Rights Are Rights, Even in Khaki : Court denounces ‘don’t ask, don’t tell’ rule on gays in the military

With a clarity of vision and a sense of justice apparently lacking in the White House, Congress and the Pentagon, U.S. District Judge Eugene Nickerson has dealt what could well be a death blow to the so-called “don’t ask, don’t tell” law on homosexuals in the military.

From his bench in Brooklyn, Nickerson has shot out the core of the law--the portion that states that merely announcing one’s homosexuality is presumptive proof of a propensity to commit homosexual acts and therefore grounds for discharge. He declared that unconstitutional, violating the rights of gay service members under First Amendment guarantees of free speech and 14th Amendment rights to equal protection under law.

While the ruling was narrower than lawyers for the six gay plaintiffs had hoped, it represents a major victory for gay and lesbian service members. Cutting through all the baloney offered by the government defendants, Nickerson stated the obvious: Open homosexuals are barred simply because some people are prejudiced against them.

“Even if defendants do believe that heterosexual service members will be so upset by a co-worker’s mere statement of homosexuality as not to work cooperatively in the unit, such a belief does not justify a discriminatory policy,” he wrote. “Congress may not enact discriminatory legislation because it desires to insulate heterosexual service members from statements that might excite their prejudices.” Nickerson dismissed the Pentagon’s two arguments in favor of these “irrational prejudices”--that having open homosexuals violates the privacy of others and that it stirs sexual tensions. He noted that latrines and showers are no more private now as a result of the don’t-ask, don’t-tell law.

The ruling is limited to the six plaintiffs and therefore provides no protection for other gays in the military. The Pentagon has asked the Justice Department to appeal, and that could take months or even years. But Nickerson’s wise ruling provides an excellent basis for an ultimate Supreme Court ruling on this unnecessarily divisive issue.