Challenge of ‘don’t ask, don’t tell’ policy stalls at appellate level

Thursday, September 24, 1998

Ever since the Clinton administration and Congress devised the “don’t ask,
don’t tell” policy on gays in the military in 1993, gay rights advocates have been challenging it in court as a violation of their fundamental rights of free expression and equal protection of the laws.

Yesterday, 11 lawsuits later, what may have been the gay rights movement’s last, best chance to defeat the policy in the courts ended in failure.

The 2nd U.S. Circuit Court of Appeals upheld the policy in the case of Able v. U.S., brought by Lt. Col. Jane Able and five men in the military. Under the policy, homosexuals may remain in the armed services if they remain silent about their sexual orientation.

Without scrutinizing the policy in detail, the three-judge panel concluded — as three other federal appeals courts have also concluded — that “courts are ill-suited to second-guess military judgments that bear upon military capability or readiness.”

The court said it merely had to determine whether the policy was “rationally related” to the government’s stated goal of promoting “unit cohesion” and minimizing “sexual tension” in military settings. “We will not substitute our judgment for that of Congress.”

The appeals panel noted that in a wide range of cases involving the First Amendment, “courts have deferred to military judgments.” The rights of military personnel to circulate petitions, make political speeches and exercise their religion, can all be limited under past court rulings.

“Courts in this country essentially do not review anything having to do with the military unless it’s egregious,” said Matthew Coles of the American Civil Liberties Union.

The 2nd Circuit’s decision was a stinging defeat for gay rights advocates in part because the Able case seemed to present a better-than-usual opportunity for striking down the policy. When deciding Able at the district court level, Judge Eugene Nickerson found the law unconstitutional for creating “special rules” that applied only to homosexual conduct.

But the Able decision was an important defeat for another reason. It was the fourth federal appeals court to rule the same way on the gays-in-the-military policy. The 4th, 8th and 9th circuits, acting in six separate cases, had already found the law constitutional.

Civil liberties advocates had hoped that a win in Able would create the sort of “circuit conflict” that would invite, or even command, a review of the issue by the Supreme Court. With rare exceptions, the Supreme Court will avoid taking up an issue when all the appeals courts that have ruled on the issue have been in harmony. The justices will often decline to hear several cases on a particular subject and then agree to hear the next one, if it was decided the other way.

In the case of gays in the military, the Supreme Court had already declined to hear three appeals: Thomasson v. Perry from the 4th Circuit, Richenberg v. Perry from the 8th Circuit, and Selland v. Perry, also from the 4th Circuit. Two other cases, Thorne v. Perry and Holmes and Watson v. Perry, are pending before the Supreme Court, but few are expecting the court to accept them — or Able, if it is appealed.

“The Supreme Court seems to have established a pattern here,” said Beatrice Dohrn, legal director of Lambda Legal Defense and Education Fund, which represented Able and the five men challenging the policy. “It may well be that this is the end of this spate of cases.”

But Dohrn added, “We will continue to fight” what she described as “a blatant act of discrimination.”

C. Dixon Osburn of the Servicemembers Legal Defense Network also expressed disappointment with the Able ruling, and said it was “not quite” the end of the road for appeals. Though no other cases are pending, Osburn said the group, which aids gays in the military, is considering challenges on other grounds.

Tony Mauro covers the Supreme Court for USA TODAY and is a legal correspondent for the First Amendment Center