Last edited: July 31, 2004

Viet Vet Files ‘Don’t Ask Don’t Tell’ Constitutional Challenge Based on Sodomy Ruling

By Doreen Brandt, Newscenter, Washington Bureau, July 8, 2003

Washington, D.C.—Steve Loomis, a decorated Vietnam combat veteran and recipient of the Purple Heart, has filed suit with the U.S. Court of Federal Claims challenging the constitutionality of “Don’t Ask, Don’t Tell” and the federal sodomy statute, among other claims.

His challenge is based on the recent U.S. Supreme Court opinion in Lawrence v. Texas which declared that the Texas sodomy statute violated the United State’s Constitution’s guarantee of a right to privacy. Loomis is seeking to reverse his 1997 discharge from the United States Army.

“Lawrence has a direct impact on the federal sodomy statute and the military’s gay ban,” said C. Dixon Osburn, executive director of the Servicemembers Legal Defense Network, which represented Loomis during his initial discharge proceedings.

“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,” Osburn said.

According to Pentagon statistics, the Pentagon has discharged more than 9,000 service members for being gay since “Don’t Ask, Don’t Tell” was first implemented ten years ago. Congress codified “Don’t Ask, Don’t Tell” into law in 1993 in response to President Clinton’s efforts to end discrimination against lesbian, gay and bisexual service members. The law requires lesbian, gay and bisexual service members to keep their sexual orientation an absolute secret or face the risk of discharge.

The Army discharged Loomis, a former engineer war plans officer, for being gay eight days prior to his twenty year retirement date. As a result, he forfeited his retirement pension worth an estimated one million dollars. Each of the Army officers sitting on the discharge board that determined Loomis’ fate called homosexuality “a sickness” or said they had “no tolerance” for homosexuality. Efforts to remove those officers from the discharge board for bias failed.

The Army based its discharge on a videotape seized during an arson investigation. An arsonist set fire to Loomis’ home in 1996. Civilian authorities investigating the arson found the videotape, which depicts Loomis in private adult consensual sexual conduct, and handed it over to Army officials. The Army used the videotape as the basis for discharge, ending the decorated veteran’s distinguished career. The Army provided Loomis no assistance in responding to the tragedy of losing his home or possessions.

Loomis appealed his discharge through the military’s administrative process, petitioning the Army Board for the Correction of Military Records. The Board declined to reinstate Loomis to the Army or award him his retirement benefits.

Loomis’ suit challenges the constitutionality of both the federal sodomy statute and “Don’t Ask, Don’t Tell” based on the recent United State Supreme Court opinion in Lawrence v. Texas that struck down Texas’ sodomy statute. Justice Anthony Kennedy, in writing the court’s majority opinion, stated that the “right to liberty under the Due Process Clause gives…the full right to engage in private conduct without government intervention.”

The United State Supreme Court has not ruled on the constitutionality of the military’s sodomy statute or “Don’t Ask, Don’t Tell.” Four appellate courts have upheld “Don’t Ask, Don’t Tell” to date.

“The legal landscape has changed since the earlier courts’ rulings,” said Osburn. “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.

Loomis received a Purple Heart, two Bronze Stars, and an Air Medal for his service in Vietnam. He received his fourth Meritorious Service Medal, recognition of his promotion to Colonel and a certificate of appreciation from his commanding general on the evening his home was destroyed by arson.

“All too often, the Army denies those who have sacrificed in its service the basic protection of law,” said Loomis. “If the military will pursue a decorated officer and combat veteran such as myself, one can only imagine the hurdles faced by young service men and women who find themselves in the Catch-22 of ‘Don’t Ask, Don’t Tell.’”

Loomis is being represented by David Sheldon, a Washington, D.C. based attorney, and noted expert on military law. In addition to Loomis’ constitutional challenges to the military’s sodomy statute and gay ban, Loomis is alleging wrongful search and seizure in violation of his Fourth Amendment rights, as well as several claims that the Board for Corrections acted in an arbitrary and capricious fashion. Monday, a lesbian couple in Utah filed suit challenging the state’s anti-gay adoption law using the Supreme Court decision.

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