Last edited: February 10, 2005

Pentagon Wants Gay Policy Suit Thrown Out

By Christopher Curtis

PlanetOut Network, February 8, 2005

SUMMARY: The Bush administration asked a federal court to toss a lawsuit brought by the Servicemembers Legal Defense Network challenging the U.S. military’s “don’t ask, don’t tell” policy.

The Bush administration asked a federal court on Monday to toss a lawsuit challenging the U.S. military’s “don’t ask, don’t tell” policy.

In December, Servicemembers Legal Defense Network (SLDN) sued Secretary of Defense Donald Rumsfeld in the U.S. District Court for the District of Massachusetts on behalf of 12 gay men and lesbians seeking reinstatement in the U.S. armed forces.

SLDN believes “don’t ask, don’t tell” should be overturned because it compromises several constitutional rights, including “the right of privacy, equal protection of the law and freedom of speech.”

The 11-year-old policy was designed as a compromise between President Clinton and conservatives. Clinton had promised to allow gay and lesbian soldiers to serve openly; conservatives said gays and lesbians should not serve at all. Therefore, “don’t ask, don’t tell” allowed gays and lesbians to serve as long as they did not reveal their sexual orientation.

While “don’t ask, don’t tell” has been upheld the five times it’s been challenged in court, this latest suit, Cook v. Rumsfeld, is the first challenge to the policy after the Supreme Court’s Lawrence v. Texas ruling, which held that laws against homosexual sex were unconstitutional.

Two other lawsuits challenging “don’t ask, don’t tell” have been filed since Lawrence v. Texas. One was filed by the Log Cabin Republicans; the other was filed by a former soldier seeking to recover his pension.

In Monday’s filing, the Department of Defense claimed the Supreme Court’s ruling on Lawrence v. Texas does not undercut “don’t ask, don’t tell.” In its motion requesting that the court dismiss the SLDN lawsuit, the Department of Defense said, “These decisions are unaffected by the Supreme Court’s decision.”

“I disagree with that,” said Mitchell Katine, one of the attorneys who helped win Lawrence v. Texas.

“I think Lawrence v. Texas says that the government cannot demean or criminalize people for sexual activity done at home. So ‘don’t ask, don’t tell’ goes directly against the Supreme Court ruling,” Katine told the PlanetOut Network.

Steve Ralls, director of communications for SLDN, said he was not surprised by the Bush administration’s response. “We firmly believe we’re going to survive the motion to dismiss. We believe we are the best challenge against ‘don’t ask, don’t tell.’ And we believe the judge is going to move forward with the case.”

A Pentagon spokesman told Stars and Stripes, the newspaper for the nation’s military, that the Defense Department does not plan to budge on the gay ban.

“It’s in the best interest for the cohesion of the force,” Army Lt. Col. Joseph Richard said. “Living conditions, especially in combat operations, are often Spartan, primitive and characterized by forced intimacy with little or no privacy, thereby creating an environment that is cohesion-busting.”

But Stacy Vasquez, a former Army sergeant who was discharged in August 2003 and is now suing the government, disagrees.

“I served 12 years with heterosexual people and it worked just fine,” she told Stars and Stripes. “I don’t think it would be a problem.”

Katine is certain that “don’t ask, don’t tell” will be overturned—in this lawsuit, or another.

“The only question is when will this be reversed. It’s like the marriage thing,” he said. “No one can stop the future from coming. It’s just a matter of when.”

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