‘Don’t ask, don’t tell’ faces challenge

Groups opposed to the military’s homosexual ban are exploring whether to revive court challenges to the law, basing new actions on the Supreme Court’s June 26 sodomy ruling.

“It’s not definite, but I would say it is an 80 percent possibility that we will” file a lawsuit on behalf of service members discharged because they are homosexual, says C. Dixon Osburn, director of the Servicemembers Legal Defense Network.

The group helps those targeted under the exclusion policy, known as “don’t ask, don’t tell.” It also assisted homosexual rights groups in unsuccessful legal challenges in the 1990s.

As homosexual rights advocates plot strategy, pro-military groups are gearing up for a renewed fight. The Pentagon is studying the ruling as well. The Supreme Court struck down the Texas law that criminalized homosexual sodomy, saying the statute violated privacy rights.

“It certainly could embolden the gay groups to go after the law again,” says Elaine Donnelly, head of the Center for Military Readiness. “The case could be made that under this new principle the law should be considered unconstitutional.”

William Woodruff, a professor at Campbell University School of Law in North Carolina and a retired Army colonel, says: “I’m sure the ruling will be used to try to overturn section 654 [the homosexual-exclusion law]. But I’m not sure it’s a winner.”

The same two groups that brought legal suits in the 1990s — the American Civil Liberties Union, and Lambda Legal Defense and Education Fund — are studying the Lawrence v. Texas case to make new arguments.

The Texas decision, Mr. Osburn says, “changes the landscape significantly.”

“Now, whether it’s enough to reverse opinion on challenges to the gay ban or not remains an open question.” He says new lawsuits are most likely to argue that the Supreme Court’s defense of privacy should also apply to consenting adults in the military.

The U.S. armed forces, which operate under their own criminal laws as defined by the Uniformed Code of Military Justice, ban sodomy. A separate UCMJ section enacted in 1993 and signed by President Clinton excludes homosexuals from military service.

The Clinton administration drafted the don’t ask, don’t tell policy in 1994. It allows homosexuals to serve as long as they keep their sexuality private. The 1993 law reinforced a homosexual ban that existed for years. Congress enacted the prohibition after Mr. Clinton moved in his first months in office to lift the ban by decree.

There is a tried-and-true defense if homosexual advocates file lawsuits, proponents of the ban say.

Mr. Woodruff, a lawyer during a 22-year military career, and Mrs. Donnelly point out that courts have for years given the military deference to make special rules it needs to maintain what it calls “good order and discipline.” In fact, legal challenges to the 1993 law ended in the late 1990s, after eight court challenges from homosexual rights groups failed. Federal courts of appeals from Virginia to California backed the military’s right to regulate sexuality in the ranks. The Supreme Court refused to hear petitions filed by homosexual advocacy groups in 1998. The ruling seemed to have settled the argument.

Al Gore revived the issue during the 2000 presidential campaign, promising homosexuals he would appoint generals and admirals to the Joint Chiefs of Staff only if they agreed to open the ranks to homosexuals. Now the Supreme Court may have opened the door for a new challenge.

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