On the heels of a State of the Union address supporting a constitutional amendment that would ban same-sex marriage, the Bush administration has asked the U.S. District Court in Boston to dismiss a lawsuit challenging the military’s “don’t ask, don’t tell” policy. However, gay and lesbian activists had reason to celebrate this week as a New York judge held that the state’s constitution does not permit the exclusion of same-sex couples from civil marriage.

“The court simply recognized that every New Yorker deserves the same promise of equality under law,” said Seth Kilbourn, vice president for Human Rights Campaign’s newly created Marriage Project, in a Feb. 4 statement. “This is about real people who are being denied real protections and security without the right to marry. Ensuring that every loving and committed couple in New York has equal access to marriage is about ensuring New Yorkers’ basic freedom.”

The challenge to the “don’t ask, don’t tell” policy grew out of the landmark 2003 Supreme Court decision that overturned state sodomy laws. Twelve soldiers that have been discharged for being gay, all of whom have served during the administration’s “war on terror,” are suing the Department of Defense to get their military jobs back. It is estimated that over 10,000 troops have been discharged under the policy since it went into effect in 1993.

This case comes as many gay, lesbian, bisexual and transgender activists are denouncing a 327-84 House vote restating the discriminatory Solomon Amendment. “This amendment gives special permission to the military to discriminate when private sector recruiters cannot,” said HRC Political Director Winnie Stachelberg. “The real employment issue in the military has to do with retention, not recruiting. One solution is to allow gay, lesbian and bisexual service members to serve openly in the armed forces.”

The military is also coming under fire for its anti-gay policies as records acquired last month showed that the number of Arab linguists discharged under “don’t ask, don’t tell” was nearly three times higher than had previously been reported. Between 1998 and 2004, 20 Arabic speakers were discharged for being gay. According to many experts, including the Sept. 11 commission, a shortage of Arabic linguists contributed to the government’s failure to predict the 9/11 attacks.

“It used to be this was seen as a gay rights issue, but now it’s clearly a national security issue,” said Nathaniel Frank, a senior research fellow at the Center for the Study of Sexual Minorities in the Military at the University of California, Santa Barbara.

One of the dismissed linguists, Ian Finkenbinder, told the Associated Press that he announced his sexuality, which had been an open secret, as he was about to return for a second tour in Iraq.

“I looked at myself and said, ‘Are you willing to go to war with an institution that won’t recognize that you have the right to live as you want to?’” said Finkenbinder. “It just got to be tiresome to deal with that — to constantly have such a significant part of your life under scrutiny.”

Two other lawsuits have been filed challenging the military’s policy since the 2003 decision. One was filed in the Federal District Court for the Central District of California by the Log Cabin Republicans, who withheld an endorsement of Bush in the 2004 election after his support of the so-called Marriage Protection Amendment. The group’s suit criticizes the policy on the basis of being contradictory to the needs of the military.

The other suit, filed in the Federal Claims Court, was brought by a former member of the Army who is challenging the ban that led to his discharge and seeking to recover his pension.