Boston ? A federal prosecutor urged a judge Friday to dismiss a legal challenge to the U.S. military’s “don’t ask, don’t tell” policy on gay service members, arguing that only Congress can change it.

Assistant U.S. Atty. Mark Quinlivan said the rule, passed in a bipartisan vote in 1993, was debated extensively before being approved by Congress and signed by President Clinton.

“To say the case should be dismissed is not to say the debate on Congressional policy ends,” Quinlivan said, noting there is pending legislation to repeal the law.

“It is only to say it should be returned to the branch of government where it should be appropriately decided.”

But a lawyer for the 12 former service members dismissed from the military for being gay said the deference courts traditionally give lawmakers on military matters isn’t required when constitutional rights are being violated.

“Don’t ask, don’t tell” denies gay service members their rights to privacy, free speech and equal protection under the law, attorney Stuart Delery said.

The plaintiffs argue that the matter should be revisited in light of a 2003 U.S. Supreme Court decision that struck down a Texas anti-sodomy law. That ruling extended a right to privacy to consensual adult sexual relationships.