12 plaintiffs want DADT suit reinstated

Posted on 08 Mar 2007 at 8:43pm
By Denise Lavoie AP Legal Affairs Writer

Former Army captain compares military’s ban on gays to racial segregation

BOSTON Twelve gay and lesbian veterans who were dismissed under the military’s “Don’t ask, don’t tell” policy asked a federal appeals court Wednesday, March 7 to reinstate their lawsuit challenging the policy.

In arguments before the 1st U.S. Circuit Court of Appeals, one veteran compared the policy to government-sanctioned discrimination against blacks.

“Systematically in the military today, gays are being harassed, hounded, harmed,” former Army Capt. James Pietrangelo II told the court. “This is segregation all over again.”

But Gregory Katsas, a lawyer for the government, said the policy is a way to protect military unit cohesion and reduce sexual tension. He said similar concerns about romantically involved heterosexual couples led the military to create separate housing for men and women.

“Congress’ rationale is that that kind of coupling creates problems,” he said.

The “Don’t ask, don’t tell” policy prohibits the military from asking about the sexual orientation of service members but requires discharge of those who acknowledge being gay or engaging in homosexual activity.

The veterans, who served in the Army, Navy, Air Force and Coast Guard, argued in their lawsuit that the policy violates their Constitutional rights to privacy, free speech and equal protection.

U.S. District Judge George A. O’Toole threw out the suit in April last year, citing the broad authority given to Congress in establishing the country’s military policies and the in-depth Congressional hearings on the policy before it was established in 1993 under the Clinton administration.

The Servicemembers Legal Defense Network appealed O’Toole’s ruling on behalf of the veterans, arguing that at a time when the military is having recruiting difficulties, it is discharging distinguished service members because they are gay.

The Bush administration has argued in court documents that the policy “rationally furthers the government’s interest in maintaining unit cohesion, reducing sexual tensions and promoting personal privacy.”

“Don’t ask, don’t tell” has been upheld by appeals courts in several other jurisdictions but has never been ruled on by the 1st Circuit. The three-judge panel did not immediately rule.

The justices peppered lawyers on both sides with questions, including asking whether the policy had a chilling effect on speech. Katsas said only service members who are found to have a propensity to commit homosexual acts can be discharged. But Pietrangelo said an inquiry can be triggered by something as simple as marching in a gay Pride parade.

“That’s exactly how it operates to chill speech,” he said.

The 12 former service members are seeking reinstatement in the armed forces. Pietrangelo, a former JAG officer, is among the plaintiffs and was allowed to participate in the oral arguments before the court.

This article appeared in the Dallas Voice print edition March 09, 2007

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