Gay Veterans Will Have Their Day in Court

We may be a few months out from the new year, but it’s safe to say that the demise of Don’t Ask, Don’t Tell will be marked as a highlight of 2011. The end of that discriminatory statute and its demeaning implications to the men and women who serve our country is something to be celebrated. But even though DADT is gone, the legacy of unfair treatment of gay and lesbian veterans continues.

One of those legacies is the Defense Department’s separation pay policy for discharged service members. 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 DOD has an internal policy — not required by any statute — of cutting that separation pay in half if you’re discharged, even honorably, for “homosexuality.”

Let’s be clear: Many of those who were discharged under DADT were distinguished soldiers, airmen or cadets and had an unblemished record. They were service members in good standing, and there was nothing dishonorable about their discharge. Yet they are denied the same separation pay as other honorably discharged service members merely because they’re gay or lesbian.

That’s what happened to our lead client in our class action lawsuit challenging this needless policy. Richard Collins 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 was cut in half.

We filed this lawsuit on behalf of Collins and 142 other service members about a year ago. We expected at the time that, once Congress passed the statute authorizing repeal of DADT, the government would quickly settle the case and give these honorably discharged service members the separation pay they are entitled to. Instead, the government has inexplicably dragged its feet every step of the way.

In May, the government asked the court to dismiss the case, without even defending the constitutionality of the policy. Instead the government argued that the courts could not provide any relief to service members whose separation pay was cut in half while DADT was still in effect. It didn’t make sense to us, and apparently, it didn’t make any sense to the court. Today, Judge Christine O.C. Miller of the U.S. Court of Federal Claims denied the government’s request and will allow these veterans to be heard.

The court’s decision means that these 142 service members will finally have their day in court. The government will have to explain to them and to the rest of the public how cutting their pay in half served important governmental interests. The government will have to make that explanation, even though the Pentagon has already issued a detailed report making clear that discrimination against gay and lesbian service members is entirely unnecessary and doesn’t serve the interests of the military. Good luck with that.

The government’s conduct is all the more baffling because in other contexts, the Justice Department has worked hard to defend LGBT people from this sort of pointless discrimination. Most dramatically, the Justice Department issued a thorough legal opinion explaining why discrimination based on sexual orientation must be treated as constitutionally suspect and has refused to defend the discriminatory Defense of Marriage Act in federal court. But apparently, the relevant decisionmakers at the Pentagon haven’t gotten the memo, and continue to defend this outdated and irrational policy.

This case is about more than money. It’s about basic fairness. When you make a mistake, the right thing to do is to apologize and try to fix the problem. The government can’t undo all the harm that DADT inflicted on Mr. Collins and other honorably discharged veterans. But it can at least take the small step of giving these veterans the separation pay that was gratuitously taken away from them. In Richard Collins’ own words: “We gave all in serving this nation. The Pentagon should not give us half in return.”

- Joshua  Block, ACLU LGBT Project

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