*QL-ED*: SB 419: MARINE'S VICTORY CITED IN GAY CASE

[lambda@aloha.net (Martin Rice)]

Aloha awakea kakou.

A companion piece to SB 418.  It still amazes me that gays in the military
are denied the basic freedom of speech that their het counterparts enjoy.
The hets can walk around talking about all the sex that they get, but gays
cannot do the same thing.  Bah!




HONOLULU STAR-BULLETIN
P.O. Box 3080
Honolulu, Hawai`i 96802
editor@starbulletin.com

January 27, 1998


MARINE'S VICTORY CITED IN GAY CASE
The 15-year veteran won retirement, not ouster, with his benefits in tact
By Gregg K. Kakesako
Star-Bulletin

In barring the Navy from discharging a Pearl Harbor sailor accused of being
gay, a federal court judge referred to a 1993 case where a 15-year veteran
Marine served for four years as openly gay while his case was being litigated.

In the end, Marine Corps Sgt. Justin Elzie prevailed and was allowed to
retire with his benefits intact.

Yesterday, U.S. District Judge Stanely Sporkin--in granting Senior Petty
Officer Timothy McVeigh's motion for a preliminaty injunction that barred
naval discharge--referred to his earlier decision in the Elzie case.

McVeigh, a 17-year Navy veteran, also is fighting to retain his retirement
benefits.  He has never publicly stated his sexual orientation.

The Navy found a "profile page" posted on America Online in which a "Tim"
wrote "gay" when asked his marital status.  A Navy investigator called AOL
anonymously and obtained the author's full name, a disclosure AOL later said
it regretted and was a violation of its own confidentiality policies.

Elzie, a medical supply clerk stationed at Camp Lejeune in North Carolina,
was the first openly gay Marine to challenge the military's policy on
homosexuals on Jan. 29, 1993, the day President Clinton instituted his
"don't ask, don't tell" policy which ordered the military to stop asking
service members about their sexual orientation.

Elzie had been accepted into the Marine Corps early retirement program,
according to Dixon Osburn, spokesman for the Servicemembers Legal Defense
Network, but the Marine Corps pulled his orders after his public disclosure
and tried to discharge him for being a homosexual.

Sporkin declared that it was unconstitutional for the Marine Corps to
discharge Elzie and ordered the Corps to keep him on active duty while the
case was being litigated.

While awaiting the outcome of the case, Elzie served for four years as an
openly gay Marine.  In February 1997, before the case could go to court,
both parties settled and Elzie received his retirement benefits and a
$30,000 check as part of those benefits.

In referring to the Elzie case, Sporkin said "it (the court) cannot
understand why the Navy would seek to discharge an officer who has served
his country in a distinguished manner just because he might be gay."

Sporkin said McVeigh's case "vividly underscores the folly . . . of a policy
that systematically excludes a whole class of person who have served this
country proudly and in the highest tradition of excellence."

Sporkin, in hs 15-page decision, said that although McVeigh's case does not
reach any of the constitutional principles underscoring the "don't ask,
don't tell, don't persue" policy, "the court must note that the defense
mounted against gays in the military have been tried before in our nation's
history--against blacks and women.  Surely, it is time to move beyond this
vestige of discrimination and misconception of gay men and women."

In allowing McVeigh, 36, to remain on the job pending the outcome of his
lawsuit, Sporkin said the Navy violated both its "don't ask, don't tell"
policy and a federal statute requiring it to obtain a court order before
getting information from an online service provider.

Sporkin said "'don't ask, don't tell' permits gay men and women to serve in
the military if he or she remains silent about his or her sexual
orientation."  The military is required to refrain from asking any members
about sexual orientation or pursuing an inquiry without "a reasonable basis
in fact."

~~~pau~~
 
  ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
  "When the Navy affirmatively took steps to confirm the
  identity of the email respondent, it violated the very
  essence of 'Don't Ask Don't Puruse' by launching a 
  search and destroy mission."          
                                --Judge Stanley Sporkin, 
                             ruling in the McVeigh case.
                           ~~~~~~
                      Fred and Martin,
                  25 years, yet strangers
              before all but 18.8% of the law.
  ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~


  




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