(Boston, Massachusetts) A federal appeals court has upheld a lower court ruling that the military did not violate the constitutional rights of 12 gay and lesbian servicemembers when it discharged them.

The First Circuit Court of Appeals, based in Boston, had been told that under the landmark Supreme Court sodomy ruling that said gays are entitled to equal protection under the law the 12 should be reinstated.

The former servicemembers, all of whom had served during the current war on terror, were represented by the Servicemembers Legal Defense Network.

“‘Don’t Ask, Don’t Tell’ punishes gay, lesbian and bisexual service members . . . for their sexual orientation and for their private, constitutionally protected conduct,” SLDN told the court when it heard arguments in the case last year. 

“As a result, it has denied and continues to deny them several Constitutional rights, including the right of privacy, equal protection of the law, and freedom of speech.”

But lawyers for the Bush administration argued that the sodomy ruling had no bearing on the case because the 12 could abstain from sexual activity and not reveal their sexuality.

Writing for the appellate court Judge Jeffrey Howard said that while some people may question the wisdom of the policy, the court had to defer to congressional decision making.

“[W]hile we are disappointed that the appeals court upheld the lower court ruling, we are encouraged to see judicial recognition that Lawrence v. Texas requires an intermediate level of scrutiny,” SLDN executive director Aubrey Sarvis said in a statement.

Last month, in a separate case,  the 9th U.S. Circuit Court of Appeals ruled the military cannot automatically discharge people because they’re gay in the case of a decorated flight nurse who sued the Air Force over her dismissal. (story)

The three judge panel did not strike down the military’s “don’t ask, don’t tell” policy. But the court reinstated Maj. Margaret Witt’s lawsuit, saying the Air Force must prove that her dismissal furthered the military’s goals of troop readiness and unit cohesion.

Under DADT two people every day are dropped from the military for being gay.

In the 10 years that DADT has been in force more than 10,000 personnel have been discharged as a result of thed policy, including 800 with skills deemed ‘mission critical,’ such as pilots, combat engineers, and linguists. 

The number of gay men and lesbians turned way by military recruiters is unknown.

A study conducted last year for the Servicemembers Legal Defense Network concluded that the U.S. military could attract as many as 41,000 new recruits if gays and lesbians in the military were able to be open about their sexual orientation. 

Last week, former US Sen. Sam Nunn, one of the principle lawmakers responsible for the passage in 1993 of “Don’t Ask, Don’t Tell”, said it is now time for Congress to revisit the law. (story)

Legislation to repeal DADT is currently before Congress. 

House Armed Services Subcommittee Chairwoman Susan Davis said she will hold a hearing on the bill this summer, but a vote is not expected in this session of Congress.

The legislation has 143 House co-sponsors.

In April, Lawrence J. Korb,former Assistant Secretary of Defense under President Ronald Reagan, told a joint hearing of the House Armed Services Air and Land Forces Subcommittee and the House Armed Services Readiness Subcommittee to “get rid of outmoded social restrictions,” such as DADT.

“First, repeal the ‘Don’t Ask, Don’t Tell’ policy,” Korb told the joint hearing. 

“The Army and Marine Corps cannot afford to place unnecessary obstacles in the way of qualified men and women who want to serve.” 

Last year former Secretary of Defense William Cohen and retired Chairman of the Joint Chiefs of Staff John Shalikashvili also called for the ban to be repealed. (story)