Last edited: December 20, 2004

Lawrence Decision Launches Military ‘Gay’ Ban Challenges

Concerned Women for America, July 16, 2003
1015 Fifteenth St. N.W., Suite 1100, Washington, D.C. 20005
Phone: (202) 488-7000, Fax: (202) 488-0806

Homosexual activists are challenging the military’s ban on open homosexuality in light of the Supreme Court’s ruling in Lawrence v. Texas.

On July 7, former U.S. Army Lt. Col. Loren Stephen Loomis filed a federal lawsuit challenging the constitutionality of the ban in light of the high court’s ruling, as well as seeking back-pay, allowances and reinstatement of retirement benefits.

Loomis was administratively discharged from the Army on July 14, 1997, eight days before he reached retirement eligibility, disqualifying him from retirement benefits estimated at more than $1 million.

Servicemembers Legal Defense Network (SLDN), a homosexual activist group that provides legal representation to open homosexuals in the military, is representing Loomis in this case as it did during his discharge. (SLDN routinely charges that efforts to uphold the military’s ban on open homosexuality are “witch hunts.”)

Lawrence has a direct impact on the federal sodomy statute and the military’s gay ban,” said SLDN director C. Dixon Osburn in a press release. “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.”

In Lawrence v. Texas, the high court overturned the Texas sodomy law, saying it violated the right to privacy. That is a right, however, that is nonexistent in military law. The nation’s armed forces operate under their own criminal laws defined as the Uniformed Code of Military Justice (UCMJ). A section of that law excluding homosexuals from military service was passed by Congress and signed into law by President Clinton in 1993.

But military experts say the real impact of Lawrence will be its invitation to judicial activism, not in its legal implications on the UCMJ, USC 654.

“I don’t believe the sodomy case is legally binding on 654 because that law [Texas’ sodomy law] has no basis in the UCMJ Article 125, Sodomy,” Lt. Col. Robert L. Maginnis, USA ret., told Culture & Family Report. “It’s based on Article 1, Section 8, of the Constitution, which says the Congress sets the personnel rules for the military.”

“Personnel policies do not have to be based on matters of law but on issues of national security and the preservation of readiness,” he added.

This first lawsuit in the wake of the high court’s Lawrence decision is the first challenge to the 1993 addition to the UCMJ since the late 1990s. Eight court challenges were launched against that law by homosexual rights groups. Each was turned away by various federal appeals courts, which all gave deference to the military.

In 1998, the U.S. Supreme Court declined to hear a challenge to the military’s ban on homosexuality, until now, ending legal efforts to overturn the law.

That law states, “The potential for involvement of the armed forces in actual combat routinely make[s] 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.”

Given those conditions, the law says that homosexual activity 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 capability.”

This first challenge to the military’s homosexual ban has other problems that may hamper its impact on military law. According to the complaint filed by Lt. Col. Loomis, his discharge sprang from Loomis’ homosexual involvement in March 1995 with Michael A. Burdette, a young enlisted man also stationed at Fort Hood, Texas.

Loomis was discharged not only on the grounds of homosexual conduct but also conduct unbecoming an officer, stemming from his sexual involvement with a junior enlisted.

Given the facts of the Loomis challenge, and past rulings on the military’s ban on homosexual activity, proponents of the ban are encouraged about the outcome.

However, they say the Clinton-era “Don’t Ask, Don’t Tell” policy is problematic and in conflict with the law passed by Congress. Advocates are urging the Bush administration to lift the “Don’t Ask, Don’t Tell” regulations and uphold the 1993 strict homosexual-exclusion law.

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