NEW YORK The United States Supreme Court without comment declined to hear a challenge to the government's so-called "don't ask, don't tell" ban on lesbians and gay men in the military, leaving open the question as to whether the law will survive constitutional scrutiny.
The American Civil Liberties Union and Lambda Legal Defense and Education Fund said that the order does not reflect the Justices' thinking on the issue, but will open the door for other cases to reach the Supreme Court.
Lambda Legal Director Beatrice Dohrn, said "This is a sad day for Paul Thomasson, whose discharge from the Navy was unjust and unconstitutional. But, the military should feel no relief it's anti-gay policy is going to fall when its entire scheme of unfair rules for gay people comes before the court."
Matthew Coles, director of the Lesbian and Gay Rights Project of the ACLU, said, "The Court's failure to take this case changes nothing for the fight against don't ask don't tell.' It is a tragedy for Lt. PaulThomasson, an able officer whose career is now over. He deserves better."
Both groups said that other cases with more complete challenges of the ban will continue to move up the courts.
"The Court's failure to hear the case in no way signals approval of the policy or of the lower court decision," said Coles. "This was the first case challenging the new law to reach the Court. It is not at all unusual for the Court to wait to hear the views of lower courts before it acts."
Dohrn added, "The heart of the military's policy is rotten, well beyond the speech restrictions challenged in the Thomasson case. Other challenges, including the case by the ACLU and Lambda now pending on behalf of six active service members, Able v. USA, will show that the government cannot single out gay people for harsh rules and punishments."
The Supreme Court acted on an appeal of a Fourth U.S. Circuit Court of Appeals ruling this April, which upheld the discharge of former Navy Lt. Paul Thomasson in a 9-to-4 vote with three separate majority opinions. Thomasson was discharged in June 1995 under the Clinton Administration's policy when he announced in a letter to commanding officers that "I am gay."
The Fourth Circuit decision dealt solely with the portion of the law barring statements by gay service members that may reveal their sexual orientation. The case did not grapple with the portions of the law that prohibit gay people from engaging in behaviors allowed non-gay service members. Lambda and the ACLU had filed a friend-of-the-court brief in that case.
The ACLU and Lambda are co-counsel in the Able case, which the Second Circuit Court of Appeals sent back to a district court to examine the constitutionality of all portions of the ban. Final briefs in the case are due Friday to Judge Eugene Nickerson of the U.S. District Court in Brooklyn, N.Y., where arguments are likely to be heard in early November.
The Second Circuit Court of Appeals ruled in July that the government must defend the constitutionality of the conduct portion of the ban, which amounts to a celibacy requirement applied only to lesbian and gay service members.
"Don't ask, don't tell" is a misnomer," added Dohrn. "This law is about a lot more than not telling.' It's about requiring complete celibacy for lesbian and gay service members when no such rule applies to others."