Wednesday, April 10, 1996
"Don’t ask, don’t tell" tested in Virginia court; ruling favors
status quoBy Patrick Marantal
Daily Bruin Staff
In the war over the constitutionality of the military’s "don’t
ask, don’t tell" policy, Lt. Paul Thomasson, a former naval officer
discharged for revealing his sexual orientation, lost the battle in
a court decision rendered last Friday.
In a 9-to-4 decision, the 4th Circuit U.S. Court of Appeals in
Virginia upheld the policy banning openly homosexual women and men
from serving in the United States military.
The case carries national implications, because it is the first
case involving the "don’t ask, don’t tell" policy to reach such a
high level in the federal judiciary.
In making Thomasson’s case, attorney Alan Moore argued that the
policy was both unconstitutional and unreasonable, given the young
officer’s outstanding record.
What makes Thomasson’s case different is that it added a First
Amendment free-speech claim on top of the Fifth and 14th Amendment
arguments which have been used before in such cases, that focus on
"due process" issues, and "equal protection" issues.
Additionally, Moore maintained that Thomasson remained an
outstanding naval officer after announcing his sexual orientation,
as shown by his subsequent performance evaluations.
Nonetheless, the court of appeals ruled against Thomasson,
upholding the Defense Department’s policy in Virginia, Maryland,
West Virginia, North Carolina and South Carolina. In rendering the
decision, the justices decided that President Clinton and other
elected officials who coined the "don’t ask, don’t tell" policy,
retain the right to set military policy  not the judicial
branch.
"It was appropriate for Congress to believe that a military
force should be as free as possible of sexual attachments and
pressures as it is prepared to do battle," wrote Chief Justice J.
Harvie Wilkonson III in the majority opinion.
Because the decision was made at the federal appeals courts
level, it does not apply across the nation to other similar cases,
such as Able vs. United States in New York, or the Meinhold case
here in California. Each of these cases remain in the federal
judicial system, waiting to be heard by the same level of court
that decided Thomasson’s case.
Opponents of the Defense Department policy were disappointed
with the ruling, but they didn’t see it as a major development.
"I don’t expect that it will necessarily have an effect," said
Jennifer Pizer, the managing editor of the Lambda Legal Defense and
Education Fund, Inc.’s western office. "The other cases have been
fully briefed, in particular the Able case," meaning that the
Thomasson case won’t bear on the decisions in those other
cases.
"Judges generally decide cases on the decision before them. It
is certainly possible that the judges will read things in the paper
and it may affect their decision-making," Pizer added. "It is very
unlikely, but it can effect people in different ways."
Despite the continuing legal battles which the Defense
Department’s policies have met, military officials stood by the
constitutionality of their policy excluding gays and lesbians from
the military.
"It seems to me there have been questions … about this policy,
from various gay rights and human rights groups," said spokesman
Kenneth Bacon in an earlier interview on the policy. "But it is our
policy, and we continue to enforce it, and we intend to continue to
enforce it until or unless it’s changed. But we believe this policy
is the right policy."
Currently, Thomasson and his lawyers are in the process of
deciding whether to seek a Supreme Court review. From there, the
law will effect the country, and not just the state.
"The issue hasn’t been settled yet. Even if one appeals court
has decided, there are two appeals and the Supreme Court," said
Charles Outcalt, director of the Lesbian, Gay and Bisexual Resource
Center. "(The decision) is not the last word or the definitive
word. The policy continues to be discriminatory and we hope the
other appeals courts recognize the discrimination."
With these future appeals in mind, attorneys are hoping that
Thomasson’s compelling story will aid in his legal arguments.
Before his discharge in June 1995, Thomasson served as special
assistant to Admiral Albert Konetzni, who was ironically in charge
of setting military personnel policy for the Navy  including
the enforcement of the "don’t ask, don’t tell" policy.
But after waiting for years in silence, Thomasson felt he could
not serve in the Navy with good conscience, Moore added.
"Lt. Thomasson felt that his sexual orientation (posed) an
inconsistency to serving in the Navy and being asked in some
fashion to contribute to the implementation of the policy," said
Moore, with the firm Covington and Burling, which represented
Thomasson in the case.
After handing a letter to his commanding officer stating, "I am
gay," Thomasson was then served discharge papers by military
officials in concordance with the current military policy.
"He said, ‘I am gay,’ and on the basis of that statement he was
processed for discharge," Moore said.
Because Thomasson was a superlative officer who received
outstanding reviews and recommendations for promotions, his appeal
carefully combined constitutional challenges and the strength of
his record.