Monday, June 8, 2009
The United States Supreme Court issued its order today denying the petition for a writ of certiorari in PIETRANGELO, JAMES E. V. GATES, SEC. OF DEFENSE, ET AL., Case No. 08-824 (at page 6 of Order) which challenged the "don't ask, don't tell policy." The First Circuit, Cook v. Gates, 528 F.3d 42, 103 Fair Empl.Prac.Cas. (BNA) 826 (1st Cir. 2008), upheld the policy against due process, equal protection, and first amendment challenges, ultimately deciding that
constitutional challenges presented in this case are all aimed at a federal statute regulating military affairs. Although the wisdom behind the statute at issue here may be questioned by some, in light of the special deference we grant Congressional decision-making in this area we conclude that the challenges must be dismissed.
One Judge on the three-judge panel, Saris, a district judge sitting by designation, dissented on the first amendment issue. The petition for certiorari presented the following questions:
Whether 10 U.S.C. § 654 and its regulatory scheme (collectively “Don't Ask, Don't Tell”) violate due process, equal protection, and free speech.
Whether, even in the Military, the prejudice of group A against group B may be a legitimate basis for the government to deny equal benefits to group B. Specifically, whether the prejudice of heterosexual service members against homosexuals is a legitimate basis for the Government to exclude homosexuals from the Military.
Whether the District Court and the Court of Appeals improperly refused to hear plaintiffs' chill/overbreadth claim and their as-applied equal-protection claim.
However, it seems these questions will have to wait for another case - - - or perhaps executive and legislative action. For our previous discussions of Don't Ask, Don't Tell, see here, here, and here. Interestingly, this denial is garnering more news coverage than the Caperton opinion issued by the Court today, discussed below.