Dec 10, 2004  |  By: JOE CREA  | COMMENTS     

In a ruling that could have major implications on the military’s ban on gay Americans serving openly, the U.S. Army Court of Criminal Appeals has overturned a guilty plea of a male soldier who engaged in consensual oral sodomy with a female civilian. The court cited the U.S. Supreme Court’s decision in Lawrence vs. Texas, which struck down state sodomy laws, in its ruling.

Members of the military who want to keep the “Don’t Ask, Don’t Tell” policy in place point to the Uniform Code of Military Justice’s ban on sodomy as one of their justifications. They have argued that the ban is based on conduct — homosexual acts prohibited by the UCMJ — and not the status of being gay.

The case — United States vs. Bullock — was one of 14 currently in the military criminal appeals process that involved a consensual sodomy conviction, according to the Servicemembers Legal Defense Network.

“In Lawrence, the Supreme Court took a clear and unmistakable view that government intrusion into private intimate relationships is unconstitutional,” said C. Dixon Osburn, Executive Director of SLDN. “That right to intimate privacy should extend to every American, both civilian and military.”

12 vets file lawsuit
The ruling may help a legal challenge SLDN mounted this week. Twelve gay men and women expelled from the military under the “Don’t Ask, Don’t Tell” policy filed a lawsuit in federal court this week challenging the 11-year-old ban and seeking re-instatement to the U.S. armed forces.

Citing the Supreme Court’s 2003 ruling in Lawrence vs. Texas invalidating U.S. sodomy laws, the lawsuit — Cook vs. Rumsfeld — challenges the prohibition on openly gay service members on privacy, due process, equal protection and free speech grounds.

While previous lawsuits challenging the military’s policy have upheld the ban put in place by the Clinton administration and Congress, those decisions were issued before last year’s historic Supreme Court decision, which for the first time acknowledged the privacy and dignity of gay and lesbian Americans, Osburn said. SLDN is advising the plaintiffs.

“The Supreme Court ruling asserts our right to exist and be and goes to the heart of ‘Don’t Ask, Don’t Tell,’” Osburn said. “Under ‘Don’t Ask, Don’t Tell,’ service members can’t even tell their mom or chaplain that they are gay or bisexual without risking discharge.”

When asked if a court is likely to overturn the military’s ban on openly gay service members while the Pentagon is engaged in military operations in Iraq and Afghanistan, Osburn said that filing the lawsuit now was appropriate adding that all plaintiffs involved have fought in President Bush’s “war on terrorism.”

Osburn said the government has 60 days to respond to the lawsuit. He expects a trial to begin early next spring.

A spokesperson for the Department of Defense did not respond to Blade inquiries seeking comment on the lawsuit.

Log Cabin also files suit
The SLDN lawsuit is not the only court case challenging the military’s ban on gay service members. Without consulting SLDN or other gay groups, the Log Cabin Republicans filed a lawsuit in California challenging “Don’t Ask, Don’t Tell.”

While Osburn said it remains a “mystery” to him why Log Cabin kept its lawsuit “a complete secret,” his group will continue to look at their case to determine how they might assist.

He added, however, that the gay Republican group’s lawsuit has some “difficult hurdles” to overcome because unlike the SLDN suit, Log Cabin is bringing its challenge on behalf of the group and not on behalf of a specific injured party.

Additionally, the Log Cabin suit was filed in the jurisdiction of the Ninth Circuit Court of Appeals, which in previous rulings has upheld “Don’t Ask, Don’t Tell.”

Tobias Barrington Wolff, a law professor at University of California, Davis who consulted with SLDN before the group filed its lawsuit, said the First Court of Appeals, where the SLDN lawsuit was filed, has not ever ruled on the constitutionality of “Don’t Ask, Don’t Tell.”

It becomes a difficult task for the Log Cabin suit, he argued, since it will be hard to get the Ninth Circuit to reverse its previous ruling.

Log Cabin Republicans attorney C. Martin Meekins, whose Los Angeles law firm White & Case filed the suit in October, expressed confidence about the Log Cabin ...