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by Bob Roehr
them up— always and forever,” he said.
he Clinton administration was back in
Judge W alker raised the hypothetical parallel of
court Jan. 16 defending “don’t ask,
a white supremacist in the military who said he
don’t tell,” the policy that bans gay
wished to see all blacks dead. Could the Pentagon
men and lesbians from serving openly
not separate him from the military?
in the military. Last March, after a
“If he said, ‘I am a racist,’ there would be no
three-day trial of Able vs. USA, a district court judge
action,” Coles replied. “ But if he moved [beyond
ruled the policy unconstitutional because it restricted
speech] to actions, they would apply general con
the free speech and equal protection o f homosexu
duct regulations.” They would have to evaluate “on
als.
a case by case basis.” He called the “don’t ask, don’t
The government was challenging that decision
tell” policy unique.
before a three-member panel of the 2nd U.S. Circuit
Coles reminded the court that the military “does
Court of Appeals, which sits in Manhattan. The
not claim gays and lesbians are any more likely to
hearing had originally been scheduled for Decem
violate” sexual prohibitions within the Uniform
ber but was postponed when one o f the judges
Code of Military Justice.
withdrew over a possible conflict o f interest.
He attacked the “sexual tension” argument by
Deputy Solicitor General Edwin Kneedler, the
saying that separation o f men and women really
second-ranking litigator in the Department o f Jus
isn’t a parallel to homosexuals and heterosexuals.
tice, argued that Article I grants broad latitude
He readily conceded that society does
“within the constitutional frame
separate men and women, and that
work” to provide for the com
the military apes these patterns. But
mon defense. The court tradi
“cultural separation [of homosexu
tionally grants “great deference”
als] does not exist within our broader
both to Congress and to the mili
society.” Therefore, he concluded,
tary in implementing that man
there is no need for it in the military.
date.
W alker returned to the issue of
“The district court had failed
deference to Congress and the mili
to respect the balance [of com
tary. “Why shouldjudges inject them
peting interests] that Congress
selves into this?” he asked.
had struck” in crafting the “don’t
Coles replied, “ If we say there is
ask, d o n ’t te ll” policy, said
no judicial role, then we should give
Kneedler.
up the principle that people in the
Judge Pierre N. Leval, a
military have any constitutional rights
C linton appointee, was con
cerned that a statement alone is enough to boot
at all.”
Kneedler came back for a brief rebuttal period.
someone from the military because it indicates a
“propensity” to engage in “prohibited [homosexual]
He reminded the court that it had been the military
acts.”
itself that had moved to desegregate the armed
forces, not the courts.
Leval wondered whether the scrutiny o f speech
Judge Wilfred Feinberg, a Johnson appointee
would extend to statements a service member had
and former chief judge o f the circuit, asked, “If the
made in the past, say, at the age of 15.
“Does that go back for all time?” he asked.
military changed its mind today and decided to have
a racially segregated force, would the court stay
Kneedler responded, “I don’t think the policy
out?”
would categorically rule it out,” but advised that
“distance in time would be a factor.”
Kneedler conceded, “I would think not.”
Leval expressed concern for the “chilling effect”
Judge Leval listed many activities, such as going
on speech “far beyond the borders o f the military.”
to a gay bar or marching in a gay rights parade, that
He asked if it would apply forever, even after a
would be allowed under the regulations. “But it [the
military] only moves against the one who says, ‘ I am
member has left the service.
That is “yet unanswered,” Kneedler replied.
gay-’ ”
There is “no official policy decision at this point.”
Kneedler described the policy as “an accommo
Judge John M. W alker Jr., a Bush appointee and
dation” to the privacy o f homosexuals and hetero
cousin, thought the “reasoning [for the policy was]
sexuals, and the needs of the military.
grounded in the prejudice o f heterosexuals. Is that
Judge W alker asked, “What is the justification
for prohibiting sexual acts far beyond those of
the rationale?” he asked.
heterosexuals, such as hand holding?”
Kneedler said he fundamentally disagreed. He
For Kneedler it was the threatened privacy, the
said that Congress had thoroughly examined the
issue and had based the law on concerns for privacy
“ripple effect of heightened anxiety” of heterosexu
that would “undermine unit cohesion” and prohibit
als.
After oral arguments, Michele Benecke, co
homosexual acts.
director of the Servicemembers Legal Defense Net
He spoke of integrating women into the military
work, called the policy “a gag order” on lesbians and
as a parallel. In that situation, the military “solve[d]
gay men. She compared it to sexual harassment of
the problem of sexual tension” by keeping the
genders apart.
women both in and outside of the military.
Kneedler also argued that the “district court was
“ It is the most astounding case o f blaming the
in error in even entering the case,” because there was
victim that I’ve ever heard,” Benecke said.
no discharge. The court should have waited until
Beatrice Dohm, co-council on the Able case and
administrative remedies within the military had
legal director with the Lambda Legal Defense and
been exhausted. He called the case “a very abstract
Education Fund, summarized the main objective of
challenge to the prohibition.”
the case: “We want to be able to serve under the
same set of rules that everyone else serves under.”
However, when pressed by the judges, he admit
ted that military courts could entertain only proce
Most observers believe the 2nd Circuit will
dural challenges to the policy, not the constitutional
uphold the earlier decision ruling “don’t ask, don’t
ones that are the basis for this suit.
tell” unconstitutional. Its decision is not expected
Matthew Coles, director of the Lesbian and Gay
until the spring. A decision in the other lead chal
Rights Project at the American Civil Liberties Union,
lenge to the ban, the 4th U.S. Circuit Court appeal of
argued for the plaintiffs. He said the policy was
Thomasson vs. Perry, is expected sooner, possibly
meant “to prevent communication.”
as early as February.
"The military is saying, we are going to shut
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