Cook v. Gates

528 F.3d 42 (1st Cir. 2008)



To survive a motion to dismiss, a complaint must allege a plausible entitlement to relief. 


Plaintiffs, 12 former members of the military who were separated from service under "Don't Ask, Don't Tell," 10 U.S.C.S. § 654, challenged the statute's constitutionality under the Fifth Amendment's due process and equal protection components and the First Amendment's Free Speech Clause. The statute regulated the service of homosexual persons in the United States military and provided for the separation of members of the military who engage, attempt to engage, intend to engage, or have a propensity to engage in a homosexual act. The U.S. District Court for the District of Massachusetts granted defendant Government's motion to dismiss the complaint. This appeal followed. The judgment of the district court was affirmed.


Did the district court err in granting the motion to dismiss?




The appellate court found that § 654 did not violate the service members' right to substantive due process on its face or as applied. Although the service members had a recognized liberty interest in adult consensual sexual intimacy in their own homes and private lives,§ 654 included other types of sexual activity that were expressly excluded from the recognized liberty interest at issue. Also, the circumstances surrounding § 654's passage showed that Congress found, after much deliberation, that the act was necessary to preserve the military's effectiveness as a fighting force, § 654(a)(15), and thus to national security. This was a weighty interest that was implicated in every as-applied challenge brought by a member of the armed forces against the act. The service members' equal protection claim failed because homosexuals were not a suspect class, and the legitimate interests that Government put forward were rationally related to the act. Finally, to the extent that § 654 was constitutionally applied to circumscribe sexual conduct, the First Amendment did not bar the Government from using the service members' declarations of homosexuality as evidence of a violation of the act.

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