G.O.P. Gays Sue Military

Log Cabin wants Pentagon ban abolished; suit surprises other activists

The Log Cabin Republicans (LCR), the nation’s largest gay Republican group, has filed suit on behalf of its members in the U.S. military, seeking to overturn the Pentagon’s “Don’t Ask, Don’t Tell” policy that prevents gay people from serving openly in the armed forces.

Log Cabin Republicans v. United States of America was filed October 12 in the U.S. Federal District Court for the Central District of California by the firm of White and Case.

“A lawsuit should not be necessary when the experience of our allies in the war on terror, including Great Britain, Israel and Australia, all allow gays and lesbians to serve openly and honestly,” LCR executive director Patrick Guerriero said in a statement. “A lawsuit should not be necessary when our military has lost thousands of needed military personnel under this policy. However, under these circumstances, where we are a nation at war fighting a global war against terrorism, we can no longer sit by and wait for our elected officials to find the political courage to do the right thing,”

The Urban Institute, a non-partisan social policy research organization, released a study this week based on U.S. Census data that estimates 36,000 gays and lesbians are currently on active duty in the nation’s armed forces.

At an LCR meeting this past Monday in Washington, D.C., Marty Meekins, head attorney for the plaintiffs, stated a simple strategy.

“We intend to show that ‘Don’t Ask, Don’t Tell’ is constitutionally invalid,” he said.

The case is built around three recent U.S. Supreme Court decisions: Lawrence v. Texas, Romer v. Evans and Hamdi v. Rumsfeld.

According to Meekins, the Court’s 2003 Lawrence ruling is central to the LCR challenge. Lawrence invalidated the nation’s anti-gay sodomy laws and stated that the due process clause of the Constitution’s 14th Amendment guarantees gays and lesbians the right to privacy when engaged in intimate relationships.

In the past, the military has argued that the presence of gay soldiers in the ranks amidst others with deeply held anti-gay attitudes would degrade unit morale and subject gay soldiers to harassment and disapproval.

The 1996 Romer decision, which invalidated an anti-gay referendum passed by voters in Colorado, stated that general disapproval of gay people is not sufficient grounds for discriminatory laws to be passed against them. Meekins also cited the recent case decided by the Supreme Court of Hamdi v. Rumsfeld, which limited the Defense Department’s ability to override due process.

“The policy of ‘Don’t Ask, Don’t Tell’ harms gay people in the military by denying them rights enjoyed by their heterosexual colleagues,” Meekins said. He also argued that the prohibition against gays in the military is based on simple prejudice.

“There are plenty of ways to integrate gay people into the services,” he said. “All those claims that gays and lesbians subvert unit morale are purely anecdotal, and made by people who don’t like gay people. Our research indicates we can win this case.”

Former Pres. Bill Clinton had pledged during his 1992 election campaign that he would overturn the Pentagon’s prohibition on gays and lesbians. However, once elected, fierce congressional opposition and the threatened resignations of several top commanders forged the compromise that became “Don’t Ask, Don’t Tell, Don’t Pursue, Don’t Harass” which allowed gays and lesbians to remain in the military as long as they did not disclose their sexual orientation.

Lt. Col. Joe Richard, Department of Defense spokesman, said that per department policy he could not comment on pending litigation. He did assert that the DOD does not actively pursue or investigate a service member’s sexual orientation.

“There is no active effort to discover the sexual habits of any its members as long as it doesn’t infringe on unit cohesion,” he said. “However, it has been determined that ‘Don’t Ask, Don’t Tell’ is in the best interests of the U.S. armed forces. Until Congress and the president decide to change the policy we must enforce it.”

According to Steve Ralls, spokesman for the Service Members Legal Defense Network, a group that gives legal counsel to gays in the military, 10,000 soldiers have been discharged since the policy’s enactment. Moreover, said Ralls, the anonymity intended by the policy has not afforded any protection to gay military personnel.

“Gay service members can’t tell their doctors about their sexual orientation,” Ralls said. “Gay service members can’t complain about anti-gay harassment. The military monitors e-mail and letters sent from areas like Iraq. Any revelation in those can be used against a person. A gay person can’t speak to his or her colleagues in any open, honest way. The Pentagon says the open presence of gays and lesbians is detrimental to unit cohesion, but unit cohesion can never be achieved unless people are allowed to discuss their personal lives with colleagues.”

Ralls added that while the Defense Department might claim it does not actively seek out gay personnel, commanding officers are given broad discretion on what is or is not viable evidence when determining if the policy has been violated.

Ralls agreed with the Log Cabin lawsuit’s assertion that DADT is constitutionally invalid, especially following the Lawrence decision. “It imposes a set of regulations on gays and lesbians not applicable to heterosexuals,” he said. Nevertheless, Ralls said that he was “very surprised” by the Log Cabin suit and that his group hade been planning its own legal challenge. “For the past month we had been reaching out to the Log Cabin Republicans, HRC [Human Rights Campaign], and the Lambda Legal Defense Fund and others gathering information about our own plan to challenge ‘Don’t Ask, Don’t Tell’ and what kind of expertise we could bring to the suit.”

Ralls said that before the end of the year, SLDN will file a challenge against “Don’t Ask, Don’t Tell” that is “markedly different” from the one filed by LCR. One significant difference, Ralls said, will be that the SLDN case will have named plaintiffs, as opposed to the Log Cabin case which has no individual plaintiffs.

“The court may be likely to question harm when it can’t be concretely shown with plaintiffs who are willing to stand up and state that harm,” Ralls said about the Log Cabin lawsuit.

At the LCR meeting, Meekins said that individual stories are not important, because DADT doesn’t target individuals, but an entire class. By not disclosing names, he hopes to protect gay service members involved in the suit from retaliation or discharge. Plaintiffs in previous suits against “Don’t Ask, Don’t Tell” have been discharged.

The government’s response to the LCR suit is expected within 60 days.

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