SEATTLE, Wash. -- A challenge to the Pentagon's two-year-old law barring lesbians and gay men from openly serving in the military was argued March 4 before a three-judge panel of the United States Ninth Circuit Court of Appeals in Seattle, Wash.
The case, filed on behalf of former Navy Petty Officer Mark Philips, contends that the current "don't ask, don't tell, don't pursue" ban on gays in the military violates the constitutional guarantees of equal protection and free speech, and is based solely on the government's fear that heterosexual troops are prejudiced against lesbians and gay men.
Matt Coles, Director of the National Lesbian and Gay Rights Project at the American Civil Liberties Union, said the case is the first to focus on the "conduct" portion of the ban, which permits heterosexuals to engage in private sexual conduct, but which forbids all intimate relationships for lesbians and gay men.
"This case goes to the heart of the government's prejudice against lesbians and gay men," said Coles, who argued the appeal. "Under this law, gay servicemembers are discharged for acts of intimacy and love which everyone else may participate in freely. This violates the basic premise of our Constitution, which was written precisely to prevent laws that apply to only one group of Americans."
Philips was serving aboard the aircraft carrier U.S. Nimitz in Bremerton, Wash. when he disclosed his sexual orientation to a commanding officer shortly after President Clinton was elected in November 1992. Philips, who had received many commendations including a Bronze star for his service in Desert Storm, came out of the closet in part to demonstrate that the ban costs money and valuable personnel. (According to a General Accounting Office report issued in 1992, approximately 17,000 lesbian and gay men were discharged between 1980 and 1990 at a cost of $500 million to taxpayers.)
In December 1992, while responding to questions from the ship's legal officer, Philips said that he has had intimate relationships with men off-base, and would continue to do so. None of his partners were in the military.
The case is on appeal from a federal district court in Seattle, which issued a summary judgment last March in favor of the government, which had argued that none of Philip's constitutional rights has been infringed.
"Mark Philips has given over four years of his life to serving our country," Coles said. "History will find it appalling that his military career was cut short just to satisfy an out-dated stereotype."
The ACLU is also counsel in two other challenges to the military's current ban. In New York, the ACLU represents six lesbian and gay service members who won an important ruling last March from a federal judge who held the law was unconstitutional (Able v. USA). In Virginia, the ACLU is assisting Navy Lieutenant Paul Thomasson in his lawsuit. Both cases are currently awaiting a federal appeals court decision.