Some lawyers have favored a narrow challenge, relying on the First Amendment, the Times said. Others, including the ACLU, have chosen to fight the policy more broadly as an unconstitutional discrimination against gays and lesbians. The Times analysis was contained in its report on the Supreme Court's decision not to hear the first challenge to the controversial military policy written by Supreme Court correspondent David Savage. The decision by the Court, the Times said, will not be the final word from the Supreme Court, and some gay rights leaders told the paper that they were relieved that the Justices refused to hear the first appeal.
All gay behavior is grounds for discharge.
In contrast, the approach taken by the lawyers in the case rejected by the Supreme Court, the Times said, relied on the belief that federal courts might knock down a policy that punished persons for what they said rath than what they did. Those lawyers, the paper added, are willing to concede that the military could remove persons who engage in homosexual acts. That changed, however, when the Court threw out a Colorado anti-gay rights initiative that would have disallowed legal protection for lesbians and gay men. While that decision did not spell out a clear rule the future, the Times said the outcome has given gay rights advocates new hope that eventually the high court will outlaw official policies that discriminate among person based on their sexual orientation.