Appeals court upholds ‘Don’t Ask, Don’t Tell’

By Jen Colletta
PGN Staff Writer
© 2008 Philadelphia Gay News

The First Circuit Court of Appeals in Boston upheld the “Don’t Ask, Don’t Tell” policy this week in the case of 12 former servicemembers dismissed from the military because of their sexual orientation.

In a 2-1 vote, the court upheld a lower-court ruling that dismissed a lawsuit the servicemembers filed against the military alleging that their constitutional rights had been violated.

The plaintiffs argued that the “Don’t Ask, Don’t Tell” policy violates servicemembers’ rights to due process and equal protection, as well as their First Amendment freedoms.

The plaintiffs in the case Cook v. Gates, served in the Army, Navy, Air Force and Coast Guard, withhad more than 65 years of service among them. Together, they earned more than five-dozen awards, medals and commendations.

The suit was originally filed in Massachusetts’ U.S. District Court in December 2004. That court dismissed the suit in April 2006 and the 12 plaintiffs appealed the following November.

This case is the second “Don’t Ask, Don’t Tell” challenge to reach federal court since the landmark 2003 Lawrence v. Texas ruling, in which the Supreme Court struck down the state’s sodomy laws.

Although the appeals court found that the Lawrence ruling does provide for citizens’ fundamental right to privacy, the court did not allow for a higher level of judicial scrutiny — further investigation into the reasons behind and effectiveness of the “Don’t Ask, Don’t Tell” policy — than rational basis.

“An example of rational basis is when a parent tells a child not to do something and the child doesn’t do it. A heightened level of scrutiny, though, is when the child says, ‘Why can’t I do it? I need more than your word,’” said Victor Maldonado, communications associate at Servicemembers Legal Defense Network, which is representing the plaintiffs. “We were hoping the court would say, ‘We need more from the military than just the idea that gays are disruptive. We need to take this to court and have a hearing and hear evidence.’ But that didn’t happen.”

Last month, the Ninth Circuit Court of Appeals ruled in Witt v. U.S. Air Force that the military must provide sufficient evidence that Maj. Margaret Witt’s homosexuality was a detriment to her job responsibilities. Although the court did uphold “Don’t Ask, Don’t Tell,” it was the first time a court stated that the military must rely on more than just a servicemember’s homosexuality as a reason for dismissal.

Judge Jeffrey Howard, who wrote the opinion in the Cook case, said that while the effectiveness of “Don’t Ask, Don’t Tell” is dubious, the constitutionality of the policy should be addressed by Congress.

“Although the wisdom behind the statute at issue here may be questioned by some, in light of the special deference we grant Congressional decision-making in this area, we conclude that the challenges must be dismissed,” the opinion stated.

Maldonado said that while the rulings in both Witt and Cook affirmed the right to sexual privacy provided by Lawrence, the Ninth Circuit Court remanded the case to district court for further consideration of how the principle applies to Witt’s case.

“What the First Circuit Court said basically is that they agree with the Ninth Circuit that intermediate scrutiny should be applied to issues of sexual privacy, but they didn’t follow through with that and remand it back to the district court,” he said. “We were very confused by that. The court didn’t take the next logical step. We’re pleased to see that the court upheld the fundamental right to privacy, but we’re confused by the decision to not apply that standard in the case of Cook v. Gates.”

Aubrey Sarvis, SLDN executive director, said that while the organization is disappointed that the appeals court upheld the lower court ruling, “SLDN applauds the perseverance of the 12 men and women who have brought this case.”

Maldonado said SLDN will work with the plaintiffs to review the court’s decision and plan their next step.

“It’s a very confused ruling. We have support for Lawrence but at the same time the court denied the appeal to have the case heard in court,” he said. “So we’re going to take some time to reread the decision and figure out what’s being said and then we’ll confer with our clients about what’s next.”

The Military Readiness Enhancement Act, which would repeal “Don’t Ask, Don’t Tell,” currently has 143 co-sponsors in the House.

To date, more than 11,700 servicemembers have been dismissed from the military under “Don’t Ask, Don’t Tell.”

Jen Colletta can be reached at jen@epgn.com.