‘Don’t ask, don’t tell’ challenge rejected

Posted June 08, 2009, at 11:11 p.m.

WASHINGTON — The Supreme Court on Monday agreed with the Obama administration and refused to review Pentagon policy barring gays and lesbians from serving openly in the military.

The court said it will not hear an appeal from former Army Capt. James Pietrangelo II, who was dismissed under the “don’t ask, don’t tell” policy.

The federal appeals court in Boston earlier threw out a lawsuit filed by Pietrangelo and 11 other veterans. He was the only member of that group who asked the high court to rule that the Clinton-era policy is unconstitutional.

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“I think this decision is an absolute travesty of justice and I think every judge on this court should be ashamed of themselves,” said Pietrangelo, who served six years in the Army, seven years in the Vermont National Guard and fought in Iraq in 1991. “It’s nothing short of rubber stamping legalized discrimination, the same way Nazi Germany legalized discrimination against Jews.

“The Supreme Court is not infallible, they get things wrong, and they got it wrong this time,” he said.

During last year’s campaign, President Obama indicated he supported the eventual repeal of the policy, but he has made no specific move to do so since taking office in January. Meanwhile, the White House has said it won’t stop gays and lesbians from being dismissed from the military.

In court papers, the administration said the appeals court ruled correctly in this case when it found that “don’t ask, don’t tell” is “rationally related to the government’s legitimate interest in military discipline and cohesion.”

Pentagon spokesman Bryan Whitman referred requests for comment to the Justice Department, but said the military policy “implements the law.”

“The law requires the [Defense] Department to separate from the armed services members who engage in or attempt to engage in homosexual acts; state they are homosexual or bisexual; or marry or attempt to marry a person of the same biological sex,” Whitman said in a statement.

A legal advocacy group vowed to press ahead with efforts to reverse the policy despite the legal setback.

“We don’t see that at all as bad news for repeal,” said Kevin Nix, spokesman for the Servicemembers Legal Defense Network. “What happened today puts the ball back into the court of Congress and the White House to repeal the law, and that’s where we think it should be right now.”

Nix said there are no objective studies showing unit cohesion, morale and order are harmed by openly gay people.

“There are people out there and still serving, and the unit is not crumbling beneath their feet,” he said, adding that attitudes among troops and society are far different than they were in the 1990s when the policy was instituted.

“Times have changed; fast forward 16 years,” Nix said. “The service members in Iraq and Afghanistan — their attitudes toward gay people are very different than some retired generals in their 50s and 60s who served in the 20th century. It’s a different world.”

Opposition to gay marriages, for example, has eased nationwide and six states have legalized same-sex unions. New Hampshire, Massachusetts, Connecticut, Maine, Vermont and Iowa allow gay marriage, though opponents hope to overturn Maine’s law with a public vote.

Polls show younger Americans are far more tolerant of gay marriage than are older generations.

Pietrangelo, who was in the Vermont National Guard at the time of his discharge in 2004, said politicization of the issue is the only option left.

“We need political agitation, we need to make it a civil rights issue,” he said. “Gay America needs to wake up and realize we have no options other than to march on Washington D.C., until America feels enough shame to change something.

“What it’s going to take is 30 million gay Americans getting off their butts and standing in front of the White House demanding gay equality,” said Pietrangelo, who has since moved back to his native Ohio.

The “don’t ask, don’t tell” policy was established in 1993. President Clinton had to abandon efforts to allow gays to serve openly in the armed forces after facing strong resistance from the military and members of Congress.

Last year, the federal appeals court in San Francisco allowed a decorated flight nurse to continue her lawsuit over her dismissal. The court stopped short of declaring the policy unconstitutional, but said that the Air Force must prove that ousting former Maj. Margaret Witt furthered the military’s goals of troop readiness and unit cohesion.

The decision by the 9th U.S. Circuit Court of Appeals was the first that evaluated “don’t ask, don’t tell” through the lens of a 2003 Supreme Court decision that struck down a Texas ban on sodomy as an unconstitutional intrusion on privacy.

The administration did not appeal that ruling to the Supreme Court and Witt’s lawsuit is ongoing.

The appeals court in Pietrangelo’s case also took the high court decision into account, but concluded that it should defer to Congress’ determination that the policy fosters cohesion in military units.

The case is Pietrangelo v. Gates, 08-824.

Associated Press writers Pauline Jelinek and Jesse Holland in Washington and Mark Pratt in Boston contributed to this report.

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