JURIST - Paper Chase: Federal appeals court upholds challenge to 'Don't Ask, Don't Tell' military policy

[JURIST] The US Court of Appeals for the Ninth Circuit [official website] ruled [PDF text] Wednesday that the US military cannot dismiss a soldier on the basis of sexual orientation alone, departing from the reasoning used to defeat similar cases in the past [JURIST report]. The court's holding may signal a significant new challenge to the military's long-standing "Don't Ask, Don't Tell" policy [statute text; HRC backgrounder]. The ruling reinstates a lawsuit brought by a US Air Force major who was discharged when officials found out she had been in a relationship with another woman; a lower court had dismissed the case, finding that the Supreme Court's holding in Lawrence v. Texas [opinion; Duke Law case backgrounder] did not render "Don't Ask, Don't Tell" invalid. The appeals court disagreed, holding that the military must demonstrate that the specific dismissal was necessary to further an important government interest. AP has more. AFP has additional coverage.

The appeals court relied on Lawrence v. Texas in finding that consenting adults have a right to decide on private matters relating to sexual activity, and one of the three judges on the panel argued that the current decision did not go far enough to protect that "fundamental" right. Military discharges for sexual orientation have decreased [Washington Post file report] in recent years, possibly due to lax enforcement of the policy during personnel shortages. Lawmakers in February 2005 cited a Government Accountability Office report [text, PDF] to criticize the policy [JURIST report] and its negative effect on recruitment and retention of military personnel.

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