SLDN Lawsuit Challenges “Don’t Ask, Don’t Tell”
By Bob Roehr
Contributing Writer
The Servicemembers Legal Defense
Network (SLDN) launched its
promised challenge to the antigay mili
tary policy known as "Don't Ask, Don't
Tell" (DADT) on December 6 with a
lawsuit filed in federal court in Boston
and a news conference in Washington,
DC.
The dozen plaintiffs are from around
the country and served anywhere from
several months to more than fourteen
years before being kicked out for being
gay. The lawsuit charges that DATD
violates their rights under the First,
Fourth, Fifth, and Ninth Amendments
to the Constitution. All are seeking to be
reinstated in the military.
SLDN executive director C. Dixon
Osbum said, "They have all served
during the war on terrorism, three in
direct support of operations- in-the
Middle East. Together, they have served
more than sixty-five years in the armed
forces. Among them, they have earned
more than five dozen commendations,
medals, and awards."
1 hey represent more than 65,000 gay
and lesbian service members on active
duty and more than a million GLBT
veterans. "We hope to end, once and for
all, the ban on gays in the military.. .It is
unconstitutional and contrary to our
national security interests."
Osbum bases his optimism for suc
cess upon the 2003 Lawrence decision by
US Supreme Court that threw out state
sodomy laws. That opinion "declared
that gays and lesbians have a funda
mental right to privacy, free from inter
ference from our government."
Several of the earlier adverse deci
sions affirming the constitutionality of
DADT were based in part upon the
1986 Bowers V. Hardwick decision by
the Court, which upheld state sodomy
laws.
But the Lawrence decision explicitly
reversed that earlier precedent stating;
"Bowers was not correct when it was
decided, and it is not correct today. It
ought not to remain binding precedent.
Bowers v. Hardwick should be and
now is overruled."
This lawsuit, known as Cook v.
Rumsfeld, is one of the first to revisit
the issue of DADT in light of that legal
underpinning being knocked down.
Sharra E. Greer, SLDN's legal and
policy director, said, "There is no other
law quite like DADT. It is the only law
SLDN Executive Director C. Dixon Osbourne addressef that National Press'
Club. Photo by Bob Roehr
in the history of our nation that requires
the firing of an employee—from our
nation's largest employer—simply
because they are lesbian, gay, or bisexu
al."
"Service members are muzzled in
violation of their first amendment
rights. They are denied due process;
they are denied equal protection of the
law. They are forced to serve as second
class citizens and denied the opportuni
ty to serve their country for no good
reason at all."
"It is this law, and not the lesbians,
gay men, and bisexuals who serve their
country that undermine good order,
discipline, unit cohesion, and morale.
There can be no doubt that don't ask,
don't tell is blatantly unconstitutional,"
she said.
Two of the plaintiffs participated in
the news conference.
Lieutenant jg Jen Kopfstein joined the
Navy in 1995, winning honors as a mid
shipman at the US Naval Academy in
Annapolis and as a weapons officer
aboard ship. She told the story of her
grandfather who fought in the Battle of
the Bulge during WWII and of being on
a warship that left port on 9/11 not
knowing if the country would be under
further attack. "I am his blood, and I
was ready and willing to fight for my
country in time of crisis."
Her commander fought for her reten
tion when Kopfstein was under investi
gation for being a lesbian, but the inves
tigators paid little heed.
Dr. Monica Hill was "forced to
choose between serving my country as
an Air Force physician and caring for
my terminally ill partner, Terri Cason."
She requested a delay in reporting for
duty in order to care for Cason.
"I watched Terri die in her hospital
room as the World Trade Center towers
fell and the Pentagon burned, and I
never felt more helpless. I could not
stop the cancer from taking Terri, nor
was I at Andrews [Air Force Base near
Washington, DC] helping with the
casualties from the attacks."
Hill's request resulted in "a long and
humiliating interrogation" and eventu
al termination from the Air Force. The
military later sought recoupment, or
repayment the money they had paid
toward Hill's medical education. That
process is ongoing.
"Last month, 135 servicemen and
women were killed in Iraq. No one can
ever know how my presence as a physi
cian could have altered the outcome of
those casualties," Hill said.
Stuart Delery is an attorney with the
prestigious firm of Wilmer Cutler
Pickering Hale and Dorr, which has
taken on the case on a pro bono basis.
He recounted how the firm has a long
continued on page 13
Military Appeals
Court Reverses
Heterosexual
Sodomy
Conviction
WASHINGTON (AP) - A military
appeals court has overturned the
conviction of a soldier for hetero
sexual sodomy in a decision that
legal scholars and advocates for
gay rights say may have broader
implications for gays serving in
the armed forces.
The decision, issued late last
month by the United States Army
Court of Criminal Apporfs, was
based in part on the Supreme
Court opinion in Lawrence v.
Texas, which declared last year
that the Texas sodomy statute vio
lated the right to privacy.
I he case before the Army court
involved a male Army specialist
who admitted that he had
engaged in consensual oral sex in
a barracks room with a female
civilian whom he had met at a
nightclub. But those seeking to
abolish the military's "don't ask,
don't tell” policy, and some legal
experts, say the ruling is also
applicable to private gay sex - thus
cracking the foundation of the mil
itary's rationale for requiring gavs
to serve in silence.
Under Article 125 of the
Uniform Code of Military Justice,
armed forces personnel are pro
hibited from "unnatural carnal
copulation with another person of
the same or opposite sex or with
an animal."
lhe separate policy regarding
the service of gays and lesbians in
the armed forces, known as "don't
ask, don't tell," bars officials from
inquiring into a soldier's sex life
unless there is evidence of homo
sexual conduct. But those who
volunteer the information can be
discharged.
"The effect on 'don't ask, don't
continued on page 14
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