Last edited: January 02, 2005

Lawsuit Challenges Military’s Gay Policy

Atlanta Journal-Constitution, July 20, 2003
72 Marietta Street NW, Atlanta, GA 30303
Fax: 404-526-5746

By George Edmonson, The Atlanta Journal-Constitution

WASHINGTON—To the recognition he received in almost 20 years of military service—Bronze Stars, Purple Heart, promotions—former Lt. Col. Steve Loomis would like to add another distinction: helping to end the “don’t ask, don’t tell” policy on gays.

Loomis was dismissed from the Army in 1997, after an arson investigation of a fire at his home turned up evidence that he was gay. Now his lawsuit is the latest assault on the nearly 10-year-old “don’t ask” policy, and it is thought to be the first suit filed following the recent U.S. Supreme Court ruling that a Texas sodomy law “furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.”

Loomis said he delayed filing his federal suit, seeking retirement benefits, to incorporate the ruling on the Texas law.

He would like the courts to declare the military’s policy unfair. But his lawyer said it’s more likely the court will rule in his case on other grounds, probably the question of whether the Army properly followed its procedures.

Loomis’ discharge came a few days shy of his 20th anniversary in the Army—a mark that would have made him eligible for retirement benefits.

“I’ll be honest with you—yes, I want to see my own personal retirement reinstated. It’s valuable to me,” said Loomis, who now works in land development in Albuquerque, N.M.

“But by the same token, I think there are a couple of other things that I would like to see out of this. One would be that the Army recognize that my service was, in fact, good and beneficial to the military.

“I would think I would also like to see the courts acknowledge that ‘don’t ask, don’t tell, don’t pursue’ is unfair, and it just isn’t working.”

A Pentagon spokesman, in an e-mail response to a question, said the Defense Department cannot comment because it has not received the complaint. It has until early September to file a response.

Ten years ago this month, President Clinton announced the new policy, which sought to end military officials’ efforts to expose and expel gays in the ranks. It was signed into law that November.

Steve Ralls, director of communications for the Servicemembers Legal Defense Network, which assists those affected by “don’t ask, don’t tell,” said Loomis’ case is only the beginning of a new round of assaults on the policy and prohibition of sodomy for anyone in the service.

“We anticipate that . . . there are going to be numerous other cases that are going to be filed as well,” he said. “I think those will be both from straight and gay service members who have been impacted by the sodomy statute.”

The “don’t ask” policy, according to Army spokeswoman Martha Rudd, calls for each case to be judged on its own merits. Service members can be dismissed for engaging in homosexual acts, openly asserting that they are gay or lesbian, or proclaiming a same-sex marriage.

There have been eight court challenges since the law took effect in 1994, said Dixon Osburn, executive director and co-founder of the defense network. Four of them made it to federal appeals courts.

“All of them concluded that ‘don’t ask, don’t tell’ survived constitutional muster only because the courts at the time were willing to defer to the military and its judgment about the rationale underlying the policy,” Osburn said.

None went to the U.S. Supreme Court, he added.

Legal experts disagree on the sodomy ruling’s impact.

“The Lawrence decision takes away the main justification for anti-gay discrimination in all arenas, which is moral disapproval of homosexuality,” said Suzanne Goldberg, a law professor at the Rutgers University School of Law in New Jersey. She was part of the legal team that represented the sodomy defendants in Texas.

“It is clear that Lawrence will have an effect on virtually all litigation about lesbian and gay rights. I think the open question is the extent of that effect.”

Loomis’ lawyer, Washington attorney David Sheldon, said that question is one the military will have to examine:

“The worn-out stereotypes that gays and lesbians cannot serve honorably in the military because of their sexual orientation is going to be challenged and is challenged by the Lawrence holding.”

But George Fisher, a Stanford Law School professor in California, predicts that the lower courts will rule in favor of the military, giving deference to the Pentagon’s own rules, and the Supreme Court will decline to review.

The Pentagon spokesman said the department’s general counsel’s office is reviewing the Lawrence decision. It would be “premature” to say whether military law would be affected, the spokesman said.

More than 900 service members were discharged for violating rules on homosexuality last year, according to the Servicemembers Legal Defense Network.

While the connection between the military and civilians might not be as strong as during the 1940s, when President Harry Truman ended racial discrimination in the service, Goldberg said, the military’s size gives its decisions tremendous weight.

Change was apparent to Aaron Belkin, director of the University of California at Santa Barbara’s Center for the Study of Sexual Minorities in the Military, when an article he wrote appeared in the summer issue of Parameters, the quarterly journal of the U.S. Army War College.

Belkin’s article, “Don’t Ask, Don’t Tell: Is the Gay Ban Based on Military Necessity?” detailed a study of four U.S. allies that dropped their bans.

“I think it’s a legitimate issue that has to be dealt with,” Parameters editor Robert Taylor said.

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