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ADF, NLF filed friend-of-the-court brief arguing policy must not be struck down

BOSTON — The U.S. Court of Appeals for the 1st Circuit ruled Monday that the military’s “Don’t Ask, Don’t Tell” policy on homosexual behavior does not violate the U.S. Constitution.  As argued in a friend-of-the-court brief funded by the Alliance Defense Fund and filed by the National Legal Foundation, the court determined that the policy is constitutional because it is based upon important considerations of military life, not irrational fears or prejudices.

“When lawmakers have to decide between a military that can most effectively defend our nation and one that becomes a forum for social experimentation, the choice is clear: our nation’s security comes first,” said ADF-allied attorney and NLF President Steven W. Fitschen.  “The military has certain obvious dynamics that make the inclusion of people who openly engage in homosexual behavior impractical.  That is the rationale behind the policy, and the court was correct to uphold its constitutionality.”

In its ruling, the court dismissed the constitutional challenges to the policy and acknowledged that it must defer to Congress’ intent in drafting it.  The policy, part of the National Defense Authorization Act for Fiscal Year 1994, states that “military life is fundamentally different from civilian life” and “success in combat requires military units that are characterized by high morale, good order and discipline, and unit cohesion.”

“As Colin Powell explained to Congress, it is very difficult to put those who are attracted to members of the same sex in the same bedrooms, barracks, showers, and latrines with those who are not.  It is an environment where people simply don’t have a choice of where they live or who they associate with,” said Fitschen.

The court noted that arguments that the policy violates the free speech rights of those who participate in homosexual behavior are without merit:  “Ultimately, the Act is justified on a content-neutral, nonspeech basis; specifically, maintaining the military’s effectiveness as a fighting force.”

The full text of the 1st Circuit’s ruling in Cook v. Gates is available here.  A copy of the ADF-funded brief submitted to the court by the National Legal Foundation is available here.

ADF is a legal alliance of Christian attorneys and like-minded organizations defending the right of people to freely live out their faith.  Launched in 1994, ADF employs a unique combination of strategy, training, funding, and litigation to protect and preserve religious liberty, the sanctity of life, marriage, and the family.

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