Lawrence
Decision Launches Military ‘Gay’ Ban Challenges
Concerned
Women for America, July 16, 2003
1015
Fifteenth St. N.W., Suite 1100, Washington, D.C. 20005
Phone: (202) 488-7000, Fax: (202) 488-0806
Email: mail@cwfa.org
http://www.cultureandfamily.org/articledisplay.asp?id=4275&department=CFI&categoryid=cfreport
Homosexual
activists are challenging the military’s ban on open homosexuality in light
of the Supreme Court’s ruling in Lawrence
v. Texas.
On
July 7, former U.S. Army Lt. Col. Loren Stephen Loomis filed a federal lawsuit
challenging the constitutionality of the ban in light of the high court’s
ruling, as well as seeking back-pay, allowances and reinstatement of
retirement benefits.
Loomis
was administratively discharged from the Army on July 14, 1997, eight days
before he reached retirement eligibility, disqualifying him from retirement
benefits estimated at more than $1 million.
Servicemembers
Legal Defense Network (SLDN), a homosexual activist group that provides legal
representation to open homosexuals in the military, is representing Loomis in
this case as it did during his discharge. (SLDN routinely charges that efforts
to uphold the military’s ban on open homosexuality are “witch hunts.”)
“Lawrence
has a direct impact on the federal sodomy statute and the military’s gay
ban,” said SLDN director C. Dixon Osburn in a press release. “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.”
In
Lawrence v. Texas, the high court overturned the Texas sodomy law,
saying it violated the right to privacy. That is a right, however, that is
nonexistent in military law. The nation’s armed forces operate under their
own criminal laws defined as the Uniformed Code of Military Justice (UCMJ). A
section of that law excluding homosexuals from military service was passed by
Congress and signed into law by President Clinton in 1993.
But
military experts say the real impact of Lawrence will be its invitation
to judicial activism, not in its legal implications on the UCMJ, USC 654.
“I
don’t believe the sodomy case is legally binding on 654 because that law
[Texas’ sodomy law] has no basis in the UCMJ Article 125, Sodomy,” Lt.
Col. Robert L. Maginnis, USA ret., told Culture & Family Report. “It’s
based on Article 1, Section 8, of the Constitution, which says the Congress
sets the personnel rules for the military.”
“Personnel
policies do not have to be based on matters of law but on issues of national
security and the preservation of readiness,” he added.
This
first lawsuit in the wake of the high court’s Lawrence decision is
the first challenge to the 1993 addition to the UCMJ since the late 1990s.
Eight court challenges were launched against that law by homosexual rights
groups. Each was turned away by various federal appeals courts, which all gave
deference to the military.
In
1998, the U.S. Supreme Court declined to hear a challenge to the military’s
ban on homosexuality, until now, ending legal efforts to overturn the law.
That
law states, “The potential for involvement of the armed forces in actual
combat routinely make[s] it necessary for members of the armed forces
involuntarily to accept living conditions and working conditions that are
often Spartan, primitive and characterized by forced intimacy with little or
no privacy.”
Given
those conditions, the law says that homosexual activity creates “an
unacceptable risk to the armed forces’ high standards of morale, good order
and discipline, and unit cohesion that are the essence of military
capability.”
This
first challenge to the military’s homosexual ban has other problems that may
hamper its impact on military law. According to the complaint filed by Lt.
Col. Loomis, his discharge sprang from Loomis’ homosexual involvement in
March 1995 with Michael A. Burdette, a young enlisted man also stationed at
Fort Hood, Texas.
Loomis
was discharged not only on the grounds of homosexual conduct but also conduct
unbecoming an officer, stemming from his sexual involvement with a junior
enlisted.
Given
the facts of the Loomis challenge, and past rulings on the military’s ban on
homosexual activity, proponents of the ban are encouraged about the outcome.
However,
they say the Clinton-era “Don’t Ask, Don’t Tell” policy is problematic
and in conflict with the law passed by Congress. Advocates are urging the Bush
administration to lift the “Don’t Ask, Don’t Tell” regulations and
uphold the 1993 strict homosexual-exclusion law.
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