Holmes

dissenting from denial of rehearing en banc.

I dissent from our failure to take en bane .the opinion of a divided panel that now stands as the opinion of our court.

It is clear to me that the “Don’t Ask/Don’t Tell” policy imposes silence-not inaction-upon gay and lesbian service personnel: The words “Don’t Ask” and “Don’t Tell” forbid speech, not conduct.

Moreover, this restriction on speech is content-based because it penalizes gay and lesbian members of our armed forces for revealing one basic aspect of their identities, any time or any place. See 10 U.S.C. § 654 (a)(9-10) (1997). And this restriction on speech violates the First Amendment because “[t]he point of the First Amendment is that majority preferences must be expressed in some fashion other than [by] silencing speech on the basis of its content.” R.A.V. v. St. Paul, 505 U.S. 377, 392 , 112 S.Ct. 2538 , 120 L.Ed.2d 305 (1992).

To make matters worse, the “Don’t Ask/ Don’t Tell” policy imposes a viewpoint restriction on speech. Unlike their gay and lesbian counterparts, heterosexual military personnel may talk about their sexuality without jeopardy. The Supreme Court has recognized that “[viewpoint discrimination is…

ORDER

Judges Reavley and Wiggins voted to deny plaintiff appellant’s and plaintiff appellees’s joint petition for rehearing and Judge Reinhardt voted to grant the petition for rehear *1050 ing. Judge Wiggins recommends rejection of the suggestion for rehearing en banc and Judge Reinhardt votes to accept the suggestion for rehearing en banc.

The full court was advised of the suggestion for rehearing en bane. An active judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R.App. P. 35.

The petition for rehearing is denied and the suggestion for rehearing en banc is rejected.