Court Upholds ‘Don’t Ask, Don’t Tell’ Policy on Gays

The first federal appeals court to rule on the Clinton administration’s “don’t ask, don’t tell” policy upheld the measure Friday, saying openly gay service members can be banned from the military.

The U.S. 4th Circuit Court of Appeals said it is the job of elected leaders, not the judiciary, to set military policy.

The court ruled 9 to 4 against former Lt. Paul Thomasson, who was discharged from the Navy last June after giving a letter to his commander stating, “I am gay.”

Thomasson, who worked for the admiral administering the “don’t ask, don’t tell” policy, said the dismissal violated his constitutional right to free speech.

Clinton’s policy explained how to implement 1993 legislation that made law out of the military’s long-standing policy to ban service members that show homosexual conduct, try to marry people of the same sex or even state that they are homosexual.

“It was appropriate for Congress to believe that a military force should be as free as possible of sexual attachments and pressures as it prepared to do battle,” wrote Chief Judge J. Harvie Wilkinson III.

“Any argument that Congress was misguided in this view is one of legislative policy, not constitutional law,” he wrote.

Thomasson’s lawyer, Allan Baron Moore, said he has not decided whether to appeal. “Ultimately, the U.S. Supreme Court is going to have to decide these issues, whether in this case or another,” he said.

The Justice Department had no comment on the ruling.

Under the policy, a declared homosexual can avoid discharge only by proving that he or she will not engage in homosexual conduct.

The court agreed with the government’s argument that Thomasson’s statement meant he was likely to engage in homosexual conduct, which is grounds for dismissal.

But Judge Kenneth K. Hall wrote in a dissent that Thomasson was being punished for “nothing more than an expression of his state of mind. The expression was not illegal, and the fact admitted is not a ground for discharge.”