLDN, said the Los Angeles lawsuit “was a surprise” and “we were not anticipating it.” He said their attorneys are reviewing the brief, and restated SLDN’s commitment to file their own lawsuit by the end of the year.

Earlier legal challenges to gays, lesbians and bisexuals serving openly in the military were lost because of the court’s traditional deference to the military on internal matters. That was backstopped by the Supreme Court’s 1987 decision in Bowers v. Hardwick that allowed antigay state sodomy laws to stand.

Marty Meekins, in the Los Angeles office of the prestigious law firm of White & Case, is one of the lead attorneys on the lawsuit. In a telephone interview, he said the firm filed an amicus brief on the Lawrence case for Log Cabin and has been working with them on this case since April.

“It is [an] interesting endeavor to look at what has failed before and try to see a different constellation of constitutional law that wins, and I think we’ve done it,” Meekins said, adding he was not aware that SLDN was preparing to file a lawsuit. They had not discussed the matter with SLDN until making a courtesy call informing them of the California lawsuit the morning that it was filed.

“I think it’s disappointing that it was just a courtesy call and not something that they sat down with our executives and did ahead of time, but God knows we welcome anybody throwing their hat in the ring and offering their support for something we think is one of the most important issues in the country,” San Diego SLDN board member Anna Curren told the Gay & Lesbian Times.

“The situation now is that SLDN is more up to date with anything pertaining to gays and lesbians in the military than is the Department of Defense,” she added. “They get calls from the Department of Defense all the time because they are the experts in the country and that’s an enormously important thing.”

The current lawsuit came under the jurisdiction of the 9th Circuit Court, which includes California – one of the more favorable jurisdictions to launch such a legal appeal.

The suit argues that since DADT was enacted, “nearly 10,000 trained members of the United State Armed Forces have been discharged…countless other service members have chosen to leave military service rather than be subjected to investigation and discharge. In addition, countless other potential members who otherwise would have joined the United States Armed Forces did not and do not join because of the policy.”

It charges that DADT is a violation of the Due Process Clause of the Fifth Amendment, which is directly tied to the Lawrence decision, and a violation of free speech and expression as guaranteed under the First Amendment.

The final charge is violation of equal protection under the Fifth Amendment, “by intentionally creating an impermissible distinction between the status, speech and conduct of heterosexual members of the military, on the one hand, and the status, speech and conduct of homosexual members of the military, on the other hand, and by intentionally subjecting gay and lesbian members of the United States Armed Forces to different and punitive treatment.”

The suit seeks both a preliminary and a permanent injunction against enforcement of DADT.