A federal appeals court yesterday upheld the Defense Department's right to discharge homosexuals from the armed services, the highest court so far to rule on the constitutionality of the Clinton administration's 1994 "don't ask, don't tell" policy.
The 9-4 ruling backed Congress' and President Clinton's constitutional authority to forge laws and write regulations governing the armed forces without judicial interference.
Judge J. Harvie Wilkinson III, who wrote the majority opinion, rejected arguments from former Navy Lt. Paul Thomasson that "don't ask, don't tell" violated his constitutional guarantee of free speech.
"To do so would not only overturn the efforts of the elected branches of government to resolve a significant question of national military policy. It would also violate much plain and settled Supreme Court precedent," Judge Wilkinson wrote.
"In the end, the best service courts can render is to return this debate to where it all began - to the halls of democratic governments, where the many Americans affected by decisions such as these can participate directly in their resolution."
More important to conservatives who back the exclusion, the opinion from the 4th Circuit Court of Appeals in Richmond has provided a precedent-setting case that will be cited in resisting future legal challenges from homosexual-rights groups.
Six of the nine judges wrote a separate opinion declaring that "don't ask, don't tell" - which allows homosexuals to serve as long as they keep their orientation private - does not match federal law. Conservatives interpret the law, enacted in 1993, as continuing the military's 50-year outright ban.
"It's an exciting opinion," said retired Army Lt. Col. Robert Maginnis, an analyst at the Family Research Council. The court allowed his group to present friend-of-the-court arguments in the case.
"We've been hoping to see some congressmen stand up and say the same thing for some time," Mr. Maginnis said.
The case of Mr. Thomasson, who declared his homosexuality in 1994 and was promptly discharged, likely will be appealed to the U.S. Supreme Court, whose ruling would at last settle a somewhat muddled picture.
Nine challenges to "don't ask, don't tell" are now pending before courts across the country. In cases before U. …