The first legal challenge to the antigay military policy known as 'Don't Ask, Don't Tell' ( DADT ) that uses the Lawrence decision in which the Supreme Court struck down all remaining state sodomy laws was filed July 7. It is Loomis v USA.
Lt. Colonel Loren Stephen Loomis was just eight days shy of retiring with full pension and benefits when the Army kicked him out for being gay. The highly decorated 20-year veteran had been wounded in Vietnam. The administrative proceedings that led to the discharge were a nightmare of prejudice, discrimination, and violation of basic legal principles.
The story began Aug. 3, 1996 when a troubled PFC at Fort Hood, Texas, set fire to Loomis' house off base. He was trying to destroy a video of him engaging in sex with Loomis. The soldier had an ongoing affair with Loomis and had readily agreed to the sex and the taping. He later had second thoughts and feared the tape might be used against him.
The tape survived the fire and was picked up by the local police during their investigation of the arson. They shared it with military police, who used it to prosecute Loomis under DADT.
This evidence was obtained and forwarded to the military without a search warrant and without the consent of Loomis. This was despite advice from the district attorney that the police must obtain permission or a warrant and that the tape could not be provided to the military without a subpoena ordering its release.
The three colonels constituting the Board of Inquiry all expressed strong antigay feelings when questioned by Loomis' attorney. So it was no surprise when they recommended his discharge under DADT. Internal review by the Army saw nothing wrong with their intense homophobia; it thought the proceedings were fair.
All of Loomis' petitions for early retirement were rejected and he was given a dishonorable discharge on July 14, 1997, just eight days prior to completing 20 years of service. The conditions of his discharge meant the loss of pension and other benefits in excess of a million dollars.
Loomis' suit was filed in the U.S. Court of Federal Claims in Washington, D.C., just days before the statute of limitations to do so was set to expire. Attorney David Sheldon said they used the Lawrence decision to bolster an already strong case.
In addition to citing numerous procedural violations in deciding the case, it also challenges 'the 'sodomy' provision of Article 125' of the Universal Code of Military Justice ( UCMJ ) as violating Loomis' 'constitutional right to liberty ... to engage in private, consensual acts of oral and anal sex with persons of the same gender,' as outlined in the Lawrence decision.
And it charges that DADT violates both the right to privacy and equal protection by 'maintaining a special classification system that mandates discharge for homosexual and bisexual individuals, but not for heterosexual individuals who engage in the same or similar acts.'
It seeks to have these provisions ruled unconstitutional, reverse the dishonorable discharge, restore full retirement benefits, and pay legal fees.
The case has been assigned to Judge Eric Bruggink. The right-wing Rev. Rob Schenck, prominent in a widely distributed photo of those lamenting the Lawrence decision in front of the Supreme Court, has described Bruggink as 'one of the few outspoken Christians in the federal judiciary' and a guest at a 2001 breakfast meeting. At that meeting, Bruggink reportedly raised alarm about a judiciary separated from any notion of a higher moral authority than itself.
Sheldon believes that the procedural errors were so grave that the court could rule for his client on those grounds alone. He acknowledged that, courts generally prefer to rule on more limited and factual matters rather than on sweeping constitutional grounds. It is possible that the court will not even consider the issues raised in the Lawrence ruling in deciding this case. Sheldon has learned to be hesitant in making such predictions.
'All too often, the Army denies those who have sacrificed in its service the basic protection of law,' Loomis said in a statement released from his home in New Mexico. 'If the military will pursue a decorated officer and combat veteran such as myself, one can only imagine the hurdles faced by young service men and women who find themselves in the Catch-22 of 'Don't Ask, Don't Tell.''
'Under DADT, 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,' said C. Dixon Osburn, executive director of the Servicemembers Legal Defense Network. It represented Loomis during the initial discharge proceedings.
Osburn applauded the Loomis suit as the first of many that are likely to be filed using the Lawrence decision.
Activist Frank Kameny, who has worked on the military issue for decades, says, 'To the extent possible we should try to get the Lawrence decision firmly extended to Article 125 of the UCMJ-our sole remaining sodomy law, if, in fact, it is considered to be still actually remaining-and get that struck down for consensual acts.' Once that happens, 'We will be in a far stronger position for tackling DADT and the general military gay ban.'
Rep. Barney Frank, D-Mass., introduced a bill on July 9 to amend the UCMJ to allow for consensual sexual activity between adults. He called it he 'Anti-Hypocrisy Act of 2003' ( H.R. 2676 ) .
It is more limited than UCMJ reform suggested in June 2001 by the Cox Commission, a blue ribbon panel of experts in military law. That group recommended repealing the rape and sodomy provisions, replacing them with language such as that found in the Model Penal Code.
Ironically, gays and lesbians seldom are prosecuted under this provision because it is more difficult to prove sexual acts than it is to show sexual orientation under 'Don't Ask, Don't Tell' as it is currently enforced. Some 90 percent of gay discharges are through administrative procedures rather than court-martials under the UCMJ.
But continued existence of the prohibition served to underpin a multitude of discrimination against gays in the military just as it did within the civilian context prior to the Lawrence decision.
