Federal Court Upholds Challenge to "Don't Ask, Don't Tell"

Posted by Patrick Porter, Jurist Legal News and Research at 10:30 AM on May 23, 2008.

The U.S. Court of Appeals for the Ninth Circuit ruled Wednesday that the U.S. military cannot dismiss a soldier on the basis of sexual orientation alone, departing from the reasoning used to defeat similar cases in the past. The court's holding may signal a significant new challenge to the military's long-standing "Don't Ask, Don't Tell" policy. The ruling reinstates a lawsuit brought by a U.S. Air Force major who was discharged when officials found out she had been in a relationship with another woman; a lower court had dismissed the case, finding that the Supreme Court's holding in Lawrence v. Texas did not render "Don't Ask, Don't Tell" invalid. The appeals court disagreed, holding that the military must demonstrate that the specific dismissal was necessary to further an important government interest. The Associated Press has more. AFP has additional coverage.

The appeals court relied on Lawrence v. Texas in finding that consenting adults have a right to decide on private matters relating to sexual activity, and one of the three judges on the panel argued that the current decision did not go far enough to protect that "fundamental" right. Military discharges for sexual orientation have decreased in recent years, possibly due to lax enforcement of the policy during personnel shortages. Lawmakers in February 2005 cited a Government Accountability Office report to criticize the policy and its negative effect on recruitment and retention of military personnel.

Tagged as: air force, gays in the military, don't ask don't tell, lawrence v. texas, ninth circuit