By Reid Wilson - 06/08/09 01:38 PM EDT
The Supreme Court on Monday rejected a challenge from a dozen U.S. military veterans seeking to overturn the 15-year-old "Don't ask, don't tell" policy.
The court announced it would not grant certiorari for James Pietrangelo and 11 other petitioners, whose lawsuit was thrown out by a U.S. District Court because the statute was not misapplied to them.
"Don't ask, don't tell," instituted by the Clinton administration, prevents openly gay people from serving in the armed forces. Pietrangelo was dismissed by the Army for being gay, and his name headlined the suit, Pietrangelo v. Gates.
Though President Obama has said he would like to reverse the policy eventually, the Justice Department filed a motion supporting upholding the policy.
Justice said it supported the appeals court finding that the right of free speech is abridged only in a "content-neutral, non-speech basis" to serve "the important governmental interest of maintaining an effective national military."
The department cited a historic deference courts have shown to the executive and legislative branches in handling the military and said the lawsuit the court was reviewing was "an unsuitable vehicle" for addressing the policy.
Pietrangelo had appealed based on what his lawyers called violations of his First and Fifth Amendment rights.
Gay-rights groups have cast the decision not as a setback, but as an opportunity to bring the matter back before Congress. Obama has pointed out that any reversal of the policy would have to come from Congress.
"It's not bad news because it puts this ball back into focusing fully on Congress and the White House for repeal. We think right now, the best way to go is the political route in the legislative and executive branches," said Kevin Nix, a spokesman for the Servicemembers Legal Defense Network, which is working to overturn the 1993 law.
"The focus is still on President Obama and military leaders and Congress," he said.
Other challenges to the law remain pending in various appeals courts. The 9th Circuit Court of Appeals last year required the Air Force to prove that dismissing a flight nurse advanced the military's goal of readiness and cohesion, a case that is still alive.
The 5-4 decision, written by Justice Anthony Kennedy and joined by the court's four liberal members, held that, while the case was extreme, the facts required the West Virginia judge to recuse himself from the matter.
The court also ruled the current government of Iraq cannot be held responsible in U.S. courts for crimes perpetrated by Saddam Hussein's regime. U.S. law allows lawsuits against countries listed as state sponsors of terrorism, but the court said the 2003 invasion by U.S. forces restored the country's sovereign immunity, and therefore its immunity from U.S.-based lawsuit.
The unanimous decision overturned a U.S. District Court judge who awarded millions of dollars to the families of two men who had been tortured by Hussein's regime.
Finally, the court denied certiorari in the case of Dennis Kozlowski, the former CEO of Tyco International who went to jail over fraud and larceny convictions for his role in spending more than $400 million of the company's money for personal use.