Lawsuit
Challenges Military’s Gay Policy
Atlanta
Journal-Constitution, July 20, 2003
72 Marietta Street NW, Atlanta, GA 30303
Fax: 404-526-5746
Email: journal@ajc.com
By
George Edmonson, The Atlanta Journal-Constitution
WASHINGTON—To
the recognition he received in almost 20 years of military service—Bronze
Stars, Purple Heart, promotions—former Lt. Col. Steve Loomis would like to
add another distinction: helping to end the “don’t ask, don’t tell”
policy on gays.
Loomis
was dismissed from the Army in 1997, after an arson investigation of a fire at
his home turned up evidence that he was gay. Now his lawsuit is the latest
assault on the nearly 10-year-old “don’t ask” policy, and it is thought
to be the first suit filed following the recent U.S. Supreme Court ruling that
a Texas sodomy law “furthers no legitimate state interest which can justify
its intrusion into the personal and private life of the individual.”
Loomis
said he delayed filing his federal suit, seeking retirement benefits, to
incorporate the ruling on the Texas law.
He would
like the courts to declare the military’s policy unfair. But his lawyer said
it’s more likely the court will rule in his case on other grounds, probably
the question of whether the Army properly followed its procedures.
Loomis’
discharge came a few days shy of his 20th anniversary in the Army—a mark
that would have made him eligible for retirement benefits.
“I’ll
be honest with you—yes, I want to see my own personal retirement reinstated.
It’s valuable to me,” said Loomis, who now works in land development in
Albuquerque, N.M.
“But
by the same token, I think there are a couple of other things that I would
like to see out of this. One would be that the Army recognize that my service
was, in fact, good and beneficial to the military.
“I
would think I would also like to see the courts acknowledge that ‘don’t
ask, don’t tell, don’t pursue’ is unfair, and it just isn’t
working.”
A
Pentagon spokesman, in an e-mail response to a question, said the Defense
Department cannot comment because it has not received the complaint. It has
until early September to file a response.
Ten
years ago this month, President Clinton announced the new policy, which sought
to end military officials’ efforts to expose and expel gays in the ranks. It
was signed into law that November.
Steve
Ralls, director of communications for the Servicemembers Legal Defense
Network, which assists those affected by “don’t ask, don’t tell,” said
Loomis’ case is only the beginning of a new round of assaults on the policy
and prohibition of sodomy for anyone in the service.
“We
anticipate that . . . there are going to be numerous other cases that are
going to be filed as well,” he said. “I think those will be both from
straight and gay service members who have been impacted by the sodomy
statute.”
The
“don’t ask” policy, according to Army spokeswoman Martha Rudd, calls for
each case to be judged on its own merits. Service members can be dismissed for
engaging in homosexual acts, openly asserting that they are gay or lesbian, or
proclaiming a same-sex marriage.
There
have been eight court challenges since the law took effect in 1994, said Dixon
Osburn, executive director and co-founder of the defense network. Four of them
made it to federal appeals courts.
“All
of them concluded that ‘don’t ask, don’t tell’ survived constitutional
muster only because the courts at the time were willing to defer to the
military and its judgment about the rationale underlying the policy,” Osburn
said.
None
went to the U.S. Supreme Court, he added.
Legal
experts disagree on the sodomy ruling’s impact.
“The
Lawrence decision takes away the main justification for anti-gay
discrimination in all arenas, which is moral disapproval of homosexuality,”
said Suzanne Goldberg, a law professor at the Rutgers University School of Law
in New Jersey. She was part of the legal team that represented the sodomy
defendants in Texas.
“It is
clear that Lawrence will have an effect on virtually all litigation about
lesbian and gay rights. I think the open question is the extent of that
effect.”
Loomis’
lawyer, Washington attorney David Sheldon, said that question is one the
military will have to examine:
“The
worn-out stereotypes that gays and lesbians cannot serve honorably in the
military because of their sexual orientation is going to be challenged and is
challenged by the Lawrence holding.”
But
George Fisher, a Stanford Law School professor in California, predicts that
the lower courts will rule in favor of the military, giving deference to the
Pentagon’s own rules, and the Supreme Court will decline to review.
The
Pentagon spokesman said the department’s general counsel’s office is
reviewing the Lawrence decision. It would be “premature” to say whether
military law would be affected, the spokesman said.
More
than 900 service members were discharged for violating rules on homosexuality
last year, according to the Servicemembers Legal Defense Network.
While
the connection between the military and civilians might not be as strong as
during the 1940s, when President Harry Truman ended racial discrimination in
the service, Goldberg said, the military’s size gives its decisions
tremendous weight.
Change
was apparent to Aaron Belkin, director of the University of California at
Santa Barbara’s Center for the Study of Sexual Minorities in the Military,
when an article he wrote appeared in the summer issue of Parameters, the
quarterly journal of the U.S. Army War College.
Belkin’s
article, “Don’t Ask, Don’t Tell: Is the Gay Ban Based on Military
Necessity?” detailed a study of four U.S. allies that dropped their bans.
“I
think it’s a legitimate issue that has to be dealt with,” Parameters
editor Robert Taylor said.
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