Military's gay ban challenged in wake of sodomy ruling

BY Advocate.com Editors

July 08 2003 11:00 PM ET

Citing the precedent set by the U.S. Supreme Court's ruling in the Texas sodomy case, a decorated Vietnam combat veteran filed suit late yesterday with the U.S. Court of Federal Claims challenging the constitutionality of the military's antigay "don't ask, don't tell" policy. The challenge filed by Lt. Col. Steve Loomis, who was ousted from the Army for being gay just eight days prior to his 20-year retirement date in 1997, also challenges the federal antisodomy statute covering the military. The lawsuit is based on the recent U.S. Supreme Court opinion in Lawrence v. Texas, which declared that the Texas sodomy statute violated the Constitution's guarantee of the right to privacy. Loomis's suit seeks to reverse his discharge. The challenge is the first of several likely to be filed in the wake of Lawrence, according to the Servicemembers Legal Defense Network, which represented Loomis during his initial discharge proceedings. "Lawrence has a direct impact on the federal sodomy statute and the military's gay ban," said SLDN executive director C. Dixon Osburn. "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."

When the Army discharged Loomis, a former engineer war plans officer who earned the Purple Heart in Vietnam, he lost his retirement pension worth an estimated $1 million. Each of the Army officers sitting on the discharge board that determined Loomis's fate called homosexuality a "sickness" or said they had "no tolerance" for it, according to SLDN. The board based its discharge on a videotape seized during an arson investigation. An arsonist set fire to Loomis's home in 1996. Civilian authorities investigating the arson found the videotape, which depicts Loomis in private consensual adult sexual activity, and handed it over to Army officials. The Army used the videotape as the basis for the discharge. Loomis later lost an appeal for reinstatement.

The U.S. Supreme Court has not ruled on the constitutionality of the military's sodomy statute or "don't ask, don't tell," but four appellate courts have upheld the policy. "The legal landscape has changed since the earlier courts' rulings," Osburn said. "Those decisions were based in part on a view that the state could regulate private consensual sexual conduct under Bowers v. Hardwick," an earlier Supreme Court opinion upholding Georgia's sodomy statute that the current court has now overruled.

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