Military Gay Ban Under Attack

Lawsuits by gay Republicans, troops, invoke Lawrence in demand overturning “Don’t Ask”

On December 6, twelve gay and lesbian former service members sued to overturn the Pentagon’s “Don’t Ask, Don’t Tell” policy that prohibits gays and lesbians from openly serving in the armed forces.

Attorneys with the Service Members Legal Defense Network (SLDN), an advocacy group for gay and lesbian troops, assisted the plaintiffs in filing their suit in federal court in Massachusetts.

All twelve plaintiffs have been discharged from the military because officials identified them as gay.

“The plaintiffs in the lawsuit all served honorably in the United States Army, Navy, Air Force and Coast Guard. Together they have served more than sixty-five years in the armed forces. Three have served in direct support of operations in the Middle East. Among them they have earned more than five dozen awards, medals and commendations,” said C. Dixon Osburn, SLDN’s executive director, at a press conference announcing the lawsuit.

Sharra Greer, SLDN’s legal director, who, along with attorneys from the law firm of Wilmer, Cutler, Pickering, Hale and Dorr, is representing the plaintiffs, said that the Supreme Court decision in 2003 striking down sodomy laws, Lawrence v. Texas, renders unconstitutional the military’s gay ban.

“Lawrence affirmed the right of all Americans to choose their intimate relations and not suffer from those choices,” Greer said, adding that the landmark decision granted gay Americans the same constitutional right to privacy as heterosexual couples.

Lawrence nullified the nation’s anti-gay sodomy laws and stated that the “due process clause” of the Constitution’s 14th Amendment guaranteed gays and lesbians the right to privacy when engaged in intimate relationships, and that these relationships were not subject to government regulation or criminal penalization.

In the past, when enforcing the its prohibition against gay troops, the military has argued that the presence of law-breakers in the ranks, sodomy then being illegal in various states, along with the fact that most people disapprove of homosexuals, would degrade unit morale and subject gay soldiers to harassment and disapproval.

Greer also added that current science research has debunked Don’t Ask, Don’t Tell’s validity. “All the data shows that there is no detriment to the military or unit cohesion from gays and lesbians in the ranks,” she said. Greer also cited the service of openly gay British, Australian and Israeli soldiers as proof that openly gay soldiers do not erode combat readiness.

“We are also losing some of the best and brightest in our military to this ban,” Greer added.

SLDN now joins two other pending suits that draw on the Lawrence decision to overturn the military’s gay ban. The first was filed in July 2003 by Lt. Col. Stephen Loomis who was discharged from the Army for being gay eight days short of his twenty-year service anniversary, the point at which service members usually become eligible for full pensions. That case is now before the U.S. Federal Court of Claims where Loomis has sued for his pension, as well as an overturn of “Don’t Ask, Don’t Tell.”

The second lawsuit was filed this October by the Log Cabin Republicans, a national gay Republican group, on behalf of its members now serving in the military. However, the Log Cabin suit, now before a federal district court in California, does not list individual plaintiffs, but rather intends to demonstrate that the gay ban denies current gay and lesbian service members the constitutional rights guaranteed to heterosexual service members.

According to Marty Meekins, a lawyer at White and Case, and lead attorney for the Log Cabin case, the government has indicated that next week it will indicate its intention to fight the lawsuit, at which point both sides will prepare for trial.

A recent study by the Urban Institute estimated that there are nearly 36,000 active-duty gays and lesbians in the U.S. military.

Former President Bill Clinton had pledged during his 1992 election campaign that he would overturn the military’s prohibition on gays and lesbians. However, once elected, fierce opposition in Congress and the threatened resignation of several top commanders resulted in the “Don’t Ask, Don’t Tell” compromise which allows gays and lesbians to remain in the military as long as they did not disclose their sexual orientation.

Department of Defense spokesman, Lt. Col. Joe Richard, said that Pentagon policy was not to comment on pending litigation. Richard did say that the Defense Department 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 Aaron Belkin, director of the Center for the Study of Sexual Minorities in the Military at the University of California at Santa Barbara, the military’s gay ban does not function smoothly, and in fact puts an enormous burden on gay service members that their heterosexual counterparts avoid. Belkin said that the “Don’t Ask, Don’t Tell” policy interprets various forms of conduct as “telling” about one’s sexuality, so while there might not be witch hunts for gay military personnel, the ways in which they can be outed and discharged are many and varied, and not nearly as simple as stating, “I am gay.”

“Under ‘Don’t Ask, Don’t Tell,’ homosexual conduct is equated with the conduct of a homosexual. Two people of the same sex taking a walk together can be evidence,” Belkin said. Any proof that indicates someone is gay is enough to get them discharged even if they haven’t come out to their colleagues or commanders. In short, a soldier might never know how or when he is violating the policy.

Belkin also said that because military judges have a lot of freedom to interpret what is actually evident of of homosexuality, rumors rise to the level of proof. Moreover, victims of anti-gay harassment in the military are threatened to be outed by their perpetrators if victims report the abuse. “Any type of outcry can bring suspicion and investigation,” Belkin added. He cited a recent case where a female soldier was accused of being a lesbian and later discharged because she attended a pro-golf match with another woman.

Among the three suits, the Log Cabin case is considered a difficult one to win because it has no specific injured party.

“It has been clear for some time that ‘Don’t Ask, Don’t Tell’ raises many serious constitutional problems. So while the Log Cabin’s constitutional challenges are correct, it might be harder to make a compelling case without individual stories because it will be hard to focus on actual violations,” said Tobias Barrington Wolff, professor of constitutional law at University of California at Davis.

As for Don’t Ask, Don’t Tell, Tobias said that it is an extraordinary intrusion, if not violation, of gay service members constitutional right to privacy. “It limits their freedom of speech not only in the military structure, but also when talking with friends, relatives or their elected representatives,” said Wolff.

Wolff said that the time is definitely right for a successful challenge to the ban. “The Supreme Court has made it clear in Lawrence that gays and lesbians are entitled to the same respect before the law as straight people and was meant to alter the way courts analyzed future claims by gay litigants in all suits. Lawrence was a strong statement that the unequal treatment usually given to gay people has to stop,” Wolff said.

Where the lawsuits are filed will likely play a critical role in their outcome. The Ninth Circuit, in California, where the Log Cabin suit was filed, has extensively considered and upheld the military’s gay policy. “It’s harder to make a court go back on its past rulings,” Wolff said. However, the SLDN challenge, filed in Massachusetts, may yield more fruition. “Because the First Circuit of Boston has not yet considered this issue, the district court can look at it anew,” Wolff said.

The government has at least sixty days to respond to the SLDN suit.

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