Military’s policies about homosexuality debated
Opponents of ‘don’t ask, don’t tell’ cite unconstitutional
basis
By Patrick Marantal
Daily Bruin Contributor
As openly bisexual cadet Huong Nguyen awaits resolution on her
enrollment status in the Army, national court battles continue over
the constitutionality of the military’s "don’t ask, don’t tell"
policy on homosexuals.
While none of these cases have reached the Supreme Court, lower
courts have ruled that the policy is unconstitutional, based on
sections of the First, Fifth and 14th Amendments, legal experts
said.
"There is no rational basis; it (the policy) cannot stand up to
constitutional rights," said Jennifer Pizer, the managing attorney
of the Lambda Legal Defense and Education Fund, Inc.’s western
office.
Pizer cited a case involving six gay and lesbian officers who
brought their case to court to challenge the military’s policy on
homosexuals, officially known as the National Defense Authorization
Act.
In this case, known as Able v. United States, U.S. District
Judge Eugene Nickerson ruled that discharging a service member
based on their sexuality violated the First Amendment. Nickerson
further claimed that the "don’t ask, don’t tell" policy violates
the equal protection component of the Fifth Amendment. But, the
federal government appealed, putting the case up for review by the
Supreme Court.
Proponents of the military’s policy have argued that the
presence of openly gay soldiers breaks down morale and unit
cohesion. Yet, Pizer denounced the argument and cited a study by
the Department of Defense which reported that gay and lesbian
soldiers make exemplary officers.
"Their argument is (that) if soldiers are serving with gay
officers then that affects unit cohesion," Pizer said. "The truth
is that the gay soldiers have been serving and it has not affected
cohesion."
Previous court decisions based their policy on a theory called
"irrational prejudice," which has since been ruled illegal.
The "irrational prejudice" precedent was set by Cleburne v.
Cleburne Living Center, a case that involved housing for mentally
retarded individuals. The city of Cleburne intended to put a
facility for the mentally retarded in a neighborhood whose
residents objected to the move.
The residents did not want mentally retarded people living near
them, but the Supreme Court decided that the government cannot take
action against people based on the fears of other people, Pizer
said.
Opponents of the "don’t ask, don’t tell" policy cited this
decision in their arguments for Able v. United States.
While the Able case was in a U.S. appeals court, the plantiff’s
lawyers wrote that "subjective discomfort with other people because
they are different from oneself … cannot legitimately justify
government action."
"The legal system is just now trying to understand and catch up
dealing with gay people," Pizer said. "With sexual orientation, law
is still developing but the principal is established. The analysis
is the same."
Campus legal experts agreed.
"The 14th Amendment (states) that no state can deny equal
protection. The Fifth Amendment (states) that the federal
government cannot prosecute without due process," said UCLA law
Professor John Varat. "Equal protection can be read into it. (The
policy leads to) constitutionally unequal treatment."
Some felt that this unequal treatment hearkened back to previous
issues of race discrimination within Army ranks.
"(It’s) very much the same situation as integration. Plenty of
white service men resisted," Pizer said. "But troops were
integrated and it’s fine now.
"Before integration took place, lots thought (that) the military
would be compromised. But history proved it wrong," Pizer
added.
MAX ANDREWS
Bisexual Army cadet Huong Nguyen
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