For the fifth time, the United States Supreme Court Jan. 11 declined to hear a case challenging the constitutionality of the military's gay policy.
The case involved challenges consolidated on appeal brought by former California National Guard Lt. Andy Holmes and former Navy Lt. Rich Watson. Both had told their respective commanders that they were gay and faced discharge solely for their statements of sexual orientation.
In September 1997, the Ninth Circuit Court of Appeals ruled in favor of the government, holding that the court was not in a position to "judge the wisdom, fairness or logic of legislative choices" and that the court owed special "deference" to the military. In light of that deference, the court ruled that the discharge of service members who say that they are gay did not raise concerns about their rights to free speech or equal protection of the laws.
The Supreme Court's decision today not to hear the challenge is not a definitive ruling, but it is the fifth time it has rejected a challenge to the gays in the military policy. The Supreme Court had previously rejected challenges brought by former Navy Lieutenants Paul Thomasson, Tracy Thorne, and Dirk Selland, former Navy Petty Officer Marc Phillips and former Air Force Captain Rich Richenberg.
"While the decision today is disappointing, it is not a surprise," said C. Dixon Osburn, Co-Executive Director of Servicemembers Legal Defense Network, an independent legal aid organization that monitors "Don't Ask, Don't Tell, Don't Pursue." "The Supreme Court rarely takes a case unless there is disagreement among the appellate courts, and right now, there is none," Osburn added.
"The fight for gays in the military, however, continues unabated," Osburn stated. "There is a second wave of litigation being launched that is asking courts to force the Pentagon to enforce its own rules not to ask, pursue and harass service members. And we are winning those cases."
On December 23, 1998, a District Court for the District of Columbia ruled in Turner v. Cohen that the Navy had violated the Administrative Procedure Act by giving "absolutely no indication of the grounds" on which it based its decision to uphold Turner's discharge in light of an opinion by the Board for Correction of Naval Records that Turner's discharge was "based on suspicion and rumor and not on credible evidence."
Along with the case of Master Chief Petty Officer Timothy McVeigh, the Turner decision marked the second time in a year that a federal court had ruled against the Navy for its handling of "Don't Ask, Don't Tell, Don't Pursue" cases.
"Don't Ask, Don't Tell, Don't Pursue" was adopted in 1993 after President Clinton's initial effort to end restrictions on service by gays, lesbians and bisexuals serving openly in the military sparked heavy opposition in Congress.
Since that time, gay discharges in the military have steadily increased. In 1997, the last year for which numbers are available, the Pentagon reports that it fired 997 service members for being gay, a 62% increase since the inception of the current policy and the highest number of gay discharges since 1989.