by Eric Resnick

Boston--Two federal circuit courts have come to different conclusions about �don�t ask, don�t tell� in the last month, making a Supreme Court showdown more likely if the law is not repealed first.

The First Circuit Court of Appeals in Boston upheld the measure this week, disagreeing with a Ninth Circuit ruling that the military ban on open gays and lesbians may no longer meet constitutional muster since the Supreme Court struck down sodomy laws.

The Ninth Circuit�s May 22 opinion says the military must prove that allowing openly gay and lesbian servicemembers is bad for morale and unit cohesion, and that the standard of proof was set very high by the top court�s 2003 Lawrence v. Texas ruling.

The Lawrence decision declared sexual activity between consenting adults of the same sex �private, constitutionally protected conduct.�

Before then, court challenges to the military policy failed because the government was able to use an earlier Supreme Court decision upholding sodomy laws. But the 1986 Bowers v. Hardwick ruling was overturned by Lawrence.

The Ninth Circuit case and this week�s Cook v. Gates were filed after Lawrence.

The federal judge that heard Cook three years ago dismissed it, saying that the 12 plaintiffs, all discharged gays and lesbians, had no claim because Lawrence has no bearing on the military policy.

The Circuit Court agreed on June 9, in a 21 decision. The judges hearing the case were Jeffrey R. Howard, a George W. Bush appointee, Senior Judge Levin H. Campbell, a Richard Nixon appointee, and District Judge Patti B. Saris, a Bill Clinton appointee, who dissented from the opinion.

Writing for the majority, Howard turned back all three of the points being appealed. He� asserted that the court does not need to apply the high standard of �strict scrutiny,� that military life is different enough from civilian life that another set of rules is required, and that �don�t ask, don�t tell� doesn�t violate a servicemember�s freedom of speech.

The 70-page opinion includes a lengthy and detailed discussion of the Lawrence decision, then details the process by which Congress came up with the policy after lengthy hearings, some of which are described.

�When the government attempts to intrude upon the personal and private lives of homosexuals, the government must advance an important governmental interest . . . and the intrusion must be necessary to further that interest,� Judge Ronald M. Gould wrote in the Ninth Circuit opinion three weeks ago.

In contrast, Howard opined this week, �Lawrence did not identify a protected liberty interest in all forms and manner of sexual intimacy.�

�Lawrence recognized only a narrowly defined liberty interest in adult consensual sexual intimacy in the confines of one�s home and one�s own private life,� wrote Howard. �The court made it abundantly clear that there are many types of sexual activity that are beyond the reach of that opinion.�

�Here, the Act [the �don�t ask, don�t tell� law] includes such other types of sexual activity,� Howard wrote. �The Act provides for the separation of a service person who engages in a public homosexual act or who coerces another person to engage in a homosexual act. Both of these forms of conduct are expressly excluded from the liberty interest recognized by Lawrence.�

Saying that the powers of Congress to regulate the military trump the court�s ability to rule on those powers, Howard continues, �It is unquestionable that judicial deference to congressional decision-making in the area of military affairs heavily influences the analysis and resolution of constitutional challenges that arise in this context.�

�The circumstances surrounding the Act�s passage lead to the firm conclusion that Congress and the Executive studied the issues intensely and from many angles, including by considering the constitutional rights of gay and lesbian service members,� Howard continued.

�Congress ultimately concluded that the voluminous evidentiary record supported adopting a policy of separating certain homosexuals from military service to preserve the �high morale, good order and discipline, and unit cohesion� of the troops,� Howard wrote.

Howard cited a Senate Armed Services Committee legislative report anticipating the eventual overturning of Bowers for the purpose of illuminating the intent of Congress.

�If the Supreme Court should reverse its ruling in Bowers and hold that private consensual homosexual acts between adults may not be prosecuted in civilian society, this would not alter the committee�s judgment as to the effect of homosexual conduct in the armed forces.�

The plaintiffs also argued that �don�t ask don�t tell� violates a 1997 Supreme Court ruling against an anti-gay Colorado constitutional amendment, Romer v. Evans, which says that the government cannot deny a group equal protection out of animus.

Howard countered, �Congress has put forward a non-animus based explanation for its decision to pass the Act. Given the substantial deference owed Congress� assessment of the need for the legislation, the Act survives rational basis review.�

Howard concluded that �don�t ask don�t tell� doesn�t interfere with servicemembers� freedom of speech.

�The Act does affect the right of military members to express their sexual orientation by establishing the possibility of adverse consequences from announcing their sexual orientation,� Howard wrote.

�But the Act�s purpose is not to restrict this kind of speech. Its purpose is to identify those who have engaged or are likely to engage in a homosexual act as defined by the statute.�

�The law is thus aimed at eliminating certain conduct or the possibility of certain conduct from occurring in the military environment, not at restricting speech,� Howard concluded.

Servicemembers Legal Defense Network, which represented the plaintiffs, said June 10 that they are �weighing all options in light of the court�s decision.�