The court said it will not hear an appeal from former Army Capt. James Pietrangelo II, who was dismissed under the military’s 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 policy is unconstitutional. In 1993, President Bill Clinton established the policy as a compromise after strong resistance from the military and Congress toward allowing gays to serve openly in the armed forces.
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.
During last year’s campaign, President Barack 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.
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.