Appeals court tosses gays in military lawsuit

By the Associated Press | September 29, 2011 | 1:40 PM EDT

SAN FRANCISCO (AP) — A federal appeals court is refusing to decide the constitutionality of the military's now-repealed "don't ask, don't tell" policy banning openly gay service members.

The 9th U.S. Circuit Court of Appeals in San Francisco on Thursday tossed out a lawsuit that had challenged the military policy. In doing so, the appeals court also dismissed a trial judge's ruling that the policy was unconstitutional.

The gay rights group Log Cabin Republicans filed a lawsuit in 2004 challenging the policy. The group argued that a lower court ruling finding the policy unconstitutional and barring its implementation should remain in effect despite the repeal.

A unanimous three-judge panel disagreed, saying the case is moot because there is nothing left to challenge.