Pentagon Policy on Gays Is Challenged (WaPo – AP)
The Pentagon’s “don’t ask, don’t tell” policy is being challenged by 12 gays who have been separated from the military because of their homosexuality. They planned to file a federal lawsuit today in Boston that would cite last year’s landmark Supreme Court ruling that overturned state laws making gay sex a crime as grounds for overturning the policy. Other courts have upheld the 11-year-old policy, but C. Dixon Osburn, executive director of Servicemembers Legal Defense Network, which is advising the plaintiffs, said those decisions predated the 2003 Supreme Court ruling in Lawrence v. Texas. “We think the gay ban can no longer survive constitutionally,” he said.
*** “Don’t ask, don’t tell,” adopted during the Clinton administration, allows gay men and lesbians to serve in the military if they keep quiet about their sexual orientation and abstain from homosexual activity. The Pentagon’s previous policy barred gays from military service.
The Supreme Court ruled last year that state laws making gay sex a crime were unconstitutional. That overturned a 1986 Supreme Court ruling that had upheld sodomy laws. Two other lawsuits challenging the policy have been filed since the high court’s reversal. One was brought in California by the Log Cabin Republicans, a political organization for gays. Osburn said that group could face a difficult fight because it was not bringing its suit on behalf of a specific injured party. He also noted that a federal appeals court in California has upheld “don’t ask, don’t tell,” but the appellate court in Boston has not ruled on the issue. The other suit was filed in the U.S. Court of Federal Claims, which generally deals with cases that involve money. That plaintiff, who was separated from the Army, is seeking to recover his pension and is challenging the ban in the process. Osburn said the court might rule narrowly on the financial claim and not on the constitutionality of the gay members policy.
It’s far from clear how the Court will rule. For one thing, Lawrence was decided without a majority opinion but instead by a plurality opinion written by Anthony Kennedy and joined by three justices and a concurrence by Sandra Day O’Connor. There is, therefore, no controlling rationale. Kennedy’s opinion was very narrowly focused on whether a state may imprison consenting adults for consensual sexual conduct (in this case, homosexual sodomy) in the privacy of their own homes. O’Connor’s concurrence was narrower still, saying that criminalizing sodomy was within state power so long as it was equally enforced against heterosexual sodomy.
Furthermore, none of the nine justices held that homosexual sodomy was a “fundamental right,” to which strict scrutiny applied when judging restrictions. Indeed, Kennedy–and thus all nine justices–argued that Texas lacked a “legitimate state interest” in criminalizing homosexual sodomy. By inference, then, if the United States government can demonstrate such an interest in support of the “don’t ask, don’t tell” policy, Lawrence would not be controlling.
