‘Don’t Ask, Don’t Tell’ Upheld Appeals Court Rules Military’s Policy Toward Gays Is Legal

A sharply divided federal appeals court in San Francisco on Friday upheld the military’s “don’t ask, don’t tell” policy, marking another setback for advocates of gay rights in the U.S. armed services.

In a 2-1 decision, the U.S. 9th U.S. Circuit Court of Appeals ruled that there was a rational basis for the 1993 policy, which permits homosexuals to serve in the military as long as they do not announce their sexual orientation. The court validated decisions by military to expel two decorated servicemen who voluntarily admitted they were gay in 1995, even though there was no evidence that they had ever engaged in homosexual conduct.

In earlier rulings in the cases, which were consolidated on appeal, a federal trial judge in Seattle had upheld the policy, while a federal trial judge in San Francisco had ruled against it.

Friday’s ruling marked the fourth time in the past year that a federal appeals court has upheld the policy.

The federal policy calls for the discharge of any service member who “engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts.” A “homosexual act” is defined as “any bodily contact, actively undertaken or passively permitted, between members of the same sex for the purpose of satisfying sexual desires.” Moreover, the policy expressly provides for the discharge of any person who states that he is a homosexual unless he rebuts the presumption that he will likely engage in homosexual conduct.

Andrew Holmes, a first lieutenant in the California Army National Guard, and Richard P. Watson, a Navy lieutenant, challenged the constitutionality of the policy, maintaining that it violated their rights to free speech and equal protection of the laws.

Appellate Judges Charles Wiggins and Thomas Reavley rejected those arguments. They held that the government had a rational basis for excluding individuals who engage in homosexual conduct from serving in the military. The judges stressed that in adopting the policy, Congress had concluded that “military life is fundamentally different from civilian life” and that he military could impose certain restrictions that would not be acceptable in civilian society.

The two judges also found that it was rational for the government to presume from Watson and Holmes’ voluntary admissions that they were gay “that they will likely engage in homosexual conduct,” even though no evidence was offered that they had engaged in such conduct.