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Before Howard, Circuit Judge, Campbell, Senior Circuit Judge and Saris *fn2, District 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 military brought constitutional challenges, claiming the Act violated the due process and equal protection components of the Fifth Amendment and the free speech clause of the First Amendment. These challenges were rejected in other circuits. See Able v. United States, 155 F.3d 628 (2d Cir. 1998); Holmes v. Cal. Army Nat’l Guard, 124 F.3d 1126 (9th Cir. 1997); Richenberg v. Perry, 97 F.3d 256 (8th Cir. 1996); Able v. United States, 88 F.3d 1280 (2d Cir. 1996); Thomasson v. Perry, 80 F.3d 915 (4th Cir. 1996) (en banc).

In 2003, the United States Supreme Court invalidated, on substantive due process grounds, two convictions under a Texas law criminalizing sodomy between consenting homosexual adults. Lawrence v. Texas, 539 U.S. 558 (2003). Lawrence has reinvigorated the debate over the Act’s constitutionality. E.g., Pamela Glazner, Constitutional Doctrine Meets Reality: Don’t Ask, Don’t Tell in Light of Lawrence v. Texas, 46 Santa Clara L. Rev. 635 (2006); Note, The Military’s Ban on Consensual Sodomy in a Post-Lawrence World, 21 Wash. U. J. L. & Pol’y 379 (2006); Jeffrey S. Dietz, Getting Beyond Sodomy: Lawrence and Don’t Ask, Don’t Tell, 2 Stan. J. C. R. & C. L. 63 (2005). This case is the second post-Lawrence challenge to the Act to be decided by a federal court of appeals.*fn3

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