Pentagon Policy on Gays Is
Challenged
Associated Press, December
6, 2004
The Pentagon’s “don’t ask, don’t tell” policy
is being challenged by 12 gays who have been separated from the military
because of their homosexuality.
They planned to file a federal lawsuit today in Boston
that would cite last year’s landmark Supreme Court ruling that overturned
state laws making gay sex a crime as grounds for overturning the policy.
Other courts have upheld the 11-year-old policy, but C.
Dixon Osburn, executive director of Servicemembers Legal Defense Network,
which is advising the plaintiffs, said those decisions predated the 2003
Supreme Court ruling in Lawrence v. Texas.
“We think the gay ban can no longer survive
constitutionally,” he said.
Justin Peacock, a former Coast Guard member from
Knoxville, Tenn., who is among the plaintiffs in the planned U.S. District
Court lawsuit, was kicked out of the service after someone reported he was
seen holding hands with another man.
“I would love to rejoin, but even if I don’t get back
in, at least I could say I tried to get the policy changed,” Peacock said.
Lt. Col. Joe Richard, a Pentagon spokesman, said
officials have not seen the lawsuit and therefore could not comment on it.
“Don’t ask, don’t tell,” adopted during the
Clinton administration, allows gay men and lesbians to serve in the military
if they keep quiet about their sexual orientation and abstain from homosexual
activity. The Pentagon’s previous policy barred gays from military service.
The Supreme Court ruled last year that state laws making
gay sex a crime were unconstitutional. That overturned a 1986 Supreme Court
ruling that had upheld sodomy laws.
Two other lawsuits challenging the policy have been filed
since the high court’s reversal.
One was brought in California by the Log Cabin
Republicans, a political organization for gays. Osburn said that group could
face a difficult fight because it was not bringing its suit on behalf of a
specific injured party. He also noted that a federal appeals court in
California has upheld “don’t ask, don’t tell,” but the appellate court
in Boston has not ruled on the issue.
The other suit was filed in the U.S. Court of Federal
Claims, which generally deals with cases that involve money. That plaintiff,
who was separated from the Army, is seeking to recover his pension and is
challenging the ban in the process. Osburn said the court might rule narrowly
on the financial claim and not on the constitutionality of the gay members
policy.
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