ALEXANDRIA, Va. -- A divided federal appeals court April 5 upheld the Pentagon's two-year old law barring lesbian and gay men from openly serving in the military, saying that the debate belonged in the "the halls of democratic governance" and not in the courts.
The American Civil Liberties Union immediately criticized the ruling, and said the majority opinion ignored both the court's role in defending individual liberties, and the central issue in the case.
"Constitutional protections are not determined by popular vote," said Matt Coles, Director of the ACLU's Lesbian and Gay Rights Project. "If the government passes a law for no reason but to coddle the perceived fears of heterosexual troops, then a court applying the Constitution should strike it down."
In a 9 to 4 decision with three separate majority opinions, the full 4th U.S. Circuit Court of Appeals upheld the discharge of former Navy Lt. Paul Thomasson, who was dismissed last June after announcing in a letter sent to his commanding officer that "I am gay."
Writing for the dissent, Judge Kenneth K. Hall said "Lt. Paul Thomasson's career is over because it is presumed that he will misbehave in a manner that is assumed to incite the prejudices of his colleagues, whom it is speculated will abandon their duties to defend the United States rather than tolerate him in their midst."
The decision upholds a lower court opinion which was appealed by Thomasson. The appeal was joined by the ACLU, which submitted a brief co-authored by Lambda Legal Defense and Education Fund that contends that the government's so-called "don't ask, don't tell" law violates the First and Fifth amendments, and is based solely on the presumed prejudices of some service members.
"Rules should apply to everyone equally," said Coles. "But under this law, lesbian and gay Americans are subject to different rules about what they can say, and whether they can have a relationship."
Courts around the country have been grappling with this issue with mixed results. Two federal district courts have struck down the policy as unconstitutional, while two have upheld it.
Just last month, a federal judge in San Francisco ruled that the law was unconstitutional and ordered the reinstatement of Steven Holmes, a gay National Guard officer. And last year, in a case brought jointly by the ACLU and Lambda, a federal judge in New York blocked the discharge of six lesbian and gay servicemembers who had challenged the policy.
Three cases have made it to the federal appellate level, although today's decision is the first to be handed down. Arguments before a federal appeals court in the New York case were heard in January, with a ruling soon expected. The other case, brought on behalf of Navy Petty Officer Mark Philips, was argued by the ACLU's Coles last month before a three-judge panel of a federal appeals court in Seattle.
"The ACLU will fight the military's ban until it is history," said Coles. "One day, lesbian and gay service members will not be subject to witch hunts, harassment, and outright hostility. Sadly, that day will not come without the brave contributions of Paul Thomasson and others who have sacrificed their careers for justice."