U.S. to Appeal Ruling Rejecting ‘Don’t Ask, Don’t Tell’

The Clinton administration will appeal a federal judge’s rejection of its “don’t ask, don’t tell” policy for homosexuals in the military.

Asked Thursday whether the Justice Department would appeal the ruling that the policy violates the rights of gays to participate equally in national defense, Atty. Gen. Janet Reno told reporters, “Yes, it will,” but she did not elaborate.

The White House said President Clinton would not abandon the policy. “We continue to believe the policy is a good one,” said presidential spokesman Mike McCurry.

On Wednesday in New York, U.S. District Judge Eugene Nickerson ruled that a military “called on to fight for the principles of equality and free speech embodied in the United States Constitution should embrace those principles in its own ranks.”

The issue is expected to be decided eventually by the Supreme Court. Several cases around the nation are challenging the “don’t ask, don’t tell, don’t pursue” policy, which was adopted in 1993 by the Clinton administration as a compromise.

The policy allows gays to serve as long as they keep their sexual orientation to themselves and do not engage in homosexual acts. If they do not, they can be honorably discharged. In addition, commanders may not ask a service member his or her sexual orientation.

In 1995, Nickerson became the first federal judge to strike down the policy, ruling that it violated the free-speech rights of gay and lesbian troops.

But last year, a three-judge panel of the U.S. 2nd Circuit Court of Appeals said Nickerson failed to address the section of the policy that bans homosexual acts and ordered him to review his decision.

The issue of free speech was “incidental and wholly subservient to the restriction on acts,” the appeals court said.

Nickerson again concluded that the policy violates homosexuals’ free-speech rights. But this time, he also ruled they are being denied equal treatment guaranteed under the due-process clause of the 5th Amendment because the policy subjects only gays to separate, discriminatory regulations.

The judge found that for the policy “to single out gay and lesbian members denies them, without legitimate reason, the right to openly participate as equals in the defense of the nation.”

The American Civil Liberties Union and the Lambda Legal Defense and Education Fund, which brought a lawsuit on behalf of six plaintiffs--two on active duty and four reservists--said the decision, if upheld, would eliminate a cruel set of double standards applied to gay and lesbian troops.

The next step in the legal battle will be for the Justice Department to appeal to the 2nd Circuit Court of Appeals, which will hear arguments and issue a ruling.