Supreme Court Turns Down 'Don't Ask' Challenge

By William Branigin
Washington Post Staff Writer
Monday, June 8, 2009 3:02 PM

The Supreme Court today declined to hear a constitutional challenge to the Pentagon's "don't ask, don't tell" policy banning openly gay people from serving in the U.S. military, a move that could effectively leave it to the Obama administration to resolve the long-controversial issue.

In a separate action, the court also ruled unanimously that Americans cannot sue the current Iraqi government in U.S. courts for acts by the regime of Saddam Hussein, who was driven from power by U.S. invasion forces in 2003.

In the "don't ask, don't tell" case, the Supreme Court sided with the Obama administration, which had urged the justices not to hear the appeal against the policy, even though Obama is on record as opposing it. The court thus spared the administration from having to defend in court a policy that the president eventually wants to abolish pending a review by the Pentagon.

The case, Pietrangelo v. Gates, was filed by James E. Pietrangelo II, a former Army captain who was discharged from the military for being gay. He was originally part of a group of 12 plaintiffs who were dismissed under the policy because of their sexual orientation. The U.S. Court of Appeals for the 1st Circuit in Boston rejected their suit last year.

Pietrangelo appealed to the Supreme Court on his own, while most of the other plaintiffs asked the court to not to review the case, preferring to allow the administration to deal with the issue.

Their position was supported by the Servicemembers Legal Defense Network (SLDN), a nonprofit group that helps military personnel affected by "don't ask, don't tell." It said another case that reached the U.S. Court of Appeals for the 9th Circuit in San Francisco was a better vehicle to bring the issue before the Supreme Court.

In the 9th Circuit case, former Air Force Maj. Margaret Witt, a decorated flight nurse, was allowed to pursue her lawsuit over her dismissal. The appeals court did not declare the "don't ask, don't tell" policy unconstitutional but said the Air Force must prove that discharging her advanced its goals of troop readiness and unit cohesion. The court took into consideration a 2003 Supreme Court decision that struck down bans on sodomy in Texas and a dozen other states, ruling that consenting adults have a right to engage in private homosexual conduct.

In opposing Supreme Court review of the Pietrangelo case, opponents of "don't ask, don't tell" have noted that Obama pledged during his presidential election campaign to end the policy. They say he appears to proceeding carefully to end the ban by first asking the Pentagon to study the implications and report its recommendations.

When President Bill Clinton initially tried to end the military's ban on service by gays and lesbians shortly after taking office, a firestorm of criticism erupted. This led to adoption of the "don't ask, don't tell" policy in 1993.

Since then, its opponents say, times have changed, and the public is more supportive of allowing gays to serve in the military. According to a July 2008 Washington Post/ABC News poll, 75 percent of Americans favor allowing gays to serve openly in the armed services, compared with 44 percent in 1993.

In ruling that the Iraqi government cannot be sued for acts of the Hussein regime, the Supreme Court rejected lawsuits by plaintiffs including CBS News correspondent Bob Simon and cameraman Roberto Alvarez. Along with a CBS producer and a soundman, they were held by the Iraqis for more than a month in early 1991 during the Persian Gulf War.

Although foreign governments are usually immune from lawsuits in U.S. courts, federal law allows suits to go forward against state sponsors of terrorism, a description that the United States applied to the Hussein regime. But the Supreme Court agreed with the current Iraqi government's argument that the country regained its immunity when the 2003 U.S. invasion removed Hussein from power.

Writing the court's opinion in the case, Justice Antonin Scalia said, "Iraq's sovereign immunity was restored when the president exercised his authority to make inapplicable with respect to Iraq any provision of law that applies to countries that have supported terrorism."

In addition to Simon, plaintiffs who sued the Iraqi government included the children of two Americans who said they had been illegally detained and tortured by the Hussein regime: Kenneth Beaty, an oil rig supervisor from Mustang, Okla., and William Barloon, an aircraft maintenance supervisor from Jacksonville, Fla. In 2001, a U.S. District Court judge in Washington had ordered Iraq to pay $4.2 million to Beaty and $2.9 million to Barloon.

The cases, which the Supreme Court considered together, were Iraq v. Simon and Iraq v. Beaty.

The lawsuits against Iraq had sought more than $1 billion in damages for alleged torture and human rights abuses against the plaintiffs.

In their unanimous decision, the justices reversed a federal appeals court ruling. Scalia said an order issued in 2003 by President George W. Bush and a law passed by Congress the same year meant that Iraq's immunity "kicked back in" and that the cases should have been dismissed.

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