Fed court dismisses challenge to 'Don't Ask, Don't Tell'

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The US Court of Appeals for the First Circuit Monday dismissed a challenge to the US military's "Don't Ask, Don't Tell" policy which provides for the discharge of openly gay service members. The suit was brought by 12 gay or lesbian former US-military members who had been dismissed under the policy. The appellants, who were represented by the Servicemembers Legal Defense Network (SLDN), challenged the policy on the grounds that it violated their constitutional rights to substantive due process, equal protection, and freedom of speech. The appellate court upheld a lower court ruling, stating that,

Although the wisdom behind the statute at issue here may be questioned by some, in light of the special deference we grant Congressional decision-making in this area we conclude that the challenges must be dismissed.

The court held that even if their decision were to result in a chilling effect on this type of speech, their analysis would remain the same.

The First Circuit's decision stands in stark contrast to a ruling earlier this month by the US Court of Appeals for the Ninth Circuit, which held that a soldier could not be dismissed on the basis of sexual orientation alone. In making that ruling, the Ninth Circuit found that due process required the military to demonstrate that the specific dismissal was necessary to further an important government interest, a higher burden than that imposed by the First Circuit. Both courts relied heavily on contrasting interpretations of the US Supreme Court's holding in Lawrence v. Texas, in which the Court struck down a Texas law banning sexual acts between same-sex couples.

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