Log Cabin Republicans does not have “standing” to file its lawsuit challenging the anti-gay military policy known as “Don’t Ask, Don’t Tell,” a federal judge in Los Angeles ruled in preliminary motions on March 22.

However, Judge George P. Schiavelli gave Log Cabin until April 28 to file an amendment to the complaint that fulfills the terms outlined in his ruling.

The lawsuit, Log Cabin Republicans v. U.S.A., was filed in October 2004 and claimed that DADT was unconstitutional in light of the Supreme Court’s Lawrence v. Texas decision that struck down state sodomy laws.

“A lawsuit should not be necessary when our military has lost thousands of needed military personnel under this policy,” Log Cabin president Patrick Guerriero said at the time the suit was filed. “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.”

Judge Schiavelli zeroed in on what many lawyers thought might be a principle vulnerability of the suit: “The complaint does not identify any specific LCR member who was injured or will be injured by the policy.”

The organization had argued that the punitive nature of the policy made it unwise to name their members who currently serve in the military.

Schiavelli acknowledged that risk, “Nevertheless, the court notes that there have been numerous challenges to the military’s policy of homosexuality where individual servicemen and women have openly identified themselves as plaintiffs.

“While LCR has sufficiently alleged possible injuries related to the policy, it has not demonstrated that any of its individual members have suffered injury-in-fact,” Schiavelli wrote. “… As the case stands now, the injury alleged is only hypothetical and conjectural and, therefore, insufficient to confer associational standing.”

Schiavelli ordered LCR to identify, by name, at least one of its members injured by the subject policy if it wishes to proceed with this action. He then outlined the characteristics of such a plaintiff as an active member of Log Cabin, who is or has served in the military, and has been injured by the policy. He gave them until April 28 to do so.

LCR president Guerriero said they are in discussion with their members who are in the military and with their attorneys about whether to meet the judge’s request or appeal his ruling.

“I don’t want to get into a public fight with the judge, but he could have made that ruling a long time ago,” Guerriero said.

There also are ways that the names of the plaintiffs could have been made known to the judge in order to allay his concerns while still protecting the identities of the men and women who are serving.

One possible candidate who immediately comes to mind is Steve May, then an Arizona state legislator in the Army Reserves who was called back to active duty in 1999, and then was prosecuted under DADT. His term of service expired before those proceedings were completed.

Complicating the situation is the fact that the lead attorney who filed the pro bono suit on behalf of Log Cabin, Marty Meekins, subsequently filed a same sex-sexual harassment discrimination suit against his firm, White & Case. While the matter was privately resolved, he is no longer with the firm.

The Servicemembers Legal Defense Network filed a challenge to DADT in Boston in December 2004 that included a dozen named plaintiffs who had been kicked out of the military because they are gay or lesbian. Preliminary motions were heard last summer and a ruling on them is overdue.