Andrew Holmes in the California National Guard

From Correspondent Rusty Dornin

SAN FRANCISCO (CNN) -- In California, "don't ask, don't tell" is not welcome, according to a Superior Court ruling.

Last week, a judge ruled that the state's constitution protects gays in the National Guard if they work for the state rather than federal arm of the agency.

Former 1st Lt. Andy Holmes was discharged by the California National Guard after he came out of the closet as a homosexual. But Holmes filed a class-action lawsuit, claiming that in the National Guard he was a state employee, as well as a federal one.

The judge agreed and said the National Guard cannot bar homosexuals from active duty in the state branch of the militia.

"If an individual does come out, they are simply transferred from the National Guard to the state military reserves," said Doug Hart of the California National Guard.

Holmes

The judge ruled that a gay person discharged from the federal arm of the National Guard must be given an "administrative discharge," which doesn't affect future service with the active state militia.

"Should they be outed or choose to come out and should they suffer discharge under 'don't ask, don't tell' on federal grounds, they have the opportunity to serve in the future in state active-duty positions," said Elizabeth Scott, Holmes' attorney.

Should Holmes apply to the state military reserve for active duty, Hart said, "he would be considered like any other applicant."

Holmes said he can never go back to the National Guard but hopes his legal victory will spur further efforts.

"I'm hoping people can keep their jobs and I'm hoping across the country in states that have ... similar constitutions ... those people will bring suits against their National Guards as well," Holmes said.

The California National Guard is appealing the decision.

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