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First Circuit Rules on “Don’t Ask Don’t Tell” Appeal

In a decision published yesterday, the U.S. Court of Appeals for the First Circuit upheld a district court’s dismissal of Cook v. Gates, a constitutional challenge to “Don’t Ask, Don’t Tell.” While concluding that the Supreme Court’s 2003 ruling in Lawrence v Texas recognizes a fundamental right, the court denied the plaintiffs’ appeal to have their case heard in court.

In a decision published yesterday, the U.S. Court of Appeals for the First Circuit upheld a district court’s dismissal of Cook v. Gates, a constitutional challenge to “Don’t Ask, Don’t Tell.” While concluding that the Supreme Court’s 2003 ruling in Lawrence v Texas recognizes a fundamental right, the court denied the plaintiffs’ appeal to have their case heard in court.

“We are pleased with the court’s analysis of Lawrence insofar as it recognizes a fundamental liberty interest, but we are disappointed in the court’s apparent failure to apply the requisite heightened level of judicial scrutiny to the facts of this case,” said Aubrey Sarvis, Executive Director of Servicemembers Legal Defense Network.

Counsel for the plaintiffs argued that “‘Don’t Ask, Don’t Tell’ punishes gay, lesbian and bisexual service members . . . for their sexual orientation and for their private, constitutionally protected conduct. As a result, it has denied and continues to deny them several Constitutional rights, including the right to privacy, equal protection of the law, and freedom of speech.”

Kathi Westcott, SLDN Director of Legal Services, said, “Unfortunately the court’s decision rests on a misinterpretation of the language of “Don’t Ask, Don’t Tell,” and a fundamental misunderstanding of its practical application. The court relied on outdated and inaccurate Congressional testimony from 1993 and based its decision on case law predating the Supreme Court’s ruling in Lawrence.”

The plaintiffs in Cook served honorably in the United States Army, Navy, Air Force and Coast Guard, before being discharged under “Don’t Ask, Don’t Tell.” Cumulatively they have more than sixty-five years of service in the armed forces, including direct support of operations in the Middle East. Among them, they have earned more than five dozen awards, medals and commendations.

Since its implementation in 1993, “Don’t Ask, Don’t Tell” has resulted in the dismissal of more than 12,000 men and women from the armed forces. According to the Government Accountability Office (GAO), nearly 800 of those dismissed had skills deemed ‘mission-critical’ by the Department of Defense, including more than 300 language specialists. The cost to U.S. taxpayers for maintaining the ban is estimated at more than $363 million.

Cook, which was filed in December 2004 in the U.S. District Court of Massachusetts, was appealed to the First Circuit Court of Appeals in November 2006 following a decision by the district court to dismiss the case. The ruling comes just weeks after the Ninth Circuit Court of Appeals overturned a district court’s grant of a motion to dismiss in Witt v. United States Air Force, another case challenging the constitutionality of “Don’t Ask, Don’t Tell.”

Plaintiffs and their counsel at Servicemembers Legal Defense Network and the law firm of WilmerHale are weighing all options in light of the court’s decision.

Copies of today’s decision, biographical information on each of the plaintiffs and related information on “Don’t Ask, Don’t Tell” are available online at www.sldn.org.

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