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Post-Lawrence, Military Ban Upheld

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First civil court challenge to Don’t Ask, Don’t Tell after sodomy laws thrown out fails

BY ARTHUR S. LEONARD 

The U.S. Court of Federal Claims, a special court that considers monetary claims against the U.S. government, has rejected the argument that the Don’t Ask, Don’t Tell policy barring openly gay or lesbian military service is unconstitutional in light of the Supreme Court’s 2003 Lawrence v. Texas decision striking down that state’s sodomy law.

Loomis joined the Army in 1967 and was commissioned an officer in 1969, completing a tour of duty in Vietnam, during which he was awarded the Purple Heart and the Bronze Star. He was released from active duty in 1972, but continued in the Army Reserve until he voluntarily returned to active status in 1983. Loomis was on active guard/reserve status in 1996 when the Army initiated discharge proceedings as a result of a suspicious fire at his house near Fort Hood in Texas.

A witness report of a “suspicious vehicle” seen near Loomis’ home led military police to apprehend a 19-year-old private first class, referred to in Bruggnink’s opinion simply as PFC. When PFC finally confessed, he claimed he set the fire to destroy incriminating pictures and videos of himself, which he knew that Loomis had in the house but had been unable to find when he broke in looking for them.

According to PFC, the previous year Loomis had talked him into posing for pictures and a video. Only later, PFC said, did he realize that he had put himself in a compromised position by allowing Loomis to take nude pictures of him. Loomis wrote to PFC a few times, but PFC did not answer, but was haunted by the existence of those pictures, and finally decided he had to retrieve them. He went to Loomis’ home in September 1995 to try to get the pictures, and said only then did he learn that Loomis was also in the military. PFC alleged that at that time he agreed to Loomis’ request for sex out of fear about what he might do with the pictures.

Still obsessing about the pictures nearly a year later, PFC said, he broke into Loomis’ house and eventually set it on fire. The local fire marshal retrieved Loomis’s video camera and it contained video showing him having sex with two men who appeared to be soldiers. The video was turned over to military investigators. Loomis was processed for discharge based on the testimony of PFC and the video. He asked to be allowed to retire, but was denied that opportunity and was discharged under other than honorable circumstances, the military prosecutor taking the position that he had coerced PFC into having nonconsensual sex.

Loomis appealed within the Army, and his discharge was upgraded to “General, Under Honorable Conditions,” apparently on the basis of revising the view of the sex with PFC and the other soldiers as consensual. The Army transferred Loomis to the retired reserve as a result, but the board upheld the denial of a pension for him.

In the wake of the Lawrence ruling that consensual private sex between adults is protected by the Constitution’s liberty guarantee under the Due Process Clause, Loomis filed a new civil lawsuit, holding that his consensual sexual behavior did not form a legitimate basis for his discharge and that he should receive a pension and have his military records revised.

Ruling first on a technical matter, Bruggink found that the Army had not properly handled Loomis’s request for retirement and must re-process that application. On the contention that the military proceedings were unfair because all the presiding officers had indicated that they disapproved of homosexuality and believed gays should be discharged, Bruggink found that Loomis never denied having sex with military personnel and that the court simply applied the mandated penalty, so that individual opinions were irrelevant to the outcome.

Bruggink also rejected Loomis’ argument that the videotape should not have been allowed in evidence since it had not been obtained through a constitutionally valid search. Whether the fire marshal took the tape in hopes of finding evidence of who the arsonist was, as he claimed, or to determine if Loomis had broken the sodomy statute, as Loomis alleged, Bruggink found that the exclusionary rule regarding improperly seized criminal evidence has been held not to apply to military discharge boards. In any event, Loomis had stipulated during his discharge proceeding to the contents of the videotape, so any evidentiary question was moot.

Most significantly, Bruggink rejected Loomis’s claim that the Don’t Ask policy violates both due process and equal protection guarantees in the Constitution. Loomis argued that gay people are singled out for different treatment from heterosexuals. Bruggink was not persuaded, and his finding falls within an ongoing debate regarding the interpretation of the Lawrence ruling.

Gay right advocates argue that Lawrence treated the right of adults to have sex, including gay sex, as a “fundamental right,” which would mean that the government would need a compelling reason to restrict it. Many conservative federal judges have rejected this interpretation, focusing instead on the Supreme Court’s statement that the Texas sodomy law was invalid because there was no legitimate state interest to support it, suggesting that any restriction on sodomy should be subjected to a less demanding type of judicial review, under which a law must merely demonstrate a rational, rather than compelling, basis. Adopting this standard, Bruggink found that the special circumstances of the military, which requires good order and morale, and the “findings” of Congress included in the statute authorizing Don’t Ask provide a rational basis for the discharge of gay personnel.

Bruggink found that the differential treatment of gay and straight sexual conduct is justified by the fact that sexual tension in the military environment is a morale problem. He noted in particular the ruling of the armed services appeals court in the Marcum case, decided in the wake of Lawrence, that found that while gay sexual conduct might be theoretically protected by the Constitution, that protection is not absolute. It can still be the basis for discipline or discharge if the circumstances showed that military policy concerns were implicated. Some military courts have begun to examine whether the conduct occurs on-base or off-base, whether both participants are in the military and, more importantly, whether they are of different rank. Bruggink pointed out that heterosexual sex between military personnel of different ranks, as was the case with Loomis, is also outlawed and can result in penalties.

Thus, this first post-Lawrence challenge to Don’t Ask, Don’t Tell in a non-military court has been unsuccessful at the trial level. Loomis, represented by Washington attorneys David P. Sheldon, Philip Sundel, and Raymond J. Toney, can pursue an appeal within the federal court system. Several other civil court challenges to the military policy are also pending.

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Updated 5:17 pm, July 20, 2018
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