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Supreme Court declines to review Pentagon 'Don't Ask Don't Tell' Policy

[JURIST] The US Supreme Court [official website] denied certiorari [order list, PDF] Monday in Pietrangelo v. Gates, in which the Court was asked to review the US military's "Don't Ask, Don't Tell" policy [10 USC § 654 text; HRC backgrounder], under which openly gay servicemen and women are subject to discharge. Petitioners requested that the Supreme Court review the First Circuit decision [opinion text] that upheld the policy to determine whether it violates their constitutional rights to substantive due process, equal protection, and freedom of speech [Cornell LII backgrounders]. The government's brief in opposition [text, PDF] to the petition for certiorari, however, reiterated that the petitioners' basis for the writ constituted only a facial challenge to the application of "Don't Ask, Don't Tell," and that the application of the policy did not trigger substantive due process violations since a legitimate government interest for the statute could be identified. Furthermore, the brief relied on the First Circuit's opinion that per Romer v. Evans and Lawrence v. Texas [opinion texts], rational basis was the appropriate standard of review, and under such standard, no equal protection violation was found, and that no free speech violations had occurred. The Human Rights Campaign [advocacy website], criticized [press release] the denial of certiorari and emphasized the need to repeal "Don't Ask, Don't Tell." The Servicemembers Legal Defense Network [advocacy website] said that the emphasis on repealing the law should be placed in Congress [press release], not the courts.

In upholding "Don't Ask, Don't Tell," the First Circuit held [JURIST report] that even if their decision were to result in a chilling effect on this type of speech, their analysis would remain the same. The First Circuit's decision stands in stark contrast to a ruling earlier this month by the US Court of Appeals for the Ninth Circuit, which held [PDF text; JURIST report] that a soldier could not be dismissed on the basis of sexual orientation alone.

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