‘Dont Ask Don’t Tell’ Policy Survives Appellate Ruling

BOSTON (CN) - The 1st Circuit has upheld the U.S. military's "don't ask, don't tell" policy of separating gays and lesbians from its ranks. A three-judge panel rejected a challenge brought by 12 former members of the military who claimed the policy violates their constitutional rights.

They claim their case is bolstered by the U.S. Supreme Court's decision in Lawrence v. Texas, which invalidated two convictions under a Texas law criminalizing sodomy between consenting adults. The ruling expanded the substantive due process rights of adults engaged in consensual intimate relationships.

A federal judge dismissed their claims in 2006, and the appeals court affirmed.

The judges rejected the plaintiffs' due process and equal protection claims on the basis that Congress had provided a "rational reason" for the 1993 law: to promote unit cohesion and discipline.

Plaintiffs' First Amendment claim also failed, the court ruled, because the military does not separate anyone based solely on his or her stated sexual preference. It uses statements about sexual orientation as evidence in making its final decision, but also relies on prior homosexual conduct and a demonstrated "propensity or intent to engage in homosexual conduct," among other considerations.

In other words, gay military members can admit to being gay if they agree to obey the military's rules banning homosexual conduct.

Plaintiffs had argued that it is functionally impossible to say they are gay, and then prove they have no "propensity" to engage in homosexual activity. They also claimed that the policy chilled their speech by requiring them to censor any expression that might reveal their homosexuality, such as waving a rainbow flag or wearing a pink triangle.

The ruling is the second post-Lawrence challenge to be decided by a federal appeals court. The 9th Circuit recently reinstated part of a former Air Force major's lawsuit challenging the "don't ask don't tell" policy after she was honorably discharged for her lesbian relationship with a civilian woman.

U.S. District Judge Saris concurred with the majority's ruling, but said the "don't ask, don't tell" policy violates the plaintiffs' free-speech rights.

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