Last edited: December 06, 2004


Pentagon Policy on Gays Is Challenged

Associated Press, December 6, 2004

The Pentagonís ďdonít ask, donít tellĒ policy is being challenged by 12 gays who have been separated from the military because of their homosexuality.

They planned to file a federal lawsuit today in Boston that would cite last yearís landmark Supreme Court ruling that overturned state laws making gay sex a crime as grounds for overturning the policy.

Other courts have upheld the 11-year-old policy, but C. Dixon Osburn, executive director of Servicemembers Legal Defense Network, which is advising the plaintiffs, said those decisions predated the 2003 Supreme Court ruling in Lawrence v. Texas.

ďWe think the gay ban can no longer survive constitutionally,Ē he said.

Justin Peacock, a former Coast Guard member from Knoxville, Tenn., who is among the plaintiffs in the planned U.S. District Court lawsuit, was kicked out of the service after someone reported he was seen holding hands with another man.

ďI would love to rejoin, but even if I donít get back in, at least I could say I tried to get the policy changed,Ē Peacock said.

Lt. Col. Joe Richard, a Pentagon spokesman, said officials have not seen the lawsuit and therefore could not comment on it.

ďDonít ask, donít tell,Ē adopted during the Clinton administration, allows gay men and lesbians to serve in the military if they keep quiet about their sexual orientation and abstain from homosexual activity. The Pentagonís previous policy barred gays from military service.

The Supreme Court ruled last year that state laws making gay sex a crime were unconstitutional. That overturned a 1986 Supreme Court ruling that had upheld sodomy laws.

Two other lawsuits challenging the policy have been filed since the high courtís reversal.

One was brought in California by the Log Cabin Republicans, a political organization for gays. Osburn said that group could face a difficult fight because it was not bringing its suit on behalf of a specific injured party. He also noted that a federal appeals court in California has upheld ďdonít ask, donít tell,Ē but the appellate court in Boston has not ruled on the issue.

The other suit was filed in the U.S. Court of Federal Claims, which generally deals with cases that involve money. That plaintiff, who was separated from the Army, is seeking to recover his pension and is challenging the ban in the process. Osburn said the court might rule narrowly on the financial claim and not on the constitutionality of the gay members policy.


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