Military Gay Ban Challenged in the Wake of SCOTUS Sodomy Ruling

Liberation Publication Breaking News ^ | July 7, 2003 | staff report

[ewing]

Citing the precedent set by the US Supreme Court ruling in the Texas sodomy case, a decorated Vietnam Combat Veteran filed suit late yesterday with the US Court of Federal Claims challenging the constitutionality of the 'don't ask, dont tell' policy.

The challenge filed by LTC Steve Loomis, who was ousted from the Army for being gay just 8 days prior to his 20 year retirement date in 1997, also challenges the federal anti sodomy statute covering the military.

The lawsuit is based on the recent US Supreme Court opinion in Lawrence v. Texas which declared that the Texas Sodomy Statute violated the Consitiution's guarantee of the right to privacy. Loomis suit seeks to reverse the discharge.

The challenge is the first of several likely to be filed in the wake of Lawrence according to the Servicemembers Legal Defense Network.

'Lawrence has a direct impact on the federal sodomy statute and the military's gay ban, said SLDN Executive Director C. Dixon Osbourne.

[AntiGuv]

Would you feel differently if Loomis was discharged for smoking grass? No one was hurt. Let's say he was alone when smoking.

I have no particular problem with Loomis having been discharged, in any event. As a general rule I support the current military policy regardings gays - except for the private conduct ban in this case. I have a severe problem with the popular zeitgeist that Lawrence will lead to all sorts of developments beyond the striking down of sodomy statutes.

As for the question of smoking grass, I think marijuana should be legalized, but I think marijuana laws should be enforced so long as they exist. Even in the event that it's legalized, the military is within its established rights to regulate its use by servicemembers.

Congress can and does enact different rules for the Armed Forces, just as the Consitution allows.

Yes, and those laws are what they are, not other than what they are. Either the law was followed, or it was not. Moreover, the Constitution does not hand Congress carte blanche in military enactments.

SCOTUS would make a terrible mistake micromanaging our nation's defense. The justices realize this and will not go there.

The justices may very well decide that the sodomy ban itself has no rational basis in the military's stated objectives, and that the military's objectives could be just as easily achieved without that particular provision. The justices may very well defer - military cases are extremely difficult to predict. The justices will not overturn the ban on openly gay servicemembers. At least, I would be utterly shocked if they did so.

[Michael.SF.]

I disagree completely. Keeping those photo's was harrasment and should not be tolerated by whoever did it.

I was not saying that he would not have been punished, indeed he would have been forced out. But, to deny him a pension after 20 years of service is harsh retribution for his actions.

I still believe that he was punished,in a more harsh manner, because he was gay.

[Steel Wolf]

There are many aspects of the UCMJ that fall outside the scope of the Constitution. Appealing against the UCMJ on those grounds alone is absurd.

A field grade officer taking nude pictures with subordinates and not giving them back when asked, at best, is a reprehensible violation of trust and authority, and is grounds for Conduct Unbecoming of an Officer. It doesn't sounds like the details would lead to an 'at best' scenario, however. The gory details are unimportatant, he doesn't stand a snowballs chance in Saudi Arabia in taking this to court.

[Chad Fairbanks]

That decision, which took effect about a week before Loomis would have been eligible to receive retirement benefits, requires him to wait until he is 60 to begin collecting his pension, officials said."

So he DOES get bennies, just not right away...

[Sabertooth]

I'm uncertain whether repeated insinuations that have been ruled to be slander by several courts are considered abusive at FR, but I'd be interested in the moderator's opinion.

Without taking a position on accuracy, when I read "gay blinders," I took that to mean a certain sort of tunnel vision with regard to gay issues, not an insinuation that you are gay and blind because you are gay. That's how it looked to me; anyway, I could be wrong.

[Steel Wolf]

That's the funny thing about the UCMJ, its very whim oriented. By whim, I mean 'Commanders discretion'. An offense that would get a bad conseling statement in one unit could bring loss of rank and pay in another identical unit across post. Commanders are given wide authority to mete out punishment as they feel appropriate to their unit. Same goes for officers among themselves. For the same offense, some get a slap on the wrist, others are sacrificed as examples.

[Chad Fairbanks]

See the post I was replying to in post #104 - he gets the retirement benefits, but just has to wait until he's 60... No one is denying him anything...</p>

[Sabertooth]

So he DOES get bennies, just not right away...

Yes, at least as of the date that article was posted, but that was September 3, 1997.

It looks like he's had at least one hearing since then (from the link at the unfortunately-numbered #69...

Loomis is preparing to take his protest to the Board for Correction of Military Records in Washington, D.C., because Secretary of the Army Togo West has refused to reverse the July 14 ruling at Fort Hood. That decision, which took effect about a week before Loomis would have been eligible to receive retirement benefits, requires him to wait until he is 60 to begin collecting his pension, officials said."

So, is it possible he could have lost his benefits at a subsequent hearing? It doesn't appear that they threw the book at him the first time out, and I'm not sure how that sort of thing might play out in military courts.

[George W. Bush]

To my knowledge, taking nude photos for whatever private purpose is not cause for discharge (unless the photographed individual is a minor).

He was fraternizing below his rank. He was sexually exploiting those in his command.

If he had an unblemished record, I would give him the pension and overlook the rest. Most of us would. But exploiting the recruits for porn is conduct unbecoming an officer. The officer placed both himself and the recruits in a position to be blackmailed or to cause a serious scandal to the military. Not to mention the detrimental effect on morale. It is unlikely that the officer's predilections were any secret from his subordinates. And perhaps promotions and light duty and such were given on the basis of doing anything the sodomite officer might request.

You tolerate these situations and you end up with the kind of military that Turkey was once infamous for, the kind that mothers won't let their sons join. Ask T. E. Lawrence about it...

This isn't the only case of its sort to come up with a sodomite officer exploiting his subordinates. Like the Scouts, the military has to draw a line and make it stick.

[AntiGuv]

In either case, my replies would have become far less civil upon the next repetition, so it seemed advisable to put a preemptive end to that. If I have any "blinders" in regards to gay issues, it's that I rigorously avoid personalizing the matter with reflexive homophobia in the course of my remarks. If I were discussing my personal feelings, I would note that I find homosexuals disturb my mental equilibrium & I do have a reflexive aversion to homosexuality. That's all fine and good, but the law is not based on my personal feelings. I am fairly hostile to arguments that seek to leverage themselves on irrational sentiments rather than principled grounds.

[Chad Fairbanks]

If he's going up against the BCMR, then what he is trying to do is get his Type of Discharge and RE Codes changed, so that he is eleigible for benefits right away - I say this because, based on my understanding, that is ALL the BCMR can do... They can't overturn a Court-martial conviction or anything like that AFAIK...

[Sabertooth]

That's all fine, though "homophobia" is a slur of its own.

[Sabertooth]

If he's going up against the BCMR...

I think that's already been settled and done. Remember, the article I linked was posted in '97. I haven't found anything that's more current, other than what's going on this week.

What Loomis is doing now is taking the case to US Court of Federal Claims, apparently on the basis of the SCOTUS ruling in Lawrence v. Texas.

[AntiGuv]

That's all fine, though "homophobia" is a slur of its own.

Not when applied to oneself, as in that instance. I have more than enough insight into my own personality to recognize my own considerable homophobic impulses for what they are.

[Chad Fairbanks]

Right, I understand that - however, what I am saying is that the avenue he took was to go to the BCMR. With the BCMR, there was no way to get his courtsmartial overturned, expunged, or anything like that - I just confirmed my initial understanding, which is that the BCMR can ONLY upgrade discharges.

By going the BCMR route, he was trying to get his discharge upgraded to Honorable, so that he would be eligible for benefits immediately. The BCMR cannot say "He was wrongly discharged, so let him back in." but they CAN, and have been know to, say "He was discharged unfairly, so let's change the type he received." That is all. They can really do no more than that.

There is also a time limit to going the BCMR route, which is something like 6-10 years - after that, it's SOL...

It appears (and I may be wrong) that his Discharge was reviews by the BCMR, and they determined that they should not upgrade or otherwise change the type of discharge he received. He most likely appealed, and was also shot down.

Now, he sees an opening - the Lawrence Case. THe only thing he can really sue for is the "correction" of his record, i.e. the discharge.

And if, somehow, he gets it changed through the courts (which in all hoensty I doubt they will interfere and his discharge will stay as it is), then he qualifies for the benefits NOW, instead of when he is 60...

[elfman2]

"But it's just the right to privacy..."

But in this case, military's men's right to privacy while camping, stripping and bathing conflicts with the gays' right to join. Easy decision. I doubt if the case will see the light of day.

[Sabertooth]

Not when applied to oneself, as in that instance.

Two observations... I inferred that in explaining your own avoidance of "homophobia" that you thought that another hadn't, in which case it wouldn't only apply to yourself. Perhaps I was mistaken.

Second, "homophobia" is a slur because it's not a legitimate term, it was invented as a pejorative, and remains so regardless of the target.

[Kevin Curry]

The military needs to back up on this one and give the guy his retirement.

You feel so sad for the rule-breaking pervert, why don't you pony up the cash and pay him his retirement?

He won't win. If Bawney Fwank and his bosom buddies couldn't pull off the change in discharge in 1997 when Monica was playing the Bent Willie piccolo in the Oval Office, Loomis won't get relief now either. He was booted for conduct unbecoming an officer--a far broader concept than the narrow issue of sodomy in a private residence. His misconduct involved enlisted men and he was a senior officer. He know the rules and flagrantly broke them, hoping no one would find out. This same behavior gets a half dozen or so senior officers booted every year, albeit involving women enlisted or junior officer members. He gambled and last. Stupid, stupid move. It isn't even a close call.

You wish it was a close call, because you ache to see homosexual perversion tolerated and embraced by the military. But even our buttinski SCOTUS superlegislators won't touch this one.

[Kevin Curry]

You feel so sad for the rule-breaking pervert, why don't you pony up the cash and pay him his retirement?

He won't win. If Bawney Fwank and his bosom buddies couldn't pull off the change in discharge in 1997 when Monica was playing the Bent Willie piccolo in the Oval Office, Loomis won't get relief now either. He was booted for conduct unbecoming an officer--a far broader concept than the narrow issue of sodomy in a private residence. His misconduct involved enlisted men and he was a senior officer. He knew the rules and flagrantly broke them, hoping no one would find out. This same behavior gets a half dozen or so senior officers booted every year, albeit involving women enlisted or junior officer members. He gambled and lost. Stupid, stupid move. It isn't even a close call.

You wish it was a close call, because you ache to see homosexual perversion tolerated and embraced by the military. But even our buttinski SCOTUS superlegislators won't touch this one.

[Chad Fairbanks]

From teh archives...

Army discharges decorated gay officer

July 27, 1997

DALLAS (CNN) -- The Army has dismissed a gay lieutenant colonel one week before he would have qualified for full retirement, saying he had engaged in conduct unbecoming an officer.

An Army board of inquiry concluded that 50-year-old Steve Loomis, a decorated 20-year veteran, had engaged in homosexual acts and used "force, coercion or intimidation."

Loomis learned of his "other than honorable" discharge last week. He claimed he was singled out and victimized because of his sexual orientation.

"In my case, it was private relations with another soldier, off-post, off-duty, not in my chain of command, and they say conduct unbecoming -- read that 'sodomy,'" Loomis said. "But how many single soldiers or married soldiers do exactly the same thing? And how many of them have it held against them?"

Loomis' attorney, David Sheldon, said some evidence used in the case had been improperly obtained after an arsonist torched the officer's home. Civilian authorities confiscated a videotape at the home and turned it over to the Army. That video showed Loomis participating in homosexual acts, Sheldon said.

NOTE: The Fire Marshall claims the tape was removed from a standing camera, in hopes it would provide clues to the arsonist... which is why it was turned over to the Army...

An Army spokesman said Loomis was not court-martialed because the case was not a criminal matter.

Loomis enlisted as a volunteer in 1967, at the height of the Vietnam War. He received two Bronze Stars, a Purple Heart and other honors.

He stayed in the reserve and returned to active duty in the 1980s.

Note: a friend just informed me that Loomis' discharge was upgraded by the BCMR... He now has an honorable discharge, but still has to wait until he is 60 to get his benefits, just like anyone else who doesn't finish 20 years... Seems he got pretty lucky in how his case was handled. He could have forfeit everything...