December 10, 2004

Dont ask is challenged under sodomy law ruling

by Eric Resnick

Boston--The U.S. military�s �don�t ask, don�t tell� policy against gays and lesbians serving openly has been challenged in a Boston federal court by twelve former service members discharged under the policy.

The suit, filed December 6 in Massachusetts District Court by the Servicemembers Legal Defense Network, challenges the controversial policy under last year�s U.S. Supreme Court decision declaring sodomy laws unconstitutional.

The suit is one of three currently challenging the constitutionality of �don�t ask, don�t tell� under the Lawrence v. Texas ruling, and is believed to be the most likely to succeed.

According to the complaint, the military �punishes gay, lesbian and bisexual servicemembers such as plaintiffs for their sexual orientation and for their private, constitutionally protected conduct.�

The Lawrence decision declared sexual activity between consenting adults of the same sex �private, constitutionally protected conduct.�

Prior to that time, court challenges to the policy failed because the government was able to use the 1986 U.S. Supreme Court decision Bowers v. Hardwick, which upheld sodomy laws.

Lawrence overruled Bowers, stating, �Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent.�

�Don�t ask, don�t tell� was passed by Congress in 1993 as the result of a compromise with the newly-elected Clinton administration, which had proposed ending the military�s ban on gays altogether.

The twelve plaintiffs are Thomas Cook of Amarillo, Texas, Megan Dresch of Scottsdale, Arizona, Jennifer McGinn of Bremerton, Washington, James E. Pietrangelo, II, and Stacy Vasquez of Houston, Texas, who were discharged from the Army; Dr. Laura Galaburda of Jamaica Plain, Mass., Jack Glover and David Hall, both of Anchorage, Alaska, and Dr. Monica Hill of Fayettville, North Carolina, who were discharged from the Air Force; Jenny Lynn Kopfstein of San Diego, California, and Derek Sparks of Seattle Washington, who were discharged from the Navy; and Justin Peacock of Knoxville, Tennessee, who was discharged from the Coast Guard.

The case is captioned Cook v. Rumsfeld, and names as defendants Decretary of Defense Donald Rumsfeld and Secretary of Homeland Security Tom Ridge in their official capacities.

All 12 plaintiffs want to return to military service, and say they will once the law is declared unconstitutional.

The suit cites the militaries of Israel, the United Kingdom, Canada and Australia as examples of systems where lesbians and gays serve openly.

Two of those countries, the United Kingdom and Australia, have openly gay troops serving alongside U.S. forces in Iraq with no breakdown of morale or unit cohesion, as the Pentagon has claimed as justification for the policy.

The suit also points out that the Pentagon undermines the credibility of the �don�t ask, don�t tell� policy itself when it defers discharges of gays and lesbians until they are no longer needed during times of conflict.

�This selective enforcement or relaxation of the policy discharging gay, lesbian, and bisexual service members at times when unit cohesion is most critical refutes the contention that such discharges are necessary to serve unit cohesion,� say the plaintiffs.

The twelve served between 1987 and 2004, all having distinguished records as commanders, doctors, judge advocates, officers and pilots. All earned medals, and served in conflicts including Kuwait and Iraq.

Two of the Air Force members, Glover and Hall, were dating each other. The military violated its own �don�t ask� policy in the process of discharging most of the others.

The suit also claims the military violated the plaintiffs� Fifth Amendment right to equal protection based on their sexual orientation, a right first advanced in Justice Sandra Day O�Connor�s separate concurring opinion in Lawrence.

SLDN executive director C. Dixon Osburn said the ban can no longer survive constitutionally.

�You do not ban an entire class of people just to accomodate prejudice,� said Osburn.

The suit is the first brought by SLDN since Lawrence.

The government has 60 days to respond to SLDN�s complaint.

A separate suit challenging �don�t ask, don�t tell� under Lawrence was filed by the Log Cabin Republicans on October 12.

But according to Osburn, who is also an attorney, the Log Cabin suit may not survive a challenge to the group�s standing to bring it because it was filed on behalf of the group, not a discharged servicemember.

Log Cabin Republicans v. United States of America was filed in California, which is part of the Ninth Circuit, which has already ruled the law constitutional. SLDN�s suit was filed in the Boston District of the First Circuit, which has never heard a �don�t ask, don�t tell� case.

A third suit, brought by discharged Army Lt. Col. Steve Loomis of Oklahoma, was filed in the Court of Claims in 2003, just before the Lawrence decision was handed down.

Loomis� case, which is currently on appeal, is primarily concerned with the money Loomis says he was denied when he was discharged, and only challenges the constitutionality of the law as a small part.

The Army Court of Criminal Appeals on November 30 overturned the sodomy conviction of a male heterosexual soldier for oral sex with a female. The court said, for the first time, that servicemembers have a right to sexual privacy. The decision applies to both heterosexual and homosexual conduct.