Constitutional Law

Department of Defense to Service Members: Homos Get Half

By James Esseks, LGBT Project

There's been lots going on around Don't Ask Don't Tell (DADT) this fall, from a federal judge ordering the reinstatement of Maj. Margaret Witt, to the Obama Administration getting a stay of an order from another federal judge that would have barred the enforcement of DADT worldwide, to continuing efforts at repealing the law in Congress. The ACLU LGBT Project has just added to the frenzy with a new class action case that challenges another form of discrimination faced by gay service members — reduced separation pay.

If you serve six years in the military and are then discharged involuntarily, Congress says you're entitled to separation pay to help ease your transition to civilian life. But the military has a policy — not required by any law — of cutting that separation pay in half if you're discharged, even honorably, for "homosexuality."

That policy needlessly compounds the discrimination inflicted by DADT in the first place. Take the lead plaintiff in our case, Richard Collins. He was a decorated Air Force Staff Sergeant who served nine years before being kicked out under DADT. He was seen kissing his civilian boyfriend, in a car at a stoplight, when he was off duty, out of uniform, and 10 miles off base. After being discharged under DADT, Staff Sgt. Collins discovered that his separation pay had been cut in half just because he's gay. That was the last straw for Staff Sgt. Collins, and he approached the ACLU. He didn't want to challenge his discharge under DADT, but he did want his full separation pay — another $12,000.

We thought it would be easy to get him his full pay and change the rule. After all, President Obama is clearly on record that the DADT law is both unnecessary and harmful to national security. And the separation pay rule is an internal Department of Defense policy that the Administration can change on its own, without Congress.

Turns out we were wrong.

Over the course of the last year, we've written to DOD several times, spoken with DOD officials, and even wrote to Sen. Carl Levin (D-Mich.), Chairman of the Senate Armed Services Committee, who asked Defense Secretary Robert Gates about the issue during hearings last winter on DADT repeal. But the administration hasn't budged — the DOD policy on separation pay remains the same: homos get half.

So today we've filed a class action case in the United States Court of Federal Claims challenging the separation policy under the equal protection and due process provisions of the Constitution. We seek to strike down the discriminatory policy and to recover the missing separation pay for those service members who were unconstitutionally denied it over the past six years. The lawsuit is also another opportunity to develop good law about what the 2003 Supreme Court decision in Lawrence v. Texas, which struck down all criminal sodomy laws as violative of the constitution's privacy protections, means for other areas of gay rights law. This case is poised to build on earlier positive decisions in the DADT context in the Witt v. United States Air Force case in the 9th Circuit, and the Cook v. Gates case in the 1st Circuit.

But we're also in this for political reasons. The administration's refusal to fix this discriminatory separation policy — a policy entirely within its control — calls into question its commitment to eradicating discrimination in the military. And it's a reality that needs to be part of the national discussion of the issue as we all work, in the lame duck session, to get Congress and the administration to get serious about DADT repeal.

Act now: Tweet President Obama: @BarackObama @WhiteHouse End the discriminatory pay separation policy against gay service members #DADT @ACLU #LGBT

(Originally posted on Pam's House Blend.)

Full post as published by Blog of Rights on November 10, 2010 (boomark / email).