As was widely expected among political analysts, the Servicemembers Legal Defence Network (SLDN) has asked the US Court of Appeals’ First Circuit to review its challenge to the ban on gay men and lesbians in the military.

SLDN filed a lawsuit against the 1993 statute in federal court in Boston in December 2004., but last month, US District Court Judge George O’Toole dismissed the case, ruling that Congress had a legitimate interest in segregating the armed forces.

The legal advocates postponed the decision to appeal for three weeks, where they made an announcement at an annual fundraising dinner.

“The men and women in SLDN’s lawsuit are among the best and brightest America has to offer,” executive director C. Dixon Osburn said of the 12 plaintiffs in Cook v Rumsfeld.

“They have diligently fought for the right to serve our country and defend our ideals. All of us at SLDN are enormously proud of their determination, and we work to honour them every day.”

The group has said they had high hopes for a lower-court victory in this case, one of the first challenges to “don’t ask, don’t tell” to be filed since the U.S. Supreme Court’s ruled in 2003’s Lawrence v Texas that private consensual adult intimacy is protected under a long line of privacy cases based on the due process clause of the U.S. Constitution.

The First Circuit has never handled a challenge to the military’s gay ban, although prior to the Lawrence decision, other federal appellate courts have ruled in favour of the policy, including the California-based Ninth Circuit and the New York-based Second Circuit.

Cook v Rumsfeld is one of two “don’t ask, don’t tell” challenges working their way through the federal courts. A second case, brought by the Log Cabin Republicans, is pending in a lower court in Southern California.

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