Expelled Gay Soldiers Sue
Armed Services
The
Advocate, December 7, 2004
Twelve gays expelled from the military because of their
sexual orientation filed a legal challenge Monday to the Pentagon’s
11-year-old “don’t ask, don’t tell” policy. The lawsuit, filed in U.S.
district court in Boston, cited last year’s landmark U.S. Supreme Court
ruling overturning state laws that criminalized gay sex. Other courts have
upheld the policy, approved by Congress and put in place by the Clinton
administration. However, those decisions came before the 2003 Supreme Court
ruling, said C. Dixon Osburn, executive director of Servicemembers Legal
Defense Network, which is advising the plaintiffs. “We think the gay ban can
no longer survive constitutionally,” he said. “You do not ban an entire
class of people just to accommodate prejudice.”
Lt. j.g. Jen Kopfstein of San Diego was dismissed from
the Navy after she told her commanding officer she was a lesbian. Kopfstein, a
plaintiff in the case, said Monday that hiding her identity felt dishonest.
“Today, I’m here to stand up for what is right,” she said. “‘Don’t
ask, don’t tell’ is a horrible policy.”
Another plaintiff, Justin Peacock, a former Coast Guard
boatswain’s mate from Knoxville, Tenn., was discharged 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” allows gays and lesbians to serve in the
military as long as they don’t reveal their sexual orientation and abstain
from homosexual activity. Before it was established, the Pentagon barred gays
from military service altogether.
The Supreme Court ruled last year that state laws making
gay sex a crime were unconstitutional. 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 gay political group. 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 a federal appeals court
in California has upheld “don’t ask, don’t tell,” but the appellate
court for 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.
The gay advocacy group Lambda Legal, which argued last
year’s sodomy case, released a statement saying the Supreme Court decision
should help strike down “don’t ask, don’t tell.” “It’s only a
matter of time before the military’s policy on lesbian and gay
servicemembers is repealed or struck down in court,” said Lambda attorney
Patricia Logue, one of the lead attorneys on the Lawrence v. Texas sodomy
case. “The U.S. Supreme Court ruling last year that overturned sodomy laws
clearly cuts down the pillars supporting the military policy. In Lawrence v.
Texas, the U.S. Supreme Court strengthened the right to form intimate
relationships without facing a penalty, and the military policy penalizes gay
people who have those relationships or are assumed to. The Lawrence ruling
also made it clear that gay people cannot be singled out for punishment for
relationships others freely enjoy, which is exactly what the military does
right now. We’re optimistic that ‘don’t ask, don’t tell’ will soon
be replaced with ‘don’t discriminate,’ which is the law of the land
after last year’s U.S. Supreme Court ruling.”
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