U.S. Judge Overturns Military Gay Policy

A federal judge Wednesday issued a scathing decision striking down the military’s “don’t ask, don’t tell” policy, saying it caters to heterosexual prejudices by discriminating against gays.

In finding the rules unconstitutional, U.S. District Judge Eugene Nickerson of Brooklyn became the first federal judge to strike down the entire policy against homosexuals that includes bans against both speech and conduct.

If the ruling is upheld by an appeals court, it could pave the way for U.S. Supreme Court review. Three other appeals courts have issued rulings supporting the policy. So far, the Supreme Court has refused to review any cases.

“A service called on to fight for the principles of equality and free speech embodied in the U.S. Constitution should embrace those principles in its own ranks,” Nickerson wrote.

He said the government defended the policy by arguing it furthered the “vital military goal of unit cohesion” and by saying the known presence of homosexuals might disrupt a unit because heterosexuals might morally disapprove of gays.

“This is an outright confession that ‘unit cohesion’ is a euphemism for catering to the prejudices of heterosexuals,” he said.

The decision is his second invalidating the policy. His previous ruling in March 1995 was based on speech curbs, and the U.S. 2nd Circuit Court of Appeals last year ordered him to reconsider his decision based on the entire policy, including a ban on homosexual conduct.

In the current decision, Nickerson found the policy unconstitutional because it denies gay service members, without “legitimate reason,” the right to participate openly as equals in the defense of the nation.

“For the United States government to require those self-identifying as homosexuals to hide their orientation and to pretend to be heterosexuals is to ask them to accept a judgment that their orientation is in itself disgraceful and they are unfit to serve,” he wrote.

“To impose such a degrading and deplorable condition for remaining in the armed services cannot in fairness be justified on the ground that the truth might arouse the prejudice of some of their fellow members.”

Neither the Justice Department nor the Pentagon would comment on the ruling.

Lawyers from the American Civil Liberties Union and the Lambda Legal Defense and Education Fund, which brought the case, said the ruling applied only to the six named plaintiffs and would extend to others in the 2nd Circuit--New York, Connecticut and Vermont--only if upheld by the appeals court.

The policy, which went into effect Feb. 28, 1994, allows homosexuals to serve in the military but requires service members to keep their sexual orientation private. It also bars commanders from investigating homosexual activity unless they first receive compelling evidence such activity has occurred.