Federal court rules against military gays policy
By GENE JOHNSON
SEATTLE (AP) The military cannot automatically discharge people because they're gay, a federal appeals court ruled Wednesday in the case of a decorated flight nurse who sued the Air Force over her dismissal. The three judges from the 9th U.S. Circuit Court of Appeals did not strike down the military's "don't ask, don't tell" policy. But they reinstated Maj. Margaret Witt's lawsuit, saying the Air Force must prove that her dismissal furthered the military's goals of troop readiness and unit cohesion. The "don't ask, don't tell, don't pursue, don't harass" policy prohibits the military from asking about the sexual orientation of service members but requires discharge of those who acknowledge being gay or engaging in homosexual activity.
Wednesday's ruling led opponents of the policy to declare its days numbered. It is also the first appeals court ruling in the country that evaluated the policy through the lens of a 2003 Supreme Court decision that struck down a Texas ban on sodomy as an unconstitutional intrusion on privacy.
When gay service members have sued over their dismissals, courts historically have accepted the military's argument that having gays in the service is generally bad for morale and can lead to sexual tension. But the Supreme Court's opinion in the Texas case changed the legal landscape, the judges said, and requires more scrutiny over whether "don't ask, don't tell" is constitutional as applied in individual cases.
Under Wednesday's ruling, military officials "need to prove that having this particular gay person in the unit really hurts morale, and the only way to improve morale is to discharge this person," said Aaron Caplan, a staff attorney with the American Civil Liberties Union of Washington state who worked on the case.
"When the government attempts to intrude upon the personal and private lives of homosexuals, the government must advance an important governmental interest ... and the intrusion must be necessary to further that interest," wrote Judge Ronald M. Gould. One of the judges, William C. Canby Jr., issued a partial dissent, saying that the ruling didn't go far enough. He argued that the Air Force should have to show that the policy itself "is necessary to serve a compelling governmental interest and that it sweeps no more broadly than necessary."Gay service members who are discharged can sue in federal court, and if the military doesn't prove it had a good reason for the dismissal, the cases will go forward, Caplan said.
An Air Force spokeswoman said she had no comment on the decision and directed inquiries to the Defense Department. Lt. Col. Todd Vician, a Defense spokesman, said he did not know specifics of the case and could not comment beyond noting that "the DOD policy simply enacts the law as set forth by Congress."
In other news Representative Henry Waxman, Chairman of of the Congressional Oversight and Government Reform Committee, in a letter requested documents related to the recent sharp increase in the number of personnel conduct waivers, which allow the enlistment of U.S. service members who would otherwise be precluded by recruitment standards, and released the number of waivers granted for specific criminal felonies in FY 2006 and FY 2007.
The data, released Monday by the House Oversight and Government Reform Committee, reveals that the number of Army felony waivers given to enlistees jumped from 249 in 2006 to 511 in 2007. The number of felony waivers granted in the Marine Corps rose from 208 to 350. The numbers are broken down according to the nature of offense for when a felony waiver was needed. During the 2006-2007 period, the Army offered waivers to three soldiers who had been convicted of manslaughter, one convicted of kidnapping, eleven convicted of arson, one hundred forty two convicted of burglary, three convicted of indecent acts with children, seven convicted of sexual assault, and three convicted of making terrorist threats.
During that same time, the Pentagon continued discharging almost 700 service members annually under the “Don’t Ask, Don’t Tell” law banning lesbian, gay and bisexual personnel from serving openly in the military. This data shines a bright light on the outrageousness and absurdity of "Don’t Ask, Don’t Tell." On the one hand, the Pentagon is discharging highly-qualified, honest, law-abiding men and women because they are gay, while on the other hand granting waivers to rapists, killers, kidnappers and terrorists. Repealing "Don’t Ask, Don’t Tell" will reduce the need to grant felony waivers.
Meanwhile, Gay service members recently discharged from the armed forces are fuming over recruiters admitting ex-felons to fill the ranks, while the military continues to expel others for their sexual orientation.
Alexander Blais, a former Army soldier discharged in 2007, was frustrated that the military would take on convicted felons to fill shortfalls in desperation while at same time continue its policy of expelling gay troops. He said, “They’ve lowered their standards to let these soldiers into the military to try to make up for the fact that we are indeed in an unpopular war,”. Blais, 22, began serving in Army intelligence in 2005 and participated in National Security Agency (NSA) counter-terrorism and counter-narcotics activities. In 2006, while taking part in a mission in Costa Rica, Blais let it slip to commanding officers and fellow soldiers that he was gay. After being put under status known as a “suspension of favorable actions,” Blais was stripped of his “top secret” clearance, making him ineligible for NSA duties. He was discharged in March 2007, but technically for medical reasons and not because of his sexual orientation. Lawyers for Servicemembers Legal Defense Network found that the Army had started a medical review on Blais because he had asthma. SLDN argued that this review held precedent over investigation into his sexual orientation. The Army agreed to follow through with the medical review and dismiss him for his medical condition.
Blais said he was particularly angered because he contends straight soldiers were participating in sexual misconduct during the 2006 mission in Costa Rica, and yet these soldiers were promoted upon return to the United States instead of being discharged. “There were a number of married non-commissioned officers that fooled around with each other and with the locals down there, and it was well-known to almost everybody, but nothing was ever said or done about it,” he said.
Bet yet it is okay to allow straight single Service Members in Afghanistan to have as much hanky panky as desired even though it is an admitted "adverse impact on unit cohesion, morale, good order and discipline". Talk about double standards! Let's not forget to mention the possibilities of "war babies syndrome" as a very likely reality by this decision.
Ban on sex for soldiers in Afghanistan is lifted...
By Drew Brown, Stars and Stripes
Mideast edition, Wednesday, May 14, 2008
JALALABAD, Afghanistan — Single soldiers and civilians working for the U.S. military in Afghanistan can now have sex legally. Sort of. A new order signed by Maj. Gen. Jeffrey Schloesser, commander of Combined Joint Task Force-101, has lifted a ban on sexual relations between unmarried men and women in the combat zone.
General Order No. 1 outlines a number of prohibited activities and standards of conduct for U.S. troops and civilians working for the military in Afghanistan. Previously, under the regulation, sexual relations and "intimate behavior" between men and women not married to each other were a strict no-no. The regulation also barred members of the opposite sex from going into each other’s living quarters unless they were married to each other.
But the latest version of General Order No. 1 for Afghanistan, which Schloesser signed April 19, eases those restrictions. The new regulation warns that sex in a combat zone "can have an adverse impact on unit cohesion, morale, good order and discipline." But sexual relations and physical intimacy between men and women not married to each other are no longer banned outright. They’re only "highly discouraged," and that’s as long as they’re "not otherwise prohibited" by the Uniform Code of Military Justice, according to the new order.
Single men and women can now also visit each other’s living quarters, as long as everyone else who lives there agrees, and as long as visitors of the opposite sex remain in the open "and not behind closed doors, partitions or other isolated or segregated areas," according to the new regulation. Unmarried men and women who are alone together in living quarters must leave the door open, according to the new policy. Men and women "will not cohabit with, reside or sleep with members of the opposite gender in living spaces of any kind," unless they are married or if it’s necessary for military reasons, the new policy states.
Lastly, for those whom didn't see it by now, the Gay Military story unfolds on Grey's Anatomy
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