On appeal, the Second Circuit vacated the 1995 ruling. They ruled that plaintiffs had standing to challenge the Section 654 (b) (1) and (3), as well as their expressive association challenge. 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."Able I, 88 F.3d 1280 (2d Cir. 1996).
