NEW YORK -- A test case challenge to the military's ban on lesbians and gay men was postponed recently when a federal appeals court judge excused himself from the case.
The case, Able v. USA, is the first case to challenge in its entirety the law barring lesbians and gay men from openly serving in the armed forces. Brought jointly by the American Civil Liberties Union and Lambda Legal Defense and Education Fund on behalf of six service members, the lawsuit contends that the so-called "don't ask, don't tell" legislation is discriminatory, based solely on prejudice, and in violation of free speech and equal protection.
Although the case was scheduled for arguments, Judge Guido Callabresi recused himself from the appeal this morning in order to avoid any appearance of partiality. While Dean of the Yale Law School, Callabresi was among 119 legal scholars who signed onto a March 1993 letter that voiced constitutional concerns about the military's ban. Government lawyers had raised the issue to the court's clerks in a letter.
Apparently, the two other members on the panel, Judges Pierre N. Leval and Wilfred Feinberg, will remain on the case. A new hearing date will likely be announced in early January after a replacement is selected.