Federal Judge Eugene H. Nickerson, of the U.S. District Court in Brooklyn, has ruled that the military’s “don’t ask, don’t tell” policy regarding lesbians and gay men is unconstitutional. Nickerson has also become the first judge to rule that the military’s ban on lesbians and gay men is unconstitutional. The judge ruled that the “don’t ask, don’t tell” policy violates a person’s first amendment rights because the military discharges a person for declaring that he is gay or she is a lesbian. The judge also ruled that the ban on lesbians and gay men violates the equal-protection guarantee of the fifth amendment.
In 1995, Nickerson made a similar ruling in the same case regarding the “don’t ask, don’t tell” policy. The government appealed the 1995 decision, but an appeals court refused to affirm or sustain the ruling. Instead, the appeals panel sent the case back to Nickerson and asked for a ruling regarding the constitutionality of a ban on lesbians and gay men in the military. In making his second ruling on the case, Nickerson commented on the government’s claim that the policy was needed for unit cohesion, “a euphemism for catering to the prejudices of heterosexualsIt assumes that, provided homosexuals stay in the closet, heterosexuals will believe there are no homosexuals present in their unit. In fact, homosexuals are present and are entitle to be present.”