Viet Vet Files ‘Don’t Ask Don’t Tell’ Constitutional Challenge Based
on Sodomy Ruling
By Doreen Brandt, 365Gay.com Newscenter, Washington
Bureau
365Gay.com,
July 8, 2003
Washington, D.C.—Steve Loomis, a
decorated Vietnam combat veteran and recipient of the Purple Heart, has filed
suit with the U.S. Court of Federal Claims challenging the constitutionality
of “Don’t Ask, Don’t Tell” and the federal sodomy statute, among other
claims.
His challenge is based on the recent U.S. Supreme Court
opinion in Lawrence v. Texas which declared that the Texas sodomy statute
violated the United State’s Constitution’s guarantee of a right to
privacy. Loomis is seeking to reverse his 1997 discharge from the United
States Army.
“Lawrence has a direct impact on the federal sodomy
statute and the military’s gay ban,” said C. Dixon Osburn, executive
director of the Servicemembers Legal Defense Network, which represented Loomis
during his initial discharge proceedings.
“Under ‘Don’t Ask, Don’t Tell,’ the federal
government regularly intrudes in the most personal aspects of our lives. That
is wrong and it is time for the government to change,” Osburn said.
According to Pentagon statistics, the Pentagon has
discharged more than 9,000 service members for being gay since “Don’t Ask,
Don’t Tell” was first implemented ten years ago. Congress codified
“Don’t Ask, Don’t Tell” into law in 1993 in response to President
Clinton’s efforts to end discrimination against lesbian, gay and bisexual
service members. The law requires lesbian, gay and bisexual service members to
keep their sexual orientation an absolute secret or face the risk of
discharge.
The Army discharged Loomis, a former engineer war plans
officer, for being gay eight days prior to his twenty year retirement date. As
a result, he forfeited his retirement pension worth an estimated one million
dollars. Each of the Army officers sitting on the discharge board that
determined Loomis’ fate called homosexuality “a sickness” or said they
had “no tolerance” for homosexuality. Efforts to remove those officers
from the discharge board for bias failed.
The Army based its discharge on a videotape seized during
an arson investigation. An arsonist set fire to Loomis’ home in 1996.
Civilian authorities investigating the arson found the videotape, which
depicts Loomis in private adult consensual sexual conduct, and handed it over
to Army officials. The Army used the videotape as the basis for discharge,
ending the decorated veteran’s distinguished career. The Army provided
Loomis no assistance in responding to the tragedy of losing his home or
possessions.
Loomis appealed his discharge through the military’s
administrative process, petitioning the Army Board for the Correction of
Military Records. The Board declined to reinstate Loomis to the Army or award
him his retirement benefits.
Loomis’ suit challenges the constitutionality of both
the federal sodomy statute and “Don’t Ask, Don’t Tell” based on the
recent United State Supreme Court opinion in Lawrence v. Texas that struck
down Texas’ sodomy statute. Justice Anthony Kennedy, in writing the
court’s majority opinion, stated that the “right to liberty under the Due
Process Clause gives…the full right to engage in private conduct without
government intervention.”
The United State Supreme Court has not ruled on the
constitutionality of the military’s sodomy statute or “Don’t Ask,
Don’t Tell.” Four appellate courts have upheld “Don’t Ask, Don’t
Tell” to date.
“The legal landscape has changed since the earlier
courts’ rulings,” said Osburn. “Those decisions were based in part on a
view that the state could regulate private consensual sexual conduct under
Bowers v. Hardwick ,” an earlier Supreme Court opinion upholding Georgia’s
sodomy statute that the current court has now overruled.
Loomis received a Purple Heart, two Bronze Stars, and an
Air Medal for his service in Vietnam. He received his fourth Meritorious
Service Medal, recognition of his promotion to Colonel and a certificate of
appreciation from his commanding general on the evening his home was destroyed
by arson.
“All too often, the Army denies those who have
sacrificed in its service the basic protection of law,” said Loomis. “If
the military will pursue a decorated officer and combat veteran such as
myself, one can only imagine the hurdles faced by young service men and women
who find themselves in the Catch-22 of ‘Don’t Ask, Don’t Tell.’”
Loomis is being represented by David Sheldon, a
Washington, D.C. based attorney, and noted expert on military law. In addition
to Loomis’ constitutional challenges to the military’s sodomy statute and
gay ban, Loomis is alleging wrongful search and seizure in violation of his
Fourth Amendment rights, as well as several claims that the Board for
Corrections acted in an arbitrary and capricious fashion. Monday, a lesbian
couple in Utah filed suit challenging the state’s anti-gay adoption law
using the Supreme Court decision.
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