Second Circuit Court of Appeals Upholds 'Don't Ask, Don't Tell'

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Judges dodge challenge to anti-gay policy by six active military personnel
September 23, 1998

(NEW YORK, September 23, 1998) -- The American Civil Liberties Union and Lambda Legal Defense and Education Fund said Wednesday that a federal appeals court, deferring to military authority, upheld "don't ask, don't tell."

A three-judge panel of the Second Circuit Court of Appeals unanimously ruled in Able v. USA that courts owe total deference to Congress regarding military policies and that "don't ask, don't tell" was not in violation of the First Amendment nor the Equal Protection Clause of the United States Constitution.

Lambda Legal Director Beatrice Dohrn said, "The court abdicated its constitutional responsibility by refusing to even examine 'don't ask, don't tell.' Lesbian and gay service members are prepared to defend the Constitution with their lives, but the court today says they are not entitled to basic protections simply because Congress and the military say they aren't."

"Tomorrow or the next day, just like yesterday and the day before, the government will discharge five or seven or ten loyal, brave Americans who it will admit have served their country well. The day after that, they'll do it again. And so it will go for the foreseable future," said Matthew Coles, director of the ACLU's Lesbian and Gay Rights Project. "The shame and disgrace in this belongs not to these good people, but to those in government who passed this law and those who allow it to govern the military," he added.

The 23-page decision does not analyze the rationale behind "don't ask, don't tell." It begins with a strong presumption of the policy's validity and then narrows the scope of the equal protection review customarily afforded discriminatory government action. The Court concluded that where the military is concerned, "...we will not substitute our judgment for that of Congress."

The decision reverses a ruling by U.S. District Court Judge Eugene Nickerson that had handed the anti-gay military policy its most comprehensive defeat. In July 1997, Nickerson said that the special rules that the military imposes on lesbian and gay service members serves only to accommodate the anticipated anti-gay feelings of other military personnel.

Nickerson's decision was hailed by civil rights advocates for its insightful analysis of the government's defense of "don't ask, don't tell" as nothing more than euphomisms for discrimination against lesbian and gay service members.

"Don't ask, don't tell" prohibits any off-duty sexual and affectionate conduct by lesbians and gay men, but not by heterosexuals. The military policy also prohibits gay personnel from making statements that indicate their sexual orientation.

It remains for the government to decide whether to expel the six plaintiffs because they disclosed their sexual orientation in order to challenge the policy.

Able differs from previous challenges in that the service members pro-actively sued, asserting that both the conduct and speech portions of the ban are unconstitutional. Other cases regarding don't ask, don't tell have been in response todischarge proceedings and most have focused on the 'speech' portion of the ban and its presumption that anyone who speaks out also engages in prohibited conduct.

(Able v. United States of America, Case No. 97-6205)


Contact: Lambda: Peg Byron 212-809-8585, 888-987-1984 (pager); ACLU: Emily Whitfield 212-549-2566


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