Last edited: October 02, 2003

Sodomy Ruling May Affect Military

Gay ex-soldier thinks his case could topple don’t-ask, don’t-tell policy

Houston Chronicle, July 14, 2003
801 Texas Avenue, Houston, TX 77002
Fax: 713-220-6575

By Kim Cobb, Houston Chronicle

Lt. Col. Steve Loomis wants his honor back and the military pension he says is due him, but his trip to federal court also could serve to bring down the military’s controversial don’t-ask, don’t-tell policy on sexual orientation.

A highly decorated soldier who was awarded a Purple Heart, two Bronze Stars and four meritorious service medals, Loomis saw his nearly 20-year career end in 1997 in a bitter conflagration of sex, fire and videotape.

Loomis always had kept his homosexuality a private matter. But his privacy—and his military career—burned down with his home outside Fort Hood in August 1996.

Firefighters investigating the blaze thought a loaded videocamera discovered in the rubble might provide a clue to the identity of the arsonist suspected in the blaze. But the tape included images of Loomis engaged in sexual acts with three other enlisted men, as well as nude shots of an Army private who later would be convicted of the arson.

Loomis was “outed,” and the Army drummed him out of the service on July 14, 1997, for violating the military’s ban on open homosexuality.

Six years into civilian life, Loomis is 56 and lives in Albuquerque, N.M. Having finally exhausted all his military appeals, Loomis was in Washington last month preparing to file suit against the Army in federal court when the U.S. Supreme Court announced it was striking down the Texas anti-sodomy law as an unconstitutional violation of the right to privacy.

It was the break he’d been waiting for.

“I’ve been following the Texas case for quite some time,” Loomis said. “Of course, when (the opinion) came out, there was a sense there even before I read it that it would give us some additional strong arguments.”

Loomis tends to downplay his last year in the Army.

“It was traumatic in a way,” he said, “but I knew what the military’s policy was—I knew the potential was there for difficulties.”

Still, his forced separation from the Army was a tough blow for a highly decorated Vietnam War veteran whom a brigade commander once called “a proud, tough soldier with unlimited potential.” Loomis received a less than honorable discharge for “conduct unbecoming an officer” and lost the pension he would have been eligible for eight days after his discharge.

In the short term, Loomis wants an honorable discharge and his pension back. But he thinks his case, bolstered by the Supreme Court’s decision, could help end the military’s don’t-ask, don’t-tell policy that the Clinton administration forged 10 years ago.

Soon after his election in 1992, President Clinton said he would end the military ban on homosexuals, but he drew such heated opposition from the Joint Chiefs of Staff and Congress that he negotiated a compromise that critics on both sides say only muddied the waters. The law became known as “Don’t Ask, Don’t Tell, Don’t Pursue” because it abolished the questions about sexual orientation that previously accompanied the beginning of military service and pledged to limit investigations of suspected gay, lesbian and bisexual service members.

The policy stated that having gay friends, going to gay bars, or marching in gay pride parades never were to be considered credible evidence of homosexual activity. It also aimed to stamp out harassment of military personnel for perceived sexual orientation.

But the law continues to support discharge from the military if a service member admits to homosexuality, engages in sexual activity with people of the same gender or attempts to marry a person of the same sex.

Since the don’t-ask, don’t-tell policy went into effect in February 1994, the number of gay and lesbian discharges has been climbing. There were 1,273 discharges in fiscal 2001—about twice as many as the year the policy first took effect. But the number dropped off slightly to 906 discharges in 2002.

“We noticed a growing resistance to discharging people (during) the buildup with Iraq,” said Sharra Greer, director for law and policy at the Servicemembers Legal Defense Network.

Greer says it’s much too early to tell whether the Supreme Court’s ruling in the Lawrence v. Texas case will affect the military’s prohibition against homosexuality.

“Clearly, the language of Lawrence does raise some questions about don’t-ask, don’t-tell, but there is also the doctrine of military deference—judges tend to defer to the military’s assessment of what it needs to run an efficient operation,” Greer said.

“The consistent trend has been that the military knows best what it needs and courts upheld that military people have different rights than when they’re civilian,” she said.

The Department of Defense, however, is studying its policy in light of the recent Supreme Court ruling.

“The Supreme Court decision did not involve the Department of Defense,” an agency spokesperson noted. “Rather, the case was a challenge of state criminal law that led to a state criminal conviction. Sodomy remains a court-martial offense under the Uniform Code of Military Justice.”

Public debate over the military ban on homosexuality has fallen off sharply in recent years. The policy came under the spotlight most recently in July 1999 following the beating death of Pfc. Barry Winchell, a reportedly gay soldier assigned to the 101st Airborne Division at Fort Campbell, Ky.

A military investigation concluded that the don’t-ask, don’t-tell policy and its prohibitions of harassment were being fairly enforced but that the actions of an abusive noncommissioned officer had contributed to the climate in which the crime against Winchell occurred.

The Department of Defense commissioned a review of the policy’s effectiveness and application in 1998, and the undersecretary of Defense for Personnel and Readiness concluded that the increased number of discharges for homosexual conduct was cause for concern. But that report also stated the military’s historic argument for maintaining the ban—that the close quarters involved with military service and soldiers’ dependence on each other in life-threatening situations made trust an imperative.

The report noted that 98 percent of the homosexual discharges in 1997—the year Loomis was drummed out—were either honorable discharges or occurring within the first 180 days of service and therefore “uncharacterized.” Discharges such as the one handed Loomis, labeled as occurring under something other than honorable conditions, were infrequent and usually involved aggravating circumstances or additional charges.

The report also noted that women were being discharged at a disproportionately high rate when compared with their representation in the armed forces, a revelation Loomis said underscores the military’s pressure to conform to certain social norms.

“One of the things I’ve experienced is that don’t-ask, don’t-tell puts at risk two groups that most people don’t expect: It puts at risk straight women in the military and straight men,” Loomis said.

“Because that policy exists, if you’re a woman ... and you turn down a date from a male soldier, the male soldier can always start rumors in the barracks,” Loomis said.

“The same thing can be said if men don’t participate in the usual Saturday night drunken dates,” Loomis said. “People can start rumors about them, too. It puts at risk everyone in the military, everyone who doesn’t act the same in social climates.”

Loomis filed his case July 7 in the U.S. Court of Federal Claims. He is seeking a full honorable discharge and $1.1 million in pension payments.

Loomis said his military experience was a good one until that last year. He can count on “less than one hand,” he said, the number of times over his 20-year career that people made disparaging remarks or implied that he might be gay, he said.

“I think the negative feelings that people claim exist in the military are, first of all, a partially imagined experience from the past,” Loomis said.

He did not perceive strong, anti-gay sentiment, he said, though he was aware of people being discharged for homosexuality.

“But I also want the courts to acknowledge that don’t-ask, don’t-tell is unfair and just doesn’t work,” Loomis said. “I also don’t think it’s good disciplinary policy for the military—it creates problems when you treat one class of people in uniform differently from others.”

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