NEW YORK -- A federal appeals court July 1 sent back a challenge to the Pentagon's two-year-old "Don't Ask, Don't Tell" law and ruled that a lower court must decide whether the constitution allows the government to treat lesbians and gay men in the military differently than non-gay servicemembers.
A three-judge panel for the U.S. Second Circuit Court of Appeals unanimously ruled that a ban on sailors and soldiers who identify themselves as gay would be constitutional only if the government has the right to subject lesbians and gay men to different rules than those imposed on non-gay servicemembers concerning speech, relationships, and intimate conduct.
In the case brought by the American Civil Liberties Union and Lambda Legal Defense and Education Fund, the court ruled on the government's appeal of the decision last year by U.S. District Court Judge Eugene Nickerson. The appeals court vacated Nickerson's ruling and remanded the case back to his Eastern District Court in Brooklyn, New York.
Lambda Legal Director Beatrice Dohrn said, "We now have the opportunity to demonstrate the unconstitutionality of a law that prohibits behavior for lesbians and gay men that is permitted and even commonplace for non-gay people -- things as simple as holding hands. The Second Circuit agreed with us that, if the military's harsher rules for gay people's behavior cannot be justified, then the entire ban must fall."
"The appeals court did not uphold the law," said Matthew Coles, director of the ACLU's Lesbian and Gay Rights Project. "Instead it reframed the question. Today's ruling puts the spotlight where it belongs: on the unequal treatment of lesbians and gay men. This is what we've been challenging from the beginning. If we're successful again at the lower court, the entire ban will be declared unconstitutional."
The case challenged the ban on behalf of six service members, none of whom were facing discharge under the policy. Nickerson rejected the policy as "Orwellian" and "inherently deceptive," and struck it down on First and Fifth Amendment grounds.