- The Washington Times - Monday, December 6, 2004

ASSOCIATED PRESS

The Pentagon’s “don’t ask, don’t tell” policy is being challenged by 12 homosexuals who have been separated from the military.

They planned to file a federal lawsuit today in Boston that would cite last year’s landmark Supreme Court ruling that overturned state laws making sodomy a crime as grounds for reversing the policy.

Other courts have upheld the 11-year-old policy, but C. Dixon Osburn, executive director of Servicemembers Legal Defense Network, which is advising the plaintiffs, said those decisions came prior to the 2003 Supreme Court ruling.

“We think the gay ban can no longer survive constitutionally,” he said.

Justin Peacock, a former Coast Guard boatswain’s mate from Knoxville, Tenn., who is among the plaintiffs in the planned U.S. District Court lawsuit, was kicked out of the service after someone reported that he was seen holding hands with another man.

“I would love to rejoin, but even if I don’t get back in at least I could say I tried to get the policy changed,” Mr. Peacock said.

Lt. Col. Joe Richard, a Pentagon spokesman, said officials have not seen the lawsuit and therefore could not comment on it.

The so-called “don’t ask, don’t tell” policy allows homosexuals to serve in the military as long as they keep their sexual orientation private. It was a compromise reached during the Clinton administration, after President Clinton had proposed allowing open homosexuals to serve. The Pentagon’s previous policy barred homosexuals from military service.

The Supreme Court ruled last year that state laws making sodomy a crime were unconstitutional. That decision overturned an earlier Supreme Court ruling that had upheld such laws.

Two other lawsuits challenging the policy have been filed since the high court’s reversal.

One was brought in California by the Log Cabin Republicans. Mr. Osburn said that group could face a difficult fight because it was not bringing its suit on behalf of a specific injured party. He also noted that a federal appeals court in California has upheld “don’t ask, don’t tell,” but the appellate court for Boston has not ruled on the issue.

In the other suit, which was filed in the U.S. Court of Federal Claims, the plaintiff, who was separated from the Army, is seeking to recover his pension and is challenging the ban.

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