Gays Bring "Don't Ask, Don't Tell" Lawsuit

by William Fisher

(IPS) NEW YORK -- Twelve gays and lesbians discharged from the military because of their sexual orientation are suing the U.S. government in an effort to overturn the "don't ask, don't tell" policy that bars open homosexuals from serving.

The six men and six women are also asking to be reinstated in the military. All were discharged after their sexual orientations became known to their superiors. The plaintiffs represent all branches of the armed services except the Marines.

Lawyers for the Bush administration asked U.S. District Judge George A. O'Toole Jr. to dismiss the case, known as Cook vs. Rumsfeld, arguing that "courts should not second-guess congressional judgment."

The Boston judge did not rule immediately, and did not indicate when he would decide whether to accept or reject the government's request.

The "don't ask, don't tell" policy, the first executive order signed by then-President Bill Clinton in 1992 and adopted by Congress a year later, says that military personnel may not inquire about the sexual orientation of service members. But those who acknowledge they are gay or lesbian must be discharged.

Nearly 10,000 members of the military have been dismissed since the policy was introduced.

"You cannot re-litigate questions that were reasonably reviewed by the legislative branch," said Assistant U.S. Atty. Mark Quinlivan. The military's ban on open homosexuality, he argued, helps to maintain cohesion in military units by "reducing sexual tensions and promoting personal privacy."

But plaintiffs' attorney Stuart Delery argued that "don't ask, don't tell" violated the veterans' rights to free speech, privacy and equal protection under the law. The policy is biased, Delery said, and has not been shown to produce cohesion in military units.

Six previous lawsuits challenging the "don't ask, don't tell" policy have been unsuccessful. Two others are pending, including a case called Log Cabin Republicans vs. Bush, filed last fall in Los Angeles.

But the Boston case is the first to base its arguments on Lawrence vs. Texas, a 2003 Supreme Court decision that struck down state laws against sodomy.

"Lawrence changed the landscape," said C. Dixon Osburn, executive director of the Servicemembers Legal Defense Network, which filed the case on behalf of the 12 gay and lesbian veterans.

Osburn said that an estimated 65,000 gays and lesbians were serving in the U.S. military. He said there were a million gay and lesbian veterans.

Dismissing gay and lesbian service members, he said, reduces military ranks "at a time when the military is not meeting its recruiting goals."

Osburn said his organization was prepared to take its fight to the Supreme Court. The high court has never heard a challenge to the military's policy on gays and lesbians.

Megan Dresch, 22, was the only one of the plaintiffs to attend the Boston hearing. She joined the Army in 2001 and was discharged a year later after she told a superior officer she was a lesbian.

According to the Associated Press, Dresch said she was feeling "stressed" while serving with the Army's 230th Military Police Company in Germany. When she told her sergeant that she wanted to see a chaplain, he asked what the problem was, Dresch said. She said another member of the company interjected, and said the problem was that she was gay.

"He asked if that was true, and I said yes," Dresch said. "I have never been big on lying, so I told the truth. I figured the discharge was coming. But I was disappointed. I really loved being in the military."

Dresch, who is currently studying automotive mechanics in Phoenix, said she saw the Army as more than a career. "It was my life at that point," she said, adding that her unit is in Iraq, and she wished she could be there too.

"Without a doubt I would go back into the Army," Dresch said. "This is my country, and I want to serve. I want to go back and fight for the freedoms that I believe in."

According to the American Civil Liberties Union (ACLU), the "Don't Ask, Don't Tell" policy is an "unconstitutional violation of the service members' free speech rights and a denial of the equal protection clause of the Constitution."

Rose Saxe, ACLU staff attorney with the organization's Lesbian and Gay Rights Project, told IPS, "There is no rational basis for the government's policy."

Meanwhile, interest in a new book about lesbians in the military is rising. "Secret Service: Untold Stories of Lesbians in the Military" is a compilation of true stories, as told by lesbians serving in the four branches of the armed service. Its author is Zsa Zsa Gershick, a lesbian who conducted and published the interviews, served in the U.S. Army Reserve from 1978 to 1983.

In an appearance on C-Span, the public service television network funded by U.S. cable companies, Gershick charged that the "don't ask, don't tell" policy is unworkable and "based on prejudice."

She recounted the experiences of some of the military members whose stories are presented in her book, contending that "in a field hospital in Iraq, a wounded soldier doesn't give a damn about the sexual orientation of the person saving his or her life."

There is zero evidence, she said, that the presence of gay men and women in the military has any negative effect whatever on unit cohesion or morale. The result of the Clinton policy, she added, is to "force people to live a lie."

Among the 10,000 gays discharged from the military, she said, are translators, linguists, and people with highly specialized -- and expensive -- training who the military now desperately needs. "Where are their replacements going to come from?" she asked.