Last edited: February 06, 2005

‘Don’t Ask, Don’t Tell’

Is the military out of step?

12 troops, discharged for being gay, are suing over what some call an outdated rule. The Defense Department says it’s just enforcing the law.

Houston Chronicle, February 6, 2005

By Patty Reinert, Washington Bureau

Discharged Under Policy
1999: 1,034 discharges
2000: 1,212
2001: 1,227
2002: 885
2003: 770
Source: Pentagon 

WASHINGTON—At first, it seemed to Army Spc. Tommy Cook to be just another hateful comment.

“A soldier we all knew was gay had walked by our truck,” said Cook, who at the time was about to be deployed to Iraq. “My sergeant said, `If I ever find out anyone in my crew is gay, I would kill him.’ “

But when Cook, 22, thought more about it, he decided it was time to come out of the closet after working for three years under the military’s controversial “Don’t Ask, Don’t Tell” law.

Cook, from Angleton, reported the incident to his company commander at Fort Hood in late 2003, saying he feared for his life.

The result was inevitable: Cook was discharged from the Army because he is gay.

Now he and former Houstonian Stacy Vasquez, a 12-year Army veteran who worked as a paralegal at posts around the world and as a recruiter in Dallas, have joined 10 other ousted gay military members in suing the Department of Defense to get their jobs back.

The lawsuit, filed in U.S. district court in Boston, is the first challenge to “Don’t Ask, Don’t Tell” since the U.S. Supreme Court ruled in a 2003 Houston sodomy case, Lawrence v. Texas, that gay adults have the same constitutional right to privacy as heterosexuals.

The government is expected to file its response to the lawsuit this week. The case eventually could end up before the U.S. Supreme Court, setting up another landmark decision that would further define the rights of gay and lesbian Americans.

Previous challenges failed

Sharon Alexander, an attorney with the Washington-based Servicemembers Legal Defense Network, which is representing the plaintiffs, said her group challenged “Don’t Ask, Don’t Tell” several times during the 1990s and lost.

“Now we believe we have a very good shot,” she said. “This is an outdated law based on bigotry, and the Supreme Court has made very clear that bigotry cannot be a rationale for a law in this country.”

The organization said it filed the case in Boston, the hometown of one of the plaintiffs, aiming for a fresh view from the appellate courts. The federal circuit court for Massachusetts is the only one covering states where the plaintiffs live that has not considered a case about the military policy on gays, the group explained.

“Don’t Ask, Don’t Tell,” signed into law in 1993, was billed as a compromise between President Clinton, who wanted to remove an all-out ban on gays serving in the military, and congressional and military leaders determined to preserve it.

The law says the military should not ask the troops about their sexual orientation, and gay members should neither volunteer the information nor engage in sex with partners of the same gender.

Soldiers who disclose their homosexuality—or are outed by others—must be discharged under the law. More than 10,000 military men and women have been discharged because they are gay since the law went into effect.

Cook said he didn’t think his sergeant’s threat was directed specifically at him. But the more time he spent in war training with the man, the more he feared becoming a target of friendly fire in Iraq.

“You never know what’s going to happen when they have live ammo in their hands as opposed to blanks,” he said.”I was sitting there in the truck with him and every day eating with him and living with him. I started thinking, `This could really happen.’ “

The Justice Department, which is defending the government in the Boston case, Cook v. Rumsfeld, declined to comment on the litigation.

A Pentagon spokesman, Lt. Col. Joe Richard, also declined to discuss the case, which involves plaintiffs from every branch of the military.

But Richard said the Defense Department continues to believe the law “serves the good order and discipline of the armed services.”

Even if it didn’t, he said, the department would have no choice but to enforce it.

“Therefore, we believe those who have objections and concerns with respect to this should perhaps turn their attention to Congress,” he said.

Discharges drop

Military leaders and some lawmakers have justified “Don’t Ask, Don’t Tell” by saying openly gay and lesbian soldiers would disrupt the cohesion and effectiveness of units, especially during wartime. However, Pentagon records show that discharges under “Don’t Ask, Don’t Tell” have dropped 36 percent since the wars in Afghanistan and Iraq began.

Alexander offers several possible explanations.

First, there is a growing acceptance of gays serving in the military, she said, and some commanders, especially the younger ones, are reluctant to enforce a law they believe to be unfair.

She pointed out that in Afghanistan and Iraq, U.S. troops serve alongside allies from other countries that allow gay soldiers to serve openly. U.S. soldiers also interact daily with gay and lesbian employees of U.S. contractors, many of whom are protected by their companies’ anti-discrimination policies.

It could also be the case, Alexander said, that with a war on, commanders in the field either don’t want to lose any able-bodied soldiers or they simply don’t have time to worry about enforcing “Don’t Ask, Don’t Tell.”

Richard dismissed those explanations as a “fanciful analysis” by opponents of the law.

There’s never been a concerted effort to go on witch hunts to identify gay soldiers, he said. “It is only when they declare themselves or openly practice their sexual preference that we have no alternative but to begin the investigative process and make a determination as to whether or not they themselves are homosexual.”

If there’s a drop in discharges, he said, it’s not because of lack of enforcement of “Don’t Ask, Don’t Tell,” but simply because fewer gay soldiers are telling.

“I’m not denying the drop,” he said. “But the only thing those numbers show is that there have been fewer service members found to be in violation of the policy.”

Vasquez said she managed not to “tell” for 12 years and had a spotless service record until the wife of a colleague reported to Vasquez’s commander that she had seen Vasquez kissing a woman in a bar. The Army then gave Vasquez an impossible choice: She could either write a statement declaring her homosexuality, paving the way for her discharge, or face criminal charges and a court martial for “conduct unbecoming.”

“I was mortified,” said Vasquez, a 32-year-old Dallas native who was discharged in 2003 after reaching the rank of sergeant first class and being tapped for recruiting duty. “I saw my entire career flash in front of my face. It’s a very scary feeling to be closeted for so long in your career and then to have someone out of the blue to call you in and ask you about such a personal thing.”

After consulting two lawyers—one a civilian and one from the military—she wrote a letter to her commander.

“It was a very simple statement that I’m a homosexual, and that I would never do anything to bring discredit upon the service, and that I would be glad to serve my country as long as I could do so openly and with integrity,” she said.

“I had never been in any trouble ever in my career,” Vasquez said. “It was very important to me, if I was going to leave the military, to leave with a good record that reflected my 12 years of service, not something that could possibly reflect one minute of one day that someone reported about my life.”

Once she signed the letter, she was honorably discharged. And she finally told her parents she is gay.

“I had to go to my family and tell them what was going on,” she said. “Some people just have a job, and they just go to it every day. I had really given my entire adult life to the Army, and for me to lose my job was absolutely devastating. My family was completely supportive.”

Vasquez used the G.I. Bill to earn a degree in political science and women’s studies at the University of Houston.

She taught high school social studies in Houston for a semester before moving to Washington early this year to work as a paralegal with the Servicemembers Legal Defense Network.

If she wins the lawsuit, though, she intends to resume her military career.

“I loved my Army life,” she said. “ ... I just want to serve my country again.”

`It doesn’t fit at all’

Alexander, herself an Army veteran, said that attitude is shared by all 12 plaintiffs in the lawsuit, as well as by many gays and lesbians determined to remain in the armed forces.

U.S. Census data from 2000 suggests there are at least 65,000 homosexuals serving.

“The Army so many of us know and love shouldn’t have this policy. It doesn’t fit at all with all the values of honesty and integrity and diversity that are taught in the Army,” she said.

But while there might be a growing sentiment in the ranks that the policy is a dinosaur that needs to go, it’s up to Congress or the courts to change it, she said. “It can’t change because somebody in the Army decides it’s a bad idea. It’s a federal law.”

Military personnel who do not acknowledge their homosexuality can still be removed from the armed forces.

A commander who receives what he considers to be credible information about the homosexuality of a serviceman or servicewoman can launch an investigation into whether the person is gay.

If an investigation proves the allegation, a homosexual in the military could face dishonorable or a general discharge or could be prosecuted in military court for committing an “indecent act” or “conduct unbecoming.”

Vasquez took pains to defend the Army.

“They never taught me to be ugly or mean or to discriminate against anyone. They always taught me the best of values: loyalty, duty, respect, selfless service, honor, integrity and personal courage,” she said. “I carry those into my adult life as a civilian as well, and they work. This just happens to be an isolated policy that does not work.”

Cook also has told his family and friends he is gay, and he’s tried to restart his life as a civilian. He is working at a Lake Jackson restaurant and plans to go back to college to get a nursing or a premed degree—unless the Army takes him back. Like Vasquez, he misses the work, the camaraderie of military life and the sense of belonging to something.

He had served one tour of duty in Kuwait and had been looking forward to going to Iraq. He was devastated, he said, when a battalion commander suggested he might be using “Don’t Ask, Don’t Tell” to avoid the war.

Cook’s company commander stood up for him, saying he deserved an honorable discharge, which he eventually got.

“I would go to Iraq right now if they would let me,” Cook said.

“I was trying to serve my country and make a career out of it. That was my job. That was my life. Those were my friends—and those still are my friends,” he said. “ ... Why should I have to settle for second best because I am gay?”

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