Monday, July 7, 2003

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.

“We’re trying to figure out how the decision will affect the military policy,” says Paul Cates, director of public education for the Lesbian and Gay Rights Project in the American Civil Liberties Union. “We’re studying the decision.”

Air Force Maj. Michael Shavers, a Pentagon spokesman, says the Defense Department’s general counsel is examining the Supreme Court ruling to see whether it affects the sodomy or homosexual laws. “It’s a little premature to say there would be any impact at this point,” he says.

Mrs. Donnelly says there are three key reasons appeals courts will uphold the ban, even with the Lawrence decision in place. Courts have for years allowed the Pentagon to make rules, unacceptable in civilian law, to instill discipline. An example is the law prohibiting officers from having romantic relationships with those of lower rank.

Mrs. Donnelly notes that there is no right to privacy in the military, as the Supreme Court decreed there is for civilians. Because the law applies to both sexes, in her view equal-protection arguments view would not be successful.

On this point, the law states, “The potential for involvement of the armed forces in actual combat routinely make it necessary for members of the armed forces involuntarily to accept living conditions and working conditions that are often spartan, primitive and characterized by forced intimacy with little or no privacy.” Homosexual conduct creates “an unacceptable risk to the armed forces’ high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability.”

“I feel very confident about the law,” Mrs. Donnelly says. She urges President Bush to discard the Clinton don’t ask, don’t tell regulations because, she says, they differ from the strict homosexual-exclusion law.

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