Pictured Dr. Monica Hill and Sharra Greer, Director of Law and Policy, at Monday's news conference. Dr. Hill was forced to choose between her career and caring for her terminally ill partner. Plaintiff Jen Kopfstein & SLDN Staff. C. Dixon Osburn, Executive Director. Photos by Bob Roehr
The Servicemembers Legal Defense Network ( SLDN ) launched its promised challenge to the antigay military policy known as 'Don't Ask, Don't Tell' ( DADT ) Dec. 6 with a lawsuit filed in federal court in Boston and a news conference in Washington, D.C.
The dozen plaintiffs are from around the country and served anywhere from several months to more than 14 years before being kicked out for being gay. The lawsuit charges that DADT violates their rights under the First, Fourth, Fifth, and Ninth Amendments to the Constitution. All are seeking to be reinstated in the military.
SLDN executive director C. Dixon Osburn said, 'They have all served during the war on terrorism, three in direct support of operations in the Middle East. Together, they have served more than 65 years in the armed forces. Among them, they have earned more than five dozen commendations, medals, and awards.'
They represent more than 65,000 gay and lesbian servicemembers on active duty and more than a million GLBT veterans. 'We hope to end, once and for all, the ban on gays in the military ... . t is unconstitutional and contrary to our national security interests.'
Osburn bases his optimism for success upon the 2003 Lawrence decision by U.S. Supreme Court that threw out state sodomy laws. That opinion 'declared that gays and lesbians have a fundamental right to privacy, free from interference from our government.'
Several of the earlier adverse decisions affirming the constitutionality of DADT were based in part upon the 1986 Bowers V. Hardwick decision by the Court, which upheld state sodomy laws.
But the Lawrence decision explicitly reversed that earlier precedent stating; 'Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.'
This lawsuit, known as Cook v. Rumsfeld, is one of the first to revisit the issue of DADT in light of that legal underpinning being knocked down.
Sharra E. Greer, SLDN's legal and policy director, said, 'There is no other law quite like DADT. It is the only law in the history of our nation that requires the firing of an employee—from our nation's largest employer—simply because they are lesbian, gay, or bisexual.'
'Servicemembers are muzzled in violation of their first amendment rights. They are denied due process; they are denied equal protection of the law. They are forced to serve as second-class citizens and denied the opportunity to serve their country for no good reason at all.'
'It is this law, and not the lesbians, gay men, and bisexuals who serve their country that undermine good order, discipline, unit cohesion, and morale. There can be no doubt that don't ask, don't tell is blatantly unconstitutional,' she said.
Two of the plaintiffs participated in the news conference.
Lieutenant jg Jen Kopfstein joined the Navy in 1995, winning honors as a midshipman at the U.S. Naval Academy in Annapolis and as a weapons officer aboard ship. She told the story of her grandfather who fought in the Battle of the Bulge during WWII and of being on a warship that left port on 9/11 not knowing if the country would be under further attack. 'I am his blood, and I was ready and willing to fight for my country in time of crisis.'
Her commander fought for her retention when Kopfstein was under investigation for being a lesbian, but the investigators paid little heed.
Dr. Monica Hill was 'forced to choose between serving my country as an Air Force physician and caring for my terminally ill partner, Terri Cason.' She requested a delay in reporting for duty in order to care for Cason. 'I watched Terri die in her hospital room as the World Trade Center towers fell and the Pentagon burned, and I never felt more helpless. I could not stop the cancer from taking Terri, nor was I at Andrews [ Air Force Base near Washington, D.C. ] helping with the casualties from the attacks.'
Hill's request resulted in 'a long and humiliating interrogation' and eventual termination. The military sought recoupment, or repayment the money they had paid toward Hill's medical education. That process is ongoing.
'Last month, 135 servicemen and women were killed in Iraq. No one can ever know how my presence as a physician could have altered the outcome of those casualties,' Hill said.
Stuart Delery is an attorney with the prestigious firm of Wilmer Cutler Pickering Hale and Dorr, which has taken on the case on a pro bono basis. In 1954, the firm defended the rights of servicemembers under scurrilous attacks from Sen. Joseph McCarthy.
The lawsuit reads in part, 'There is no credible evidence that the presence of plaintiffs and other gay, lesbian, and bisexual service members in the military has hurt military effectiveness. [ DADT ] lacks any rational, important, or compelling basis, and serves no legitimate government or military interest.'
It takes particular aim at the congressional 'findings' that asserted antigay myths, saying that those conclusions did not flow from the very reports that the Pentagon itself had commissioned. The courts traditionally give great deference to Congress and the military on matters of national defense. 'We want to take [ those findings ] head on,' said Osburn.
Many of the U.S.'s allies have begun to allow gays and lesbians to serve openly in the 11 years since DADT was adopted and that experience further undercuts the congressional findings.
Greer said they decided to file suit in Massachusetts because one of the plaintiffs resides there and the First Circuit has yet to consider the policy of DADT. She said that the gay marriage decision in the state was under state law and did not influence their choice of venue on this matter, which is being contested under federal law.
Osburn said this lawsuit differs from the one filed by Log Cabin Republicans in Los Angeles in October. That suit was filed on behalf of unnamed members of Log Cabin who continue to serve. As an 'associational' lawsuit, it faces an additional hurdle in gaining the attention of the court.
Osburn believes that filing the suit while the country is engaged in a war on terrorism 'is exactly the right time to do this.' The military has continued difficulty in recruiting and retaining skilled people. Gays and lesbians have demonstrated they are capable of serving and should not be denied.
Reinforcing the argument, a lawsuit filed that same day in Washington, D.C., by eight National Guardsmen, is challenging the Pentagon's 'stop-loss' policy. Under the policy the military requires soldiers stay with their units if they are deployed overseas, even if they have completed their terms of enlistment. It says the policy enhances unit cohesion. The soldiers say it violates the contract that they signed with the government when they enlisted. x
