The militaryÂ's anti-gay policy of "DonÂ't Ask, DonÂ't Tell" is taking new twists with the investigation of Steve May, a lieutenant in the Army Reserve. It is based in part upon what he said at an Arizona state legislature committee hearing in February. The kicker to this tale is that May is no ordinary citizen, heÂ's the State Representative from east Phoenix.
The committee was debating an anti-gay bill that would have barred local governments from paying for health insurance benefits extended to the domestic partners of their employees. It was championed by Karen S. Johnson, a rabidly homophobic Republican member of the legislature. She has condemned homosexuals as immoral. May has called her an ignorant bigot.
May, a freshman Republican, had planned to sit quietly, but the misrepresentation became too much for him to stomach. He rose to speak, "When you attack my family and you steal my freedom, I will not sit quietly in my office. This Legislature takes my gay tax dollars, and my gay tax dollars spend the same as your straight tax dollars. If youÂ're not going to treat me fairly, donÂ't take my money."
The contentious issue played prominently in the Arizona media, with MayÂ's comments front and center. The legislature eventually voted down the anti-gay measure.
May was in the inactive Reserve when all of this transpired. He was not attending weekend training sessions but he was subject to a call up. That call came later in February when bombs started dropping on Kosovo. He was ordered to the active Reserve and began reporting for monthly training duty.
The military would have had to have been deaf, dumb, and blind not to have known that May was gay. Though they possibly could have missed the lower key media coverage of the fact during his two previous campaigns for office. Once again the "wartime" needs of the service allowed gays to serve when it was convenient for the military.
But the end of hostilities brought a different tune. On Aug. 7 the Army opened an investigation into whether or not May is gay and should be discharged under DADT.
RELUCTANT ACTIVIST
Steve May could be the young Republican poster boy were it not for his sexual orientation. Clean-cut and earnest, he was raised a Mormon, became an Eagle Scout, served two years in the Army and in the Reserves he is second in command of a battalion of 200 soldiers. He modernized the family small business, importing and wholesaling herbal tea. HeÂ's been "married" for four years to Paul Quinn. He lost his first race for the legislature but won last fall and represents the neighborhood where he grew up. ThatÂ's a lot to cram into the resume of a 27-year-old.
May says he would like to devote his energies to things like improving education, reducing taxes, and fostering economic development. While he has been open about his sexual identity for several years, he in no way sees himself as a gay activist. So he is frustrated by the vortex of bigotry and fate that keeps drawing him into the limelight of gay issues.
He argues that he didnÂ't violate DADT because he never discussed being gay while on active duty. Stacey Sobel is an attorney with the Servicemembers Legal Defense Network ( SLDN ) and is advising May. She doesnÂ't think that will hold water¯DADT "has been applied very broadly in the past."
At an Aug. 27 news conference in Manhattan, cosponsored by Log Cabin Republicans, SLDN, and the Gay and Lesbian Victory Fund, May expressed his continued willingness to fulfill his military commitment. He called for an end to the failed Pentagon policy.
"At a time when recruiting and retention is becoming a serious problem, and some members of Congress are discussing a reinstatement of the draft, how much longer will we degrade our military readiness by discharging competent, qualified, trained men and women? ... This policy must come to an end."
THE PLOT THICKENS
Sobel believes that May is the only elected official to have been investigated under DADT. He is also the only openly gay Republican state legislator. Is this pure coincidence? Or could there be partisan political motivation behind the action?
About the same time the Army decided to open its investigation into May, the National Stonewall Democratic Federation released a briefing paper attacking Republican presidential frontrunner George W. Bush for his positions on gay issues. The Democratic National Committee released a similar paper on "fairness" issues. Both groups have very strong ties to the flailing Gore campaign and fear the erosion of support for the candidate within the gay community.
Many political observers see MayÂ's relatively high political profile and his strong defense of the gay community as one of the most pro-gay symbols the Republican Party has to offer. Could someone want to tarnish this rising star? Plausible scenarios can be scripted for villains from both the left and the right.
But regardless of how and why the investigation of May was begun, it may have opened a PandoraÂ's box of new legal pathways for challenging "DonÂ't Ask, DonÂ't Tell."
The Supreme Court has been willing to hem in First Amendment rights to free speech in the context of the military. It has consistently given the highest level of protection to political speech. In the CourtÂ's hierarchy, no speech is more political than that of an elected official performing his duties.
As Rep. Barry Wong, a Republican representing north central Phoenix, told the Arizona Republic, discharging May from the Army Reserve would violate his right to speak out as a legislator and his constituentsÂ' right to be represented by him. "The House and its lawyers should be defending him," Wong said.
That raises the fascinating specter of the Arizona legislature litigating against DADT, or MayÂ's constituents filing a class-action suit against DADT for violation of their rights to representation. These routes to challenging DADT would not have been dreamed of in even the wildest scenarios as recently as a month ago.
Evan Wolfson is an attorney with the Lambda Legal Defense and Education Fund, which has led many of the constitutional challenges to DADT. He said they are in contact with May and are exploring the legal options.
"MayÂ's story is a compelling example of how destructive and flawed this policy is, from top to bottom," Wolfson said. "The policy itself generates the stigma that they [ the Pentagon ] are now claiming that they want to fix." Stay tuned, it could be an interesting ride.
