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Hastings Constitutional Law Quarterly

Abstract

On the brink of the new millennium, the European Court of Human Rights, with jurisdiction over 40 countries, representing about 800 million people, declared that Britain must allow gays, lesbians, and bisexuals to serve openly in its military. In the wake of this decision, the United States, however, has remained steadfast and undeterred in implementing the "Don't Ask, Don't Tell" Policy, the military ban on gays. The United States Supreme Court has not spoken on the Policy, and no federal circuit court has found it unconstitutional. In particular, equal protection challenges have failed as a result of the circuit courts' use of the military deference doctrine and rational basis review. This Note argues that the Policy violates the Equal Protection Clause because the military deference doctrine does apply to the Policy under Goldman v. Weinberger and the Policy is based on irrational prejudice under Romer v. Evans.

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