Vietnam Veteran Files Constitutional Challenge To “Don’t Ask, Don’t
Tell” & Federal Sodomy Statute
Case is First Following Supreme Court Sodomy Decision
Servicemembers
Legal Defense Network, July 8, 2003
Contact: David P. Sheldon, Esq.
(202) 546-9575
DavidSheldon@DavidSheldonLaw.com
Steve Ralls
(202) 328-3244, ext. 116
sralls@sldn.org
Washington, DC—LTC Steve Loomis, a decorated Vietnam
combat veteran and recipient of the Purple Heart, filed suit late yesterday
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. The 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. LTC Loomis
is seeking to reverse his 1997 discharge from the United States Army.
Servicemembers Legal Defense Network (SLDN), which
represented LTC Loomis during his initial discharge proceedings, noted that
his case is the first of several likely to be filed in the wake of Lawrence.
“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.”
According to Pentagon statistics reported by SLDN, 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 LTC Loomis, a former engineer war
plans officer, for being gay eight days prior to his twenty year retirement
date. As a result, LTC Loomis forfeited his retirement pension worth an
estimated one million dollars. Each of the Army officers sitting on the
discharge board that determined LTC 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 LTC Loomis’ home in 1996.
Civilian authorities investigating the arson found the videotape, which
depicts LTC 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 LTC Loomis no assistance in responding to the tragedy of losing his
home or possessions.
LTC Loomis appealed his discharge through the
military’s administrative process, petitioning the Army Board for the
Correction of Military Records (BCMR). The Board declined to reinstate LTC
Loomis to the Army or award him his retirement benefits.
LTC 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.
LTC 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 LTC 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.’”
LTC 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.
Copies of LTC Loomis’ complaint are available online at
www.sldn.org.
# # #
Servicemembers Legal Defense Network is a national,
non-profit legal services, watchdog and policy organization dedicated to
ending discrimination against and harassment of military personnel affected by
‘Don’t Ask, Don’t Tell’ and related forms of intolerance. For more
information, visit www.sldn.org.
David P. Sheldon is the managing partner of the Law
Offices of David P. Sheldon, in Washington, D.C. Mr. Sheldon represents
military personnel in a range of federal court and administrative proceedings,
including discharges under the “Don’t Ask, Don’t Tell, Don’t Pursue,
Don’t Harass” policy. Visit his website at www.DavidSheldonLaw.com.
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