By Jake Rossen
By Jesse Marx
By Michelle LeBow
By Alleen Brown
By Maggie LaMaack
By CP Staff
By Jesse Marx
Kayser appealed the dismissal to the U.S. District Court in Omaha, hoping the judge would conclude that barring Richenberg from the military simply for being gay was a violation of his constitutional rights. When the appeal failed, he took the case to the Eighth District Circuit Court of Appeals, where a three-judge panel ruled 2-1 that serving in the military was not a constitutional right. Finally Kayser petitioned the U.S. Supreme Court, which refused without comment to take up the case.
In the past five years, the court has turned away eight such requests. "The Supreme Court doesn't seem to have any inclination to review this policy, which is too bad," Kayser says. "Because this is governmentally mandated bigotry. If we were talking about any other group, pick your ethnic or religious group, these cases would be heard."
Lt. Col. Tom Begines, a Defense Department spokesman on personnel matters, rejects the idea that the military's intolerance for homosexuality has anything to do with prejudice, and he is quick to point out that no one has a "right" to be in the military. He argues that the nation's armed forces don't allow openly gay and lesbian service members because their presence would erode "unit cohesion"--a phrase Gen. Colin Powell used when pitching "Don't Ask, Don't Tell" to President Clinton in 1991. "It's important to maintain the quality of the relationship between individuals in the military unit that causes them to work together as a team and to support and defend their teammates and to work together to achieve a mission," Begines says, defining the term. In other words, if one member of the troop is uncomfortable with another's sexual preference, it could cause a breakdown in morale.
Baker Spring, a senior policy analyst at the Heritage Foundation, a conservative public-policy think tank in Washington, D.C., also cites unit cohesion as a fair reason to keep gays out of the military (and women out of combat). Like many military traditionalists, Spring believes "Don't Ask, Don't Tell" is a failure, a vague policy that has already resulted in too much litigation. "Homosexuality is incompatible with military service. Period," he maintains. "Military service is a privilege, not a right. In my judgment, sexual identity is a clear personal characteristic that tends to distract from unit cohesion, from attention to one of the most stressful duties any human being can take."
Retorts Kayser: "Sound familiar? White boys won't follow Negro officers. White boys will not take orders from Negro officers. White boys don't want to be in close proximity with Negroes. White boys don't want to be on a ship with Negroes or sleep in a bunk next to them. Now you take out the words whiteand Negroand insert straightand gayand you have exactly, word for word, the excuses used for 'Don't Ask, Don't Tell.'"
What both sides do agree on is that until the U.S. Supreme Court decides to hear a case that challenges "Don't Ask, Don't Tell," the policy, with all of its nuances and gray areas, will not be discarded. And the court is not likely to do so anytime soon.
Which is why gay advocates believe it crucial that Ron Falcon and other discharged gay personnel come forward and force the military not only to clarify its policy, but to publicize every alleged instance of commanders flouting the rules. Somewhere along the line, they hope, a lower civilian court might hand down a decision in their favor and set a precedent for future litigation.
In Falcon's case, two key issues come into play: Jammer's credibility and the air force's desire for recoupment. According to its "Guidelines for Fact-Finding Inquiries Into Homosexual Conduct," the military believes credible information exists "when the information, considering its source and the surrounding circumstances, supports a reasonable belief that a service member has engaged in homosexual conduct. It requires a determination based on articulable facts, not just a belief or suspicion." Given that definition, Kyle White believes, when an official solicited a second e-mail from Jammer, the air force was "asking" about Falcon's sexual orientation in the absence of reliable facts. But because Jammer's information was accurate, and because Falcon wrote a letter disclosing that he was gay, White admits that winning an appeal of his client's dismissal isn't likely.
Phil Duran, the law student who assisted White in Denver, believes there is room to challenge the air force's request for recoupment, however. "Ultimately I believe this is a procedural case, a contract case," says Duran, who is spending his summer in Chicago working as a law clerk for the Lambda Legal Defense and Education Fund, the oldest and largest agency litigating for the civil rights of gays and lesbians. "The military doesn't exist in a vacuum. They have to abide by their own rules."
The "rules" to which Duran refers were cited in White's closing argument in Denver. An update from the Office of the Under Secretary of Defense issued in April 1998 declared that "statements acknowledging homosexuality generally do not provide a basis for recoupment, unless it is determined that the service member made the statement for the purpose of seeking separation from the military." And when the colonels in Denver decided to grant Falcon an honorable discharge, they also concluded that he did not disclose his homosexuality in order to be let go from the air force.