Wait eight days, and open the door to subsequent claims of selective enforcement of "don't ask, don't tell."
Posted on 07/08/2003 2:21:21 PM PDT by 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.
(Excerpt) Read more at advocat.com ...
The 'dishonorable conduct' in question is specifically homosexual conduct. The Don't Ask Don't Tell Don't Pursue policy is the procedural guideline which governs applications of the homosexual conduct provision of the UCMJ. Either it was followed, or it was not. In the event that this policy was not followed, then the application is legally invalid. Whatever the case, if the particular provision [i.e. the federal anti-sodomy statute] is unconstitutional, then any discharge under that specific provision would also be invalidated...
The guy who burned down the house out of frustration. If not returning those photos and tapes was not harrassment then what is ? What other way could he have pursued without getting himself discharged ? Or is it not possible in your mind for a gay to be guilty of acting dishonorably ?
If you want to take up any cause take up the other guys cause if he got discharged over this (which the article seems silent on).
Like it or not, the relevant military judicial policy has been procedurally governed by Don't Ask - Don't Tell - Don't Pursue since 1993. Is that so hard to understand?
It says that where ? I only read a general statement. Besides, who cares which label they use if the guy actually was dishonorable.
Yes, I see that. He may very well be guilty (and is guilty in my estimation) of all sorts of violations. However, from a legal standpoint, the only relevant provisions [at this juncture] are those under which he was actually investigated and discharged. Whether the military would choose to apply some other provision in the event that the provisions they applied were ruled invalid is another question altogether.
Wouldn't you assume that if he is doing that the legal beagles handinling the case would have already exhausted the other avenues that you claim to be questioning ?
Seems like a stupid argument to make if the case could be made it was applied wrong in the first place.
From post #69: Lt. Col. Loren Stephen Loomis, 50, received a 'less than honorable' discharge for 'behavior unbecoming an officer' after an Army board ruled he had engaged in homosexual conduct.
It appears that the basis for the discharge was a ruling that he had engaged in homosexual conduct, thereby violating the federal anti-sodomy statute. One may extrapolate the same simply from the basis on which the case has been filed....
Besides, who cares which label they use if the guy actually was dishonorable.
The Supreme Court would care, and would be indifferent as to whether you or anyone else cares...
Wait eight days, and open the door to subsequent claims of selective enforcement of "don't ask, don't tell."
Conduct is a broader term than simply sodomy. Taking naked pictures etc and having a relationship with a sub is also homosexual conduct.
Do keep it clean - A bruise or two between Freepers is tolerable, but refrain from abusive attacks, engaging in senseless flame wars, and using profane language. Considering the range of topics we discuss, it's hard to be a family site, but that's what we aim for when at all possible.
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.
In rereading the opening sentences he is appealing the constitutionality of the don't ask, don't tell policy.
He is appealing the constitutionality of both Don't Ask, Don't Tell and the UCMJ's anti-sodomy provision.
Wouldn't you assume that if he is doing that the legal beagles handinling the case would have already exhausted the other avenues that you claim to be questioning ?
What other legal avenues? This is the legal avenue..
Seems like a stupid argument to make if the case could be made it was applied wrong in the first place.
How so? They obviously want a test case. I haven't read the brief, but it likely challenges the constitutionality of Don't Ask Don't Tell and then goes on to challenge the application in this instance, assuming the former argument is not ruled upon favorably. Whatever the case, I would not comment further until I've actually read the brief. You clearly feel no such restraints...
I see no reason whatsoever to expect that the Supreme Court will strike down the ban on openly gay servicemembers, as they've consistently declined review in past challenges.
There's some reason to believe that the Court will strike down the federal sodomy statute, since they've just ruled such statutes unconstitutional. It's possible that the Court will defer in this respect as it frequently does in such matters.
Otherwise, from a legal standpoint, the U.S. Constitution rules; followed by the Supreme Court; followed by the Congress; followed by the President; followed by the Pentagon; followed by the UCMJ.
As for why I care: the reason I initially bothered to comment in this thread is because a number of remarks were implying that Lawrence would lead to an overrule of the military ban on openly gay servicemembers, when there's no reason whatsoever to think that will prove the case.
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