Military's Gay Ban Challenged in Wake of Sodomy Ruling
The Advocate,
July 9, 2003
Citing the precedent set by the U.S. Supreme Court's ruling in the Texas
sodomy case, a decorated Vietnam combat veteran filed suit late yesterday with
the U.S. Court of Federal Claims challenging the constitutionality of the
military's antigay "don't ask, don't tell" policy. The challenge
filed by Lt. Col. Steve Loomis, who was ousted from the Army for being gay
just eight days prior to his 20-year retirement date in 1997, also challenges
the federal antisodomy statute covering the military. The lawsuit is based on
the recent U.S. Supreme Court opinion in Lawrence
v. Texas, which declared that the Texas sodomy statute violated the
Constitution's guarantee of the right to privacy. Loomis's suit seeks to
reverse his discharge. The challenge is the first of several likely to be
filed in the wake of Lawrence, according to the Servicemembers Legal Defense
Network, which represented Loomis during his initial discharge proceedings.
"Lawrence has a direct impact on the federal sodomy statute and the
military's gay ban," said SLDN executive director C. Dixon Osburn.
"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."
When the Army discharged Loomis, a former engineer war plans officer who
earned the Purple Heart in Vietnam, he lost his retirement pension worth an
estimated $1 million. Each of the Army officers sitting on the discharge board
that determined Loomis's fate called homosexuality a "sickness" or
said they had "no tolerance" for it, according to SLDN. The board
based its discharge on a videotape seized during an arson investigation. An
arsonist set fire to Loomis's home in 1996. Civilian authorities investigating
the arson found the videotape, which depicts Loomis in private consensual
adult sexual activity, and handed it over to Army officials. The Army used the
videotape as the basis for the discharge. Loomis later lost an appeal for
reinstatement.
The U.S. Supreme Court has not ruled on the constitutionality of the
military's sodomy statute or "don't ask, don't tell," but four
appellate courts have upheld the policy. "The legal landscape has changed
since the earlier courts' rulings," Osburn said. "Those decisions
were based in part on a view that the state could regulate private consensual
sexual conduct under Bowers v. Hardwick,"
an earlier Supreme Court opinion upholding Georgia's sodomy statute that the
current court has now overruled.
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