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Military’s Policy Ruled Unfair To Gays Judge Says It Denies Equal Participation

Responding to a challenge by a higher court, a federal judge ruled Wednesday that the military’s “don’t ask, don’t tell” policy violates gays’ rights to equal participation in national defense.

A military “called on to fight for the principles of equality and free speech embodied in the United States Constitution should embrace those principles in its own ranks,” U.S. District Judge Eugene Nickerson wrote.

Spokesmen at the Pentagon and White House said it was too soon to comment on whether there would be an appeal. But the issue is widely expected to be decided eventually by the Supreme Court. Several cases around the nation are challenging the Clinton administration’s 1993 compromise.

Nickerson was forced by an appeals court panel to review the 1995 ruling in which he became the first federal judge to strike down the policy.

He concluded in his follow-up opinion that it discriminates against gays by violating both their First Amendment free speech right and Fifth Amendment equality protections.

The judge found that for the policy “to single out gay and lesbian members denies them, without legitimate reason, the right to openly participate as equals in the defense of the nation.”

The American Civil Liberties Union and the Lambda Legal Defense and Education Fund, which brought a lawsuit on behalf of two active duty and four reservist plaintiffs, said the decision, if upheld, would eliminate a cruel set of double standards applied to gay and lesbian troops.

Nickerson has “said there should be one set of rules for everyone, straight or gay,” said Matt Coles of the ACLU’s National Lesbian and Gay Rights Project.

Under the “don’t ask, don’t tell, don’t pursue” 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. In addition, commanders may not ask a service member his or her sexual orientation.

Nickerson, a liberal judge nominated to the bench by President Carter in 1977, said in his original decision that the policy violates free-speech rights because it bars service members from saying “I am gay.”

Last year, a three-judge panel of the 2nd U.S. Circuit Court of Appeals said the lower court failed to address the section of the policy banning homosexual acts. The issue of free speech was “incidental and wholly subservient to the restriction on acts,” the appeals court said.

Nickerson responded by arguing the policy not only infringes on free speech, but also on equal treatment under the due process clause of the Fifth Amendment by subjecting only gay and lesbian troops to a separate, discriminatory set of regulations.