Waging war on ‘Don’t Ask,
Don’t Tell’
Local vet part of suit to overturn military’s
anti-gay policy
Bay
Windows, December 9, 2004
By Ethan Jacobs
Perhaps there’s something in the water in Jamaica
Plain. The Boston neighborhood is home to three of the seven same-sex couples
who successfully sued for marriage rights in the Goodridge case. Now, another
JP resident, former Air Force physician Laura Galaburda, has joined 11 other
gay and lesbian people from around the country as a plaintiff in a lawsuit to
overturn the military’s “Don’t Ask, Don’t Tell” policy.
Servicemembers Legal Defense Network (SLDN) filed the
suit, Cook v. Rumsfeld, Dec. 6 in the U.S. District Court for the District of
Massachusetts; experts believe that the suit may be on stronger legal ground
than previous challenges to the policy.
Galaburda was discharged from the Air Force in August
2002 after nearly four years of service. During her enlistment she attended
Boston University School of Medicine on an Air Force scholarship. It was
during Galaburda’s active duty rotations at Andrews Air Force Base that the
pressure of remaining silent about her private life became too great. While
coworkers described routine events with their spouses and significant others,
Galaburda said she always had to hold back.
“It was always in that situation where people would
talk about how they spent the weekend with their wife or husband or
whoever,” she explained.
Her breaking point came during a conversation with one of
her patients at Andrews.
“I realized that I was asking the patient really
personal questions and asking her to be honest with me, and I felt like, what
a hypocrite,” said Galaburda. She felt the policy was compromising her
professional integrity.
Galaburda decided to come out to her commanding officer
in a letter. Within a few months the Air Force sent her packing, but her
honorable discharge came with an additional cost: The Air Force wanted to
recoup the money it had spent on Galabruda’s medical schooling.
“I certainly wasn’t surprised because they made a
financial investment in me,” said Galabrurda, who said monthly payments for
her med school costs are a major expense. “I don’t like paying it every
month.... I’d rather serve than pay.”
For all of the plaintiffs, the goal of the suit is not to
win a financial settlement but to win reinstatement to the military.
Although four previous legal challenges to “Don’t
Ask, Don’t Tell” have failed since the policy was instituted almost 11
years ago, SLDN believes that legal gains for GLBT people in the federal
courts provide them new ammunition to argue that the policy is
unconstitutional.
“Certainly the Supreme Court’s Lawrence decision
[striking down state sodomy laws] provided an important opportunity to
challenge the ban anew,” said SLDN spokesperson Steve Ralls. The Supreme
Court found that the constitutional right to privacy extends to private adult
consensual relationships, and SLDN will make the argument before the federal
court that that right extends to service members as well as civilians.
Lawrence also overruled the Supreme Court’s 1986 the Bowers decision, which
held that the government could criminalize sodomy.
Tobias Barrington Wolff, a University of California-Davis
law professor who has written extensively on “Don’t Ask, Don’t Tell,”
said that the Supreme Court decision striking down sodomy laws puts the SLDN
suit in better shape than previous challenges, since the military bases its
policy in part on regulations criminalizing anal and oral sex.
Already Lawrence has been used to undermine the
military’s sodomy law. In a recent U.S. Army Court of Appeals ruling three
military judges cited Lawrence in reversing the conviction of Kenneth Bullock,
a soldier charged with performing oral sex on a female civilian. Although the
case dealt with sodomy between a man and a woman, GLBT advocates believe it
sets a precedent recognizing the sexual privacy rights of all soldiers. The
Pentagon may still appeal that decision.
But Wolff said Lawrence sets an even more important
precedent that could impact the current suit.
“It really makes it very clear in a Supreme Court
opinion that gay people’s relationships need to be treated with the same
dignity of straight relationships,” said Wolff.
He said the federal court will be forced to address the
pervasive effects of the “Don’t Ask, Don’t Tell” policy, which he said
forces service members to be closeted both on the job and in their life out of
uniform.
“The federal courts are going to have to actually
engage with the fact that these soldiers are living under invasive
conditions,” Wolff explained.
Indeed, while Galaburda and some of the plaintiffs made
the decision to come out, other plaintiffs were forced out as a result of
issues in their personal life. Stacy Vasquez, an Army recruiter, was outed to
her supervisor after the supervisor’s wife allegedly saw her kissing another
woman at a club in Dallas.
Monica Hill, an Air Force physician, was forced out after
her partner of 14 years was diagnosed with a terminal cancer and Hill sought
permission to delay reporting to Andrews Air Force Base in order to care for
her. Her partner died a few months after Hill made the request. Hill revealed
her relationship as the reason for seeking the deferment, and the Air Force
began an investigation, alleging that Hill had fabricated the story to escape
active duty. Hill was forced to provide her partner’s death certificate as
evidence that her story was true, and she was discharged under “Don’t Ask,
Don’t Tell” for disclosing her relationship.
Other plaintiffs became the target of investigations into
their sexual orientation after being targeted for anti-gay harassment by their
peers. Jennifer McGinn, who decided to join the Army after 9/11, was taunted
by her drill sergeant, who SLDN alleges told her, “Men and women are made to
be together, Private. It says that in the Bible,” and “You can’t go to
heaven if you’re gay.”
Justin Peacock, a member of the Coast Guard who was
stationed in Washington, became the target of an investigation after he
reported anti-gay taunts made against him to his commanding officer.
One of the military’s justifications for “Don’t
Ask, Don’t Tell” is that it is essential for maintaining morale and unit
cohesion. The stories of McGinn and Peacock would seem to provide ammunition
for the military to substantiate that claim, but Aaron Belkin, the director of
the Center for the Study of Sexual Minorities in the Military at UC Santa
Barbara, said the government would be unwise to use a “blame the victim”
defense in court.
“I think it’s perfectly clear that occurrences of
anti-gay harassment aren’t evidence that gays and lesbians undermine unit
cohesion,” said Belkin. “It’s that people who commit anti-gay harassment
undermine unit cohesion.”
He said both police forces and foreign militaries have
demonstrated that when leadership sets strong policies against anti-gay
harassment, the number of anti-gay incidents drops off dramatically.
SLDN’s suit comes on the heels of another legal
challenge to “Don’t Ask, Don’t Tell” filed by Log Cabin Republicans in
October. Unlike SLDN, Log Cabin’s suit does not name any service members as
plaintiffs, but Log Cabin is suing on behalf of its members who are currently
serving in the armed forces. Marty Meekins, an attorney for White & Case,
LLP, which is representing Log Cabin, said the anonymity of the service
members is essential because coming out would lead to their discharge.
Meekins said he welcomes the SLDN suit. He said both
suits will need to overcome hurdles to convince the courts that in the case of
“Don’t Ask, Don’t Tell” the military does not deserve the latitude
traditionally given to them by the courts to set personnel policies.
“The military does not get a free ride when it wants to
endorse private prejudice against gay and lesbian Americans,” said Meekins.
Ralls said he believes SLDN ultimately has a stronger
case because “the SLDN suit has 12 men and women who are clearly named in
the suit who seek reinstatement.”
He said the decision to file in Boston’s court was made
possible by Galaburda living in JP. SLDN chose this circuit because it had not
ruled on “Don’t Ask, Don’t Tell” before Lawrence. According to Ralls,
Lawrence will help bolster SLDN’s argument that the restrictions of
“Don’t Ask, Don’t Tell” are not only invasive but unconstitutional.
“The courts have traditionally found that service
members do not necessarily check their constitutional rights at the door,”
said Ralls.
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