COUNSEL: JOHN C. HOYLE, Department of Justice, Washington, DC (Zachary W. Carter, United States Attorney, Brooklyn, NY, Frank W. Hunger, Assistant Attorney General, Anthony J. Steinmeyer, E. Roy Hawkens, Appellate Staff, Civil Division, Department of Justice, Washington, DC, Maj. Douglas Mickle, United States Army, Arlington, VA, of counsel), for Defendants-Appellants/ Cross-Appellees.
 
BEATRICE DOHRN, New York, NY (Ruth E. Harlow, Lambda Legal Defense & Education Fund, New York, NY, Matthew Coles, American Civil Liberties Union Foundation, New York, NY), for Plaintiffs-Appellees/Cross-Appellants.
 
(Melissa Wells-Petry, Washington, DC), for Amicus Curiae Family Research Council.
 
(C. Dixon Osburn, Michelle Benecke, Servicemembers Legal Defense Network, Charles S. Sims, Gregory McCurdy, Heather Martinez, Proskauer Rose LLP, New York, NY), for Amicus Curiae Servicemembers Legal Defense Network.
 
(Jeffrey Swope, Kenneth W. Salinger, Palmer & Dodge LLP, Boston, MA), for Amicus Curiae American Council on Education, the American Association of Colleges of Nursing, American Association of Community Colleges, American Association of State Colleges and Universities, American College Personnel Association, Association of American Law Schools, Council of Graduate Schools, National Association of State Universities and Land-Grant Colleges, National Association of Student Personnel Administrators, and NAWE: Advancing Women in Higher Education.
 
(Marjorie A. Silver, Chair, Standing Committee on Sex and Law, The Association of the Bar of the City of New York, New York, NY, Valerie J. Wald, Kristine L. Franklin, Kim Hawkins, New York, NY), for Amici Curiae Association of the Bar of the City of New York.

This appeal presents a constitutional challenge to the military's "don't ask, don't tell" policy toward homosexual members of the United States military, as instituted as part of the National Defense Authorization Act for the Fiscal Year 1994 (the "Act"). The policy is embodied in § 654(b) as well as various Department of Defense ("DoD") directives. Section 654(b) provides for a service member's separation from the armed services if he or she has:

(1) "engaged in, attempted to engage in, or solicited another to engage in a homosexual act;"

(2) "stated that he or she is a homosexual or bisexual,...unless...the member has demonstrated that he or she is not a person who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts;"

(3) or has "married or attempted to marry a person known to be of the same biological sex." 10 U.S.C. §§ 654(b)(1), (2), (3).

The statute defines "homosexual act" as

"(A) any bodily contact, actively undertaken or passively permitted, between members of the same sex for the purpose of satisfying sexual desires; and

(B) any bodily contact which a reasonable person would understand to demonstrate a propensity or intent to engage in an act described in subparagraph (A)." 10 U.S.C. § 654(f)(3).

DoD Directive 1332.14(H)(1)(a) (Dec. 21, 1993), which implements the statute, provides that:

Homosexual conduct is grounds for separation from the Military Services...Homosexual conduct includes homosexual acts, a statement by a member that demonstrates a propensity or intent to engage in homosexual acts, or a homosexual marriage or attempted marriage. A statement by a member that demonstrates a propensity or intent to engage in homosexual acts is grounds for separation not because it reflects the member's sexual orientation, but because the statement indicates a likelihood that the member engages in or will engage in homosexual acts. A member's sexual orientation is considered a personal and private matter, and is not a bar to continued service under this section unless manifested by homosexual conduct...

 
A service member who has stated that he or she is gay is given the opportunity to rebut the presumption that he or she has a propensity to commit homosexual acts by presenting evidence to an administrative board that he or she "is not a person who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts." Directive 1332.14(H)(1)(b)(2).

The United States asserts that the Act "furthers the vital military goal of unit cohesion." Unity in a fighting group is an important government interest. The government further asserts concern for the "disruptive effect that the presence of members who engage in homosexual acts would have on other members of the unit" is that their presence would raise "concerns" of heterosexual service members "based on moral precepts and ethical values."

Plaintiffs (six homosexuals serving in the Armed Forces or the Coast Guard) originally filed suit on March 7, 1994, in the Eastern District of New York claiming that the Act and the DoD Directives violate their rights under the First and Fifth Amendments to free speech, equal protection, and expressive and intimate association, and violate due process by failing to give adequate notice of what speech or behavior is proscribed.

On April 4, 1994, the Federal District Court for the Eastern District of New York issued a preliminary injunction enjoining the military from taking action against the plaintiffs based on statements made in the course of the litigation (Able v. United States, 847 F. Supp. 1038 (E.D.N.Y. 1994). On June 13, 1994, the district court issued a second, broader preliminary injunction preventing the government from taking action against the plaintiffs for statements identifying themselves as homosexuals, regardless of whether or not they were made in connection with this lawsuit.

The United States appealed to the Court of Appeals for the Second Circuit. That Court held that, while the injunction had been granted pursuant to an incorrect standard and should be reconsidered, it could nonetheless remain in place pending the district court's reconsideration. See Able v. United States, 44 F.3d 128, 132 (2d Cir. 1995).

Following a four day trial, the Federal District Court for the Eastern District of New York held that 10 U.S.C. § 654(b)(2) (the "statements provision"), violated the Free Speech Clause of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. The district court concluded that the plaintiffs, who had not been the subject of discharge or other adverse proceedings, lacked standing to challenge § 654(b)(1) (the "acts prohibition") and dismissed that part of the complaint without prejudice.

The United States appealed. The Court of Appeals for the Second Circuit reversed. The Court of Appeals held that the statements provision "substantially furthers the government's interest ... in preventing the occurrence of homosexual acts in the military," and determined that "if the acts prohibition of subsection (b)(1) is constitutional...the statements presumption of subsection (b)(2) does not violate the First Amendment," because the "subsections rise or fall together,". The Court also found that plaintiffs had standing to challenge § 654(b)(1), reinstated the acts provision claim and remanded to the district court to determine whether the acts provision violates the Equal Protection Clause.

On remand, the district court held that the acts provision violates the Equal Protection Clause. See Able v. United States, 968 F. Supp. at 865.

The United States appealed, arguing that the district court failed to accord Congress the deference required in cases involving the military and that under the correct standard § 654 is constitutional.

A divided Court of Appeals for the Second Circuit agreed with the United States and subsequently reversed the judgment of the district court.

The appellants appeal, arguing that the statute at issue is violative of the Constitution's First and Fifth Amendments.