DOD expected to seek dismissal of 'don't ask, don't tell' lawsuit
February 6, 2005
The Department of Defense is expected Monday to ask for dismissal of a lawsuit filed by 12 former servicemembers seeking to rejoin the military after being discharged under the Pentagon’s “don’t ask, don’t tell” policy.
The former military members filed the suit in December in the U.S. District Court for the District of Massachusetts, saying that the “don’t ask, don’t tell” policy is unconstitutional.
Derek Sparks, a former Navy petty officer first class, is one of the plaintiffs.
A veteran of military operations in the Middle East and Southwest Asia, Sparks was dismissed in 2002 after a superior said he saw Sparks engaging in sex acts with two other male sailors.
“Here I had over 14 years of service, and then all of a sudden I was unfit because of this,” said Sparks, of Seattle. “I wasn’t any different. I was the same person.”
“The military was saying they had new information about me, but I was the same person, the same sailor. It was pretty terrible,” he said.
The 11-year-old “don’t ask, don’t tell” policy has been challenged in court five times before and has always been upheld, said Sharon Alexander, an attorney for the Servicemembers Legal Defense Network in Washington, D.C., and one of the attorneys for the gay plaintiffs in the Massachusetts suit.
The Massachusetts suit, however, is one of two challenging the policy in the wake of a 2003 Supreme Court ruling that the right of privacy in private, consensual adult relationships is a “full right” to be exercised “without the intervention of government."
A Pentagon spokesman said the Defense department does not plan to budge on the policy, which requires gay servicemembers to keep their lifestyle a secret while also forbidding their command from asking about it.
“It’s in the best interest for the cohesion of the force,” Army Lt. Col. Joseph Richard said. “We believed that then and we currently believe that now.”
When asked later to clarify what he meant, Richard, in an e-mailed response, repeated the original rationale behind the policy: “Living conditions especially in combat operations are often Spartan, primitive and characterized by forced intimacy with little or no privacy, thereby creating an environment that is cohesion-busting.”
Alexander, the attorney, put it another way: “The presumption is that straight people can’t deal with gay folks around them in the military.”
Sparks is joined in the Massachusetts lawsuit by one former sailor, five former soldiers, four former airmen and one ex-Coast Guardsman.
Among them is Stacy Vasquez, a former Army sergeant first class, who was discharged in August 2003.
Vasquez said that a spouse of one of her co-workers claimed she saw Vasquez kissing another woman at a nightclub. Vasquez said her commander asked her to write a statement stating she was a lesbian.
Vasquez, of Washington, D.C., said she wanted to stay in the Army until she retired. Now she wants to rejoin and demonstrate that, in her opinion, her fellow soldiers won’t judge her on her lifestyle but on her job performance.
“I served 12 years with heterosexual people and it worked just fine,” she said. “I don’t think it would be a problem.
“I want the [gay troops] who are serving in military right now to be able to serve without having to worry that they won’t have a career anymore when someone figures out they are gay,” Vasquez said.
The defendants are Defense Secretary Donald Rumsfeld, because it is his job to enforce “don’t ask, don’t tell” within the Army, Navy, Air Force and Marines; Tom Ridge, the former secretary of Homeland Security, which oversees the Coast Guard; and the United States of America, because Congress passed the 1993 law on which “don’t ask, don’t tell” based.
The other lawsuit challenging the policy’s constitutionality was filed in October by Log Cabin Republicans, a GOP gay-advocacy group, in U.S. District Court, Central District of California, Western Division. The Pentagon has asked that suit be dismissed because no plaintiffs were named in the suit — only the Log Cabin organization — and because previous rulings in that jurisdiction supported the policy.
The government has not yet responded to the Massachusetts suit.
Richard, the Pentagon spokesman, said that the military is simply upholding the law when it discharges servicemembers for acknowledging their homosexuality.
“No one is being drummed out of the military,” Richard said. “Our ... policy is very clear. We don’t hunt down anyone. If they declare their sexual preference, then we have no choice. That’s a choice they make if they declare [their] sexual preference.”
Sparks served aboard the USS Sacramento during Operation Desert Storm, when he won a Sailor of the Quarter award, and aboard the USS Bridge during Operation Enduring Freedom.
While aboard the USS Bridge, a master chief alleged that while spying through a peephole he saw Sparks and two other sailors committing homosexual acts. Sparks and the sailors repeatedly denied the allegations, but Sparks said he felt pressured by his command to admit his sexuality.
“A couple days [after the allegation], after I mulled it over in my mind, I got tired of lying and tired of hiding,” Sparks said. “Yes, eventually I wrote a statement of my sexuality.”
He was given a general discharge in April 2002.
“Don’t ask, don’t tell” started out as a 1992 campaign promise by presidential candidate Bill Clinton, who wanted homosexuals to be able to serve in the military without having to hide their sexual preference. The Pentagon had previously barred homosexuals from serving in the military.
Before it passed, the law was molded into its current state.
“[The law] started out with good intentions,” said Alexander, the gay plaintiffs’ attorney. “But it left us in a terrible mess.”
According to a study by the Urban Institute, based on the 2000 census, there are currently about 65,000 active-duty servicemembers and reservists who are gay, or about 2.8 percent of all military personnel.
Alexander said the law, which has caused more than 10,000 gays to leave the military, can only be changed by Congress or if a court finds it unconstitutional.
According to Richard, the Defense department believes that “don’t ask, don’t tell” is good for military readiness and discipline.
“We have made a determination that there are no circumstances that would require us to review, and there is no effort currently under way, to revisit “don’t ask don’t tell,’ ” Richard said.