By Bob Roehr
The Servicemembers Legal Defense Network is challenging the antigay military policy known as Don’t Ask, Don’t Tell Dec. 6 with a lawsuit filed in federal court in Boston and a news conference in Washington, DC.
The dozen plaintiffs are from around the country and served anywhere from several months to more than fourteen years before being kicked out for being gay. The lawsuit charges that DATD 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 sixty-five 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 service members on active duty and more than a million GLBT veterans.”
Osburn bases his optimism for success upon the 2003 Lawrence decision by US 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 the 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.
This lawsuit, known as Cook v. Rumsfeld, is one of the first to revisit the issue of DADT since that ruling.
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.”
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 US Naval Academy in Annapolis and as a weapons officer aboard ship. Her commander fought for her retention when Kopfstein was under investigation for being a lesbian, but the investigators paid little heed.
Dr. Monica Hill requested a delay in reporting for duty in order to care for her terminally ill partner, Terri 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, DC] helping with the casualties from the attacks.”
Hill’s request resulted in a long and humiliating interrogation and eventual termination from the Air Force. The military later sought recoupment of the money they had paid toward Hill’s medical education. That process is ongoing.
Stuart Delery is an attorney with the firm of Wilmer Cutler Pickering Hale and Dorr, which has taken on the case on a pro bono basis.
The lawsuit aggressively challenges the premise that DADT poses an unacceptable risk to military morale, good order, discipline, and unit cohesion. It 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 on the subject.
Many U.S. allies have begun to allow gays and lesbians to serve openly in the eleven years since DADT was adopted and that experience further undercuts the congressional findings.
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 in the military. 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. “The military has continued difficulty in recruiting and retaining skilled people. Gays and lesbians have demonstrated that they are capable of serving and should not be denied that opportunity.”