‘Don’t Ask, Don’t Tell’ Faces Challenge
Times, July 7, 2003
3600 New York Avenue NE, Washington, DC 20002 Fax: 202-269-3419
By Rowan Scarborough, The Washington Times
Groups opposed to the military’s homosexual ban are
exploring whether to revive court challenges to the law, basing new actions on
the Supreme Court’s June 26 sodomy ruling.
“It’s not definite, but I would say it is an 80
percent possibility that we will” file a lawsuit on behalf of service
members discharged because they are homosexual, says C. Dixon Osburn, director
of the Servicemembers Legal Defense Network.
The group helps those targeted under the exclusion
policy, known as “don’t ask, don’t tell.” It also assisted homosexual
rights groups in unsuccessful legal challenges in the 1990s.
As homosexual rights advocates plot strategy,
pro-military groups are gearing up for a renewed fight. The Pentagon is
studying the ruling as well. The Supreme Court struck down the Texas law that
criminalized homosexual sodomy, saying the statute violated privacy rights.
“It certainly could embolden the gay groups to go after
the law again,” says Elaine Donnelly, head of the Center for Military
Readiness. “The case could be made that under this new principle the law
should be considered unconstitutional.”
William Woodruff, a professor at Campbell University
School of Law in North Carolina and a retired Army colonel, says: “I’m
sure the ruling will be used to try to overturn section 654 [the
homosexual-exclusion law]. But I’m not sure it’s a winner.”
The same two groups that brought legal suits in the
1990s—the American Civil Liberties Union, and Lambda Legal Defense and
Education Fund—are studying the Lawrence v. Texas case to make new
The Texas decision, Mr. Osburn says, “changes the
“Now, whether it’s enough to reverse opinion on
challenges to the gay ban or not remains an open question.” He says new
lawsuits are most likely to argue that the Supreme Court’s defense of
privacy should also apply to consenting adults in the military.
The U.S. armed forces, which operate under their own
criminal laws as defined by the Uniformed Code of Military Justice, ban
sodomy. A separate UCMJ section enacted in 1993 and signed by President
Clinton excludes homosexuals from military service.
The Clinton administration drafted the don’t ask,
don’t tell policy in 1994. It allows homosexuals to serve as long as they
keep their sexuality private. The 1993 law reinforced a homosexual ban that
existed for years. Congress enacted the prohibition after Mr. Clinton moved in
his first months in office to lift the ban by decree.
There is a tried-and-true defense if homosexual advocates
file lawsuits, proponents of the ban say.
Mr. Woodruff, a lawyer during a 22-year military career,
and Mrs. Donnelly point out that courts have for years given the military
deference to make special rules it needs to maintain what it calls “good
order and discipline.” In fact, legal challenges to the 1993 law ended in
the late 1990s, after eight court challenges from homosexual rights groups
failed. Federal courts of appeals from Virginia to California backed the
military’s right to regulate sexuality in the ranks. The Supreme Court
refused to hear petitions filed by homosexual advocacy groups in 1998. The
ruling seemed to have settled the argument.
Al Gore revived the issue during the 2000 presidential
campaign, promising homosexuals he would appoint generals and admirals to the
Joint Chiefs of Staff only if they agreed to open the ranks to homosexuals.
Now the Supreme Court may have opened the door for a new challenge.
“We’re trying to figure out how the decision will
affect the military policy,” says Paul Cates, director of public education
for the Lesbian and Gay Rights Project in the American Civil Liberties Union.
“We’re studying the decision.”
Air Force Maj. Michael Shavers, a Pentagon spokesman,
says the Defense Department’s general counsel is examining the Supreme Court
ruling to see whether it affects the sodomy or homosexual laws. “It’s a
little premature to say there would be any impact at this point,” he says.
Mrs. Donnelly says there are three key reasons appeals
courts will uphold the ban, even with the Lawrence decision in place. Courts
have for years allowed the Pentagon to make rules, unacceptable in civilian
law, to instill discipline. An example is the law prohibiting officers from
having romantic relationships with those of lower rank.
Mrs. Donnelly notes that there is no right to privacy in
the military, as the Supreme Court decreed there is for civilians. Because the
law applies to both sexes, in her view equal-protection arguments view would
not be successful.
On this point, the law states, “The potential for
involvement of the armed forces in actual combat routinely make it necessary
for members of the armed forces involuntarily to accept living conditions and
working conditions that are often spartan, primitive and characterized by
forced intimacy with little or no privacy.” Homosexual conduct creates “an
unacceptable risk to the armed forces’ high standards of morale, good order
and discipline, and unit cohesion that are the essence of military
“I feel very confident about the law,” Mrs. Donnelly
says. She urges President Bush to discard the Clinton don’t ask, don’t
tell regulations because, she says, they differ from the strict
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