Date: Tue, 18 Jun 1996 12:47:37 -0400 From: SLDN1@aol.com Subject: federal court cases Attached is the information regarding the current federal court cases challenging "Don't Ask, Don't Tell, Don't Pursue." =20 THE ROAD TO THE SUPREME COURT UNDER "DON=92T ASK, DON=92T TELL, DON=92T PURSUE" AT THE APPELLATE LEVEL Able v. Perry. On March 30, 1995, Judge Nickerson for the District Court fo= r the Eastern District of New York ruled that the new policy violated both th= e First and Fifth Amendments of the United States Constitution and enjoined t= he military from discharging the six plaintiffs in the case. Judge Nickerson called the new policy "Orwellian" and "draconian." A three judge panel for the Second Circuit Court of Appeals heard the case on appeal on January 16, 1996. No opinion has been issued to date. Holmes v. Perry. In early April 1996, Judge Armstrong, a Bush appointee, o= n the District Court for the Northern District of California, ruled that the "Don=92t Ask, Don=92t Tell, Don=92t Pursue" policy violated California Nati= onal Guard Lieutenant Andy Holmes=92 Fifth and First Amendment rights. She held that the current restrictions on service by gay personnel catered to the invidious prejudices of others. The Ninth Circuit Court of Appeals has consolidated Holmes=92 case on appeal with Watson v. Perry. Oral arguments= are scheduled for the week of July 8, 1996. Philips v. Perry. On March 17, 1995, Judge Dwyer for the Western District f= or the District of Washington ruled that the military could discharge a male servicemember for admitting to a relationship with another male without violating the First or Fifth Amendments of the Constitution. Judges Fletcher, Reimer and Noonan of the Ninth Circuit Court of Appeals heard the case on appeal on March 4, 1996, but no opinion has been issued. Richenberg v. Perry. On December 11, 1995, Judge Strom for the District Cou= rt for the District of Nebraska ruled that the Air Force did not run afoul of the Constitution by discharging Captain Richenberg for stating that he is gay. Judge Strom conceded that "there is certainly prejudice against homosexuals in the armed forces" and "there is little doubt that the policy affects speech," but the court refused to "second-guess" the military=92s g= ay policy. Judges Arnold, McGill and Luken of the Eighth Circuit Court of Appeals heard the case on April 8, 1996. No opinion has been issued to dat= e. Selland v. Perry. On November 2, 1995, Judge Young for the District Court for the District of Maryland in Baltimore ruled that the Navy could dischar= ge a gay officer who stated he is gay and in a "monogamous relationship" without violating the First or Fifth Amendments of the Constitution given t= he deference federal courts sometimes give to military policies. Selland obtained a stay of Judge Young=92s opinion. Selland will appeal his case t= o the Fourth Circuit Court of Appeals. Thomasson v. Perry. On April 5, 1996, in a 72 page opinion, the full court for the Fourth Circuit Court of Appeals ruled 9-4 that the current military policy prohibiting statements of sexual orientation by gay personnel is constitutional. The Fourth Circuit Court of Appeals is the highest court t= o date to rule on the constitutionality of the "Don=92t Ask, Don=92t Tell, Do= n=92t Pursue" policy. The court deferred to the judgment of the military and Congress in devising the policy governing gay personnel. Former Lieutenant Thomasson had worked directly for the Admiral in charge of the Navy=92s gay policy, and received strong support from the Admiral for his continued service. Thomasson has until July 5, 1996 to decide whether to petition fo= r review by the United States Supreme Court. Watson v. Perry. On March 7, 1996, Judge Zilly in the Western District for the District of Washington ruled that the Navy can discharge a gay officer for saying that he is gay in circumstances where the Navy can infer that th= e statement conveys information about "homosexual conduct." Judge Zilly rule= d that the Navy could properly infer conduct from Lieutenant Watson=92s state= ment that he would not "rebut the presumption" required by current Navy policy. Judge Zilly had ruled that the old policy violated the Fifth Amendment in Cammermeyer v. Aspin when the Washington State National Guard discharged Colonel Cammermeyer for honestly admitting that she is a lesbian. Lieutenan= t Watson has obtained a stay of Judge Zilly=92s order and remains on active d= uty. The Ninth Circuit Court of Appeals has consolidated Watson=92s case with Holmes v. Perry. Oral arguments have been scheduled for the week of July 8= , 1996. AT THE DISTRICT COURT LEVEL Barnes v. Perry. Former Seaman Amy Barnes will challenge her discharge from the United States Navy this summer before Judge Sullivan of the District Court for the District of Columbia. Barnes was the victim of a witch hunt that targeted up to sixty women on board the USS Simon Lake in November-December 1995. Barnes will be the first person to challenge the "Don=92t Ask" and "Don=92t Pursue" portions of the current policy. Thorne v. Perry. On March 4, 1996, Judge Ellis for the District Court for t= he Eastern District of Virginia in Alexandria ruled that he may find that the "Don=92t Ask, Don=92t Tell, Don=92t Pursue" policy violates Lieutenant Thor= ne=92s rights of free speech under the First Amendment. Judge Ellis asked the government and Thorne=92s attorneys to supply additional briefs on the ques= tion of whether there are any circumstances under which a gay servicemember can state his or her sexual orientation and remain in the military. Supplement= al briefs were filed in mid-April 1996. It is unknown whether Judge Ellis wil= l alter his opinion in light of the decision in Thomasson v. Perry which serv= es as controlling precedent for the District where Judge Ellis sits. A decisi= on has yet to be issued. For more information about any of these cases or the current state of the "Don=92t Ask, Don=92t Tell, Don=92t Pursue" policy, please contact: C. Dix= on Osburn at (202) 328-3244.