Federal Judge Finds ‘Don’t Ask, Don’t Tell’ Policy Unconstitutional

July 03, 1997

In a strongly worded decision, a federal district court judge, for the second time, struck down as unconstitutional the military's "Don't ask, Don't tell" policy used to keep openly gay and lesbian service members from serving in the armed forces.

U.S. District Court Judge Eugene Nickerson of Brooklyn in issuing this morning's 48-page ruling in the case of Able v. USA, argued that the policy violates service members' rights to equal protection under the law. "For the United States government to require those self-identifying as homosexuals to hide their orientation and to pretend to be heterosexuals is to ask them to accept a judgment that their orientation is in itself disgraceful and they are unfit to serve," said the Judge. Judge Nickerson first declared the policy unconstitutional in March 1995. However, a year ago a three-judge panel of the Second Circuit Court of Appeals vacated that ruling and sent the case back for reconsideration. Today's decision is the outcome of that reconsideration.

National Gay and Lesbian Task Force Executive Director Kerry Lobel hailed the decision, stating that "the Judge has shown extreme courage in ruling for the second time that the military ban tramples on the constitutional rights of gays and lesbians in the military." According to the Servicemembers Legal Defense Network, (SLDN), the militaryÕs hush policy has resulted in a dramatic increase in military discharges of gays and lesbians since the policy was instituted. An SLDN report shows that there was a 43% increase in discharges of gays and lesbians in the military after a year under the new policy which went into effect in 1994, and an 18% increase in discharges during 1995-96.

"These figures answer the question of whether or not the military has gone on a witch hunt for gay servicemembers," added Lobel. "Judge Nickerson's decision is very encouraging and should inform other courts who look at this policy in the future."


The mission of the National Gay and Lesbian Task Force is to build the political power of the lesbian, gay, bisexual and transgender (LGBT) community from the ground up. We do this by training activists, organizing broad-based campaigns to defeat anti-LGBT referenda and advance pro-LGBT legislation, and by building the organizational capacity of our movement. Our Policy Institute, the movement’s premier think tank, provides research and policy analysis to support the struggle for complete equality and to counter right-wing lies. As part of a broader social justice movement, we work to create a nation that respects the diversity of human expression and identity and creates opportunity for all. Headquartered in Washington, D.C., we also have offices in New York City, Los Angeles, Miami, Minneapolis and Cambridge.