Nos. 06-2313, 06-2381.

528 F.3d 42 (2008)

Thomas COOK; Megan Dresch; Laura Galaburda; Jack Glover; David Hall; Monica Hill; Jenny Lynn Kopfstein; Jennifer McGinn; Justin Peacock; Derek Sparks; Stacy Vasquez, Plaintiffs, Appellants, James E. Pietrangelo, II, Plaintiff, v. Robert M. GATES, Secretary of Defense; Michael Chertoff, Secretary of Homeland Security; United States of America, Defendants, Appellees.

United States Court of Appeals, First Circuit.

Decided June 9, 2008.

Attorney(s) appearing for the Case

Stuart F. Delery, with whom Benjamin C. Mizer, Julian Davis Mortenson, Wilmer Cutler Pickering Hale and Dorr LLP, Sharra E. Greer, Kathi S. Westcott, Sharon E. Debbage Alexander, Aaron D. Tax, and Servicemembers Legal Defense Network were on brief, for appellants.

James E. Pietrangelo, II, pro se.

Gregory G. Katsas, Principal Deputy Associate Attorney General with whom Michael J. Sullivan, United States Attorney, Peter D. Keisler, Assistant Attorney General, Jonathan F. Cohn, Deputy Assistant Attorney General, Anthony J. Steinmeyer, Assistant Director Appellate Staff, Civil Division and Mark T. Quinlivan, Assistant United States Attorney were on brief, for appellees.

Tobias Barrington Wolff, on brief for amici curiae Akhil Reed Amar, C. Edwin Baker, Erwin Chemerinsky, Owen M. Fiss, Pamela S. Karlan, Andrew Koppelman, Kathleen M. Sullivan, and Laurence H. Tribe, on brief for amici curiae Constitutional Law Professors.

Virginia A. Seitz, Eamon P. Joyce, and Sidley Austin LLP, on brief for amicus curiae Retired Military Officers, Leslie M. Hill, Robert Weiner, Christopher Anderson, and Arnold & Porter LLP, on brief for amici curiae Law Professors.

Rose A. Saxe, Matthew A. Coles, Kenneth Y. Choe, and Sarah Wunsch, on brief for amicus curiae American Civil Liberties Union and American Civil Liberties Union of Massachusetts.

Patricia M. Logue and Bonnie Scott Jones, on brief for amicus curiae Lambda Legal Defense and Education Fund, Inc.

John E. Bies, D. Jean Veta, and Covington & Burling, on brief for amicus curiae of American Sociological Association and Social Science Professors.

Steven W. Fitschen and Barry C. Hodge, on brief for amicus curiae of the National Legal Foundation.

Gary D. Buseck, Mary L. Bonauto, Gay & Lesbian Advocates & Defenders, William M. Hohengarten, Luke C. Platzer, and Jenner & Block LLP, on brief for amicus curiae Gay & Lesbian Advocates & Defenders.

Before HOWARD, Circuit Judge, CAMPBELL, Senior Circuit Judge and SARIS, District Judge.

HOWARD, Circuit Judge.

In 1993, Congress enacted a statute regulating the service of homosexual persons in the United States military. 10 U.S.C. § 654 (2007)(the Act). The Act, known as "Don't Ask, Don't Tell," provides 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. Id. § 654(b). In the aftermath of this congressional action, several members of the...

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