Six gay or lesbian members of the armed forces- Lieutenant Colonel Jane Able, Petty Officer Robert Heigl, First Lieutenant Kenneth Osborn, Sergeant Steven Spencer, Lieutenant Richard Von Wohld, and Seaman Werner Zehr- had filed suit in the Eastern District of New York challenging the constitutionality of the "Don't ask, don't tell" policy.

The case was assigned to U.S. District Court Judge Eugene Nickerson.

They also vacated and remanded to the district court the First and Fifth Amendment rulings, on the basis that the "new policy strikes a reasonable balance between the competing interests and because the policy is important to the military's accomplishment of its objectives, we find that it restrains speech no more than is reasonably necessary" and "the ...assumption ...that the ban on homosexual acts found in § 654(b)(1) is valid under the Constitution.

[6] On appeal from that decision, the Second Circuit reversed, on the basis that "[g]iven the strong presumption of validity [the Court] give[s] to classifications under rational basis review and the special respect accorded to Congress's decisions regarding military matters, [they] will not substitute [their] judgment for that of Congress" and "that Congress has proffered adequate justifications for the Act".

As the plaintiff-appellees asserted at oral argument "that they were not seeking any more onerous standard than the rational basis test", the Court applied rational basis review without deciding whether that was the appropriate standard for review.