Last edited: July 31, 2004

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

Steve Ralls
(202) 328-3244, ext. 116

Washington, DCLTC 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

# # #

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

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

[Home] [News] [US Military]