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Appeals Court Throws Out Challenge to ‘Don’t Ask, Don’t Tell’

Posted Jun 10, 2008 6:01 AM CDT
By Debra Cassens Weiss

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A federal appeals court has thrown out a lawsuit challenging the military’s “don’t ask, don’t tell” policy, creating a circuit split.

The Boston-based 1st U.S. Circuit Court of Appeals said Congress is given the highest deference in regulating military affairs. The 2-1 opinion (PDF) issued yesterday in Pietrangelo v. Gates dismissed challenges claiming violations of due process, equal protection and the First Amendment.

“Don’t ask, don’t tell” allows gays to remain in the military as long as they keep their sexual orientation a secret.

The case is the second to reach a federal appeals court since the U.S. Supreme Court overturned two sodomy convictions in Lawrence v. Texas. In the other case, the San Francisco-based 9th U.S. Circuit Court of Appeals allowed an as-applied due process challenge to the military policy. Witt v. Department of the Air Force

In Pietrangelo, the 1st Circuit found that Lawrence recognized "a protected liberty interest for adults to engage in consensual sexual intimacy in the home” and said the opinion applied a level of review somewhere between strict scrutiny and rational basis.

But the opinion said the protected interest occurs in “a unique context” in a military setting. Congress is given the highest deference in regulating military affairs, the court said.

A dissenter argued the statute violated the service members’ First Amendment rights.

A hat tip to How Appealing.

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