WASHINGTON (AFP) — A federal appeals court has reinstated a lawsuit challenging the legality of the US military's ban on homosexuals.
The case will require the Pentagon to justify each decision to discharge a soldier based on their sexual preference..
Until now, judges have rejected without comment any challenges to the military's 'don't ask, don't tell' policy on homosexuals. The policy, adopted in 1993, tolerates homosexuals in the US military as long as they hide their sexual orientation.
A decorated Air Force nurse, Major Margaret Witt, filed the lawsuit in 2006 after she was forced into early retirement after nearly 20 years of service because military officers discovered that she had a long-term relationship with a civilian woman.
She has argued that the military's policy is an unconstitutional intrusion in her personal life.
The appeals court ruling described Witt as an "exceptional officer" who even appeared years ago in Air Force recruitment brochures.
A lower-court judge ruled threw out the case, but the three-judge appeals court reinstated it, citing a 2003 US Supreme Court ruling that invalidated laws forbidding sodomy between consenting adults.
"All of Congress's laws must abide by the United States constitution," the court said in its ruling, adding that "don't ask, don't tell" policy must undergo further scrutiny.
"It is a big victory," said Victor Maldonado, a spokesman for the Servicemembers Legal Defense Network (SLDN), a pro-gay rights group.
This is a "first-of-its-kind ruling" that will force the military to justify their policy, Maldonado said.
"The military must not only say what it wants to do, but it must actually go above and beyond and say: 'we believe this (policy) is necessary because ...'" Maldonado said.
The lawsuit is to be handled by a judge in the northwestern state of Washington.
Since the 'don't ask, don't tell' policy came into effect, some 12,000 members of the US armed forces have been forced to resign because of their sexual orientation.
The Pentagon declined to comment directly on the case, but spoke in general terms about their rules.
"Our policy implements the law Congress passed after prolonged research and debate," said Pentagon spokeswoman Eileen Lainez. The US Department of Defense "will continue to follow Congressional mandate on homosexual conduct," she told AFP.
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