NEW YORK (AP) — An appeals court on Wednesday overturned a lower court’s decision and ruled the military’s “don’t ask, don’t tell” policy on gays doesn’t violate constitutional rights to due process.
The 2nd U.S. District Court of Appeals reversed a judge who ruled in 1997 that the policy discriminates against gays.
The ruling comes on a 1994 lawsuit filed by six gay members of the military, who said they were considering an appeal to the U.S. Supreme Court.
All six now risk dismissal because they “came forward and said, `I’m gay and I don’t think the policy treats us fairly,'” said one of their lawyers, Beatrice Dohrn.
A Defense Department spokesman on personnel, Lt. Col. Tom Begines, said the Pentagon had no immediate comment.
The Justice Department also had no comment. A department spokeswoman, Chris Watney, said federal appeals courts in California, Virginia and Missouri have issued similar rulings since 1994, when the policy began.
The Clinton administration adopted the “don’t ask, don’t tell, don’t pursue” policy as a compromise between the views of gay-rights advocates and those flatly opposed to homosexuals in the military.
Under the policy, gays can serve as long as they keep their sexual orientation to themselves and do not engage in homosexual acts. Otherwise, they can be honorably discharged. Commanders may not ask a service member his or her sexual orientation.
In his ruling last year, U.S. District Court Judge Eugene Nickerson said the policy infringes on the due process clause of the Fifth Amendment by subjecting only gay and lesbian troops to a separate, discriminatory set of regulations.
Nickerson criticized the military for its history of intolerance toward homosexuals, at one point calling the term “unit cohesion,” a “euphemism for catering to the prejudices of heterosexuals.”
But the appeals court rejected his arguments, concluding that the policy is constitutional.
It said that beyond clear-cut cases of discrimination based on race or gender, “courts are ill-suited to second-guess military judgments that bear upon military capability or readiness.”