For First Time, NY Federal Judge Strikes Down Entire Law Barring Gays From Military Service

(NEW YORK, July 2, 1997) -- In the first full defeat of the military's 'Don't Ask, Don't Tell' statute, a federal judge in New York today struck down the law, saying it unconstitutionally imposes special rules on gay troops.

U.S. Judge Eugene Nickerson of the Eastern District of New York rejected both the conduct and speech portions of the law, ruling that they violate the Constitution's equal protection guarantee and serve no purpose but to placate the fears of some heterosexual troops.

Lambda Legal Defense and Education Fund and the American Civil Liberties Union, which jointly brought the case, Able v. U.S.A., praised the ruling as a breakthrough toward ending the government's discriminatory treatment of lesbians and gay men in the military.

"We are now one step closer to having this archaic law overturned once and for all," said Matt Coles, director of the ACLU's Lesbian and Gay Rights Project. "This case is about the most basic American value: equal treatment, one set of rules for everybody. The entire law, both its conduct rules and speech rules, violates that principle."

Lambda Legal Director Beatrice Dohrn said, "This is the first court to strip away all of the military's euphemistic justifications. Judge Nickerson explains that the military's cloaking its discrimination in gay-only-conduct rules cannot shield it from the Constitution. Any law based on prejudice is unconstitutional. The decision gives us strong ammunition for the inevitable appeal."

Following argument in his Brooklyn courtroom November 18, Judge Nickerson issued a 48-page ruling, saying, "It is hard to imagine why the mere holding of hands off base and in private is dangerous to the mission of the Armed Forces if done by homosexuals but not if done by a heterosexual."

Nickerson also sharply rebuked the government's argument that the law is needed to maintain military readiness, saying that the government had made "an outright confession that 'unit cohesion' is a euphemism for catering to the prejudices of heterosexuals."

The ruling today was prompted by a federal appeals court decision last July that sent the case back to Judge Nickerson for further action. Although Nickerson ruled in March 1995 that the law's restrictions on speech were unconstitutional, the Second Circuit U.S. Court of Appeals held that the validity of the entire scheme depended on the "conduct" portion of the ban and directed Nickerson to reexamine the law on those grounds.

The "conduct" portion of the ban sets up special rules for lesbian and gay service members, requiring them to remain celibate and refrain from any affectionate behavior. Similar rules do not exist regarding heterosexual conduct. Under the "statements" portion, gay troops are prohibited from saying anything that may reveal their sexual orientation.While other cases have been winding their way up the courts, Able is the only case that presents a direct challenge to both portions of the ban. Two "statements" cases are currently pending before the Ninth Circuit: Holmes v. Perry and Watson v. Perry.

In February, the Ninth Circuit upheld the military's ban in Philips v. Perry (an individual "conduct" case). Two other "statements" cases -- Richenberg v. Perry in the Eighth Circuit and Thomasson v. Perry in the Fourth Circuit -- have also resulted in decisions upholding the policy. The U.S. Supreme Court declined to hear an appeal of a Fourth Circuit ruling last October.

While today's decision will be studied by other courts, its impact will be felt first by the six lesbian and gay plaintiffs in the case, who could have faced discharge proceedings because of their involvement in the suit. Such proceeding were barred by Nickerson's ruling.

Lambda's Dohrn said, "Thanks to the courage of the six service members in this case, a very simple argument has prevailed: The government must use the same rules for lesbian and gay service members as for non-gay service members. The nation's major employer is not exempt from the Constitution."

"The military's ban on gay troops will eventually fall," added the ACLU's Coles. "Like most fair-minded Americans, this ruling understands that it doesn't make sense to discharge able-bodied service members simply for their sexual orientation. Once again, the public and the courts are ahead of our elected officials in embracing this simple fact."

(Able v. U.S.A., 94 CV 0974)

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