"This case is and always has been about just one thing," said Matthew Coles, director of the ACLU's Lesbian and Gay Rights Project. "The government says that, unlike everyone else who serves, lesbians and gay men in the military have to be celibate. Its only explanation for doing that to gay people is that it thinks straight soldiers and sailors are uncomfortable around lesbians and gay men. We say you do not discriminate against one group of Americans to make another group feel better. That is the whole case."

Lambda Legal Director Beatrice Dohrn said, "It is time for the court to call an end to the military's 'don't ask, don't tell' charade. Qualified lesbians and gay men should serve under the same rules as non-gay personnel." Dohrn added, "Judge Nickerson said it best when he noted that 'don't ask, don't tell' creates 'a degrading and deplorable condition for remaining in the Armed Services.'"

Today, April 2, the United States Court of Appeals for the Second Circuit will hear argument in Able v. USA., with the government appealing the first full defeat of the military's anti-gay statute. Ruling in the case last July 2, Eastern District Court Judge Eugene Nickerson struck the ban as unconstitutional. He said, "It is hard to imagine why the mere holding of hands off base and in private is dangerous to the mission of the Armed Forces if done by homosexuals but not by a heterosexual."

Nickerson found that the special rules that the military imposes on gay service members serve only to accommodate the anticipated anti-gay feelings of other service members. "Don't ask, don't tell" bans all same-sex, but not mixed-sex, off-duty sexual and affectionate conduct, and also prohibits gay personnel from making statements that refer to their sexual orientation.

Able differs from previous challenges in that six service members pro-actively sued, asserting that both the conduct and speech portions of the ban are unconstitutional. Other cases regarding 'don't ask, don't tell' have been in response to discharge proceedings and most have focused on the 'speech' portion of the ban and its presumption that anyone who speaks out also engages in prohibited conduct.

WHAT: Argument in Able v. USA, the only challenge of its kind to 'Don't Ask, Don't Tell'

WHO: Lambda Legal Defense and Education Fund and ACLU Lesbian and Gay Rights Project

WHERE: United States Court of Appeals for the Second Circuit United States Courthouse, 40 Centre Street, 17th Floor, Courtroom 1705 New York City

WHEN: Approximately 2 p.m. E.S.T.

Attorneys will be available for comment outside the courthouse after the hearing.

(Able v. United States of America, Case No. 97-6205)

ABLE v. USA

Background 1998

Contrary to the impression given by its moniker, "don't ask, don't tell" punishes far more than coming out. The law also embodies a gay-only prohibition on conduct that forbids, for gay men and lesbians only, any sexual or affectionate relationships and discharges gay service members for any behavior that would disclose a propensity to engage in same-sex affection or sex. The rules apply at all times and places.

Previous challenges to "don't ask, don't tell" have involved service members who simply came out (or were found out) and about whom there was no evidence of sexual conduct; those cases have focused nearly exclusively on the constitutionality of the ban on that particular speech - coming out - and on the propriety of the law's presumption, which assumes that anyone who comes out engages in the "homosexual conduct" also prohibited by "don't ask, don't tell."

The military consistently has argued that it does not intend to silence gay men and lesbians, but rather that it uses statements as evidence of conduct, which it claims to be free to regulate. Because the special, gay-only conduct prohibition under 'don't ask, don't tell" is so sweeping - including all off- duty sex and affection - the courts to date have accepted the government's defense to attacks of its speech prohibition, finding, as did the Second Circuit Court of Appeals in Able, that if the military may constitutionally require celibacy of gay men and lesbians as a condition of military service, then it is reasonable to presume that coming out indicates a propensity to engage in that broad range of prohibited conduct.

Able differs from other challenges to the military ban in that it was brought as a facial challenge, not in response to discharge proceedings but against the very nature of the law itself. Thus, it attacks the full range of the inequality that the onerous rules apply: both the speech ban and the differential rules of conduct are under attack by Able's plaintiffs.

Although they were not subject to discipline before they sued, Able plaintiffs are saying that their constitutional right to Equal Protection is violated simply by having to live under different rules than their non-gay counterparts do.

In 1996, after the government appealed Eastern District Court Judge Eugene Nickerson's ruling against "don't ask, don't tell," Able was remanded by the Second Circuit to that court for a determination on whether the law's celibacy requirement is constitutional. The appellate court reasoned that the speech ban is permissible only if the military can show a basis for the differential conduct rules. If there is no permissible basis to impose different rules of conduct on lesbians and gay men, then the speech ban too must fall, said the court.

In July, 1997, Nickerson went on to rule that the gay-only celibacy requirement serves no legitimate purpose; rather, it is imposed to assuage the preferences, prejudices, and uncomfortable feelings of some service members. He struck the entire policy as unconstitutional.

That ruling is presently on appeal to the Second Circuit.