Federal court upholds 'Don't Ask, Don't Tell'

Federal court upholds 'Don't Ask, Don't Tell'

by Nick Langewis

On Monday, the First Circuit Court of Appeals upheld the dismissal of Cook v. Gates, brought by twelve discharged gay and lesbian military servicemembers, against Secretary of Defense Robert Gates and Secretary of Homeland Security Michael Chertoff, against the implementation of 10 USC § 654, commonly known as the "Don't Ask, Don't Tell" policy.

"Don't Ask, Don't Tell," enacted in 1993, requires that a gay servicemember remain in the closet in order to serve, with the intent of preserving "unit cohesion" and morale.

"SLDN applauds the perseverance of the twelve men and women who have brought this case," said Aubrey Sarvis, executive director of Servicemembers Legal Defense Network, which represented the plaintiffs along with law firm WilmerHale, "and while we are disappointed that the appeals court upheld the lower court ruling, we are encouraged to see judicial recognition that Lawrence v. Texas requires an intermediate level of scrutiny. We are consulting with the plaintiffs and assessing all possible options before making a decision on our next step."

The 2003 Supreme Court ruling on Lawrence v. Texas, effectively invalidating state sodomy laws, affirmed that two consenting adults, including of the same sex, have the right to the private exercise of intimate expression.

The plaintiffs argued that they were discharged from the military in violation of their due process and First Amendment rights, along with the right to equal protection based on sexual orientation. "Don't Ask" calls for discharge proceedings when a member of the military comes out, expresses intent to engage and/or engages in a gay sex act, or marries or attempts to marry a person of the same biological sex.

The Court deferred to Congress' original rationale when it enacted the law in 1993, finding that its intent with regard to "unit cohesion" and morale was sufficient to uphold it. It also says that using a servicemember's speech to investigate them under "Don't Ask" does not violate their First Amendment rights. The due process claim is invalid, the Court says, because it perceived a disagreement with "Don't Ask" itself rather than a claim that it was misapplied in their specific cases.

"Don't Ask, Don't Tell" has ended the military careers of over 12,000 gays and lesbians, with an estimated two joining those ranks on a daily basis.

The court's ruling, in PDF format, is available HERE.