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American Morning

Don't Ask, Don't Tell

Aired July 09, 2003 - 09:04   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.


BILL HEMMER, CNN ANCHOR: The recent decision by the Supreme Court on homosexuality is being used to challenge the military's don't ask, don't tell policy. The court ruled that a Texas law against homosexual sodomy violated the right to privacy. The military is not allowed to ask service members about their sexual orientation. A gay service personnel must keep the orientation secret. Well, Steve Loomis was a decorated lieutenant colonel, just eight days shy of eligibility for retirement, 20 years in the military when discharged for being gay. Now he's suing the army. He's live with us in Tulsa, Oklahoma.
Good to have you here, Steve, and good morning to you.

A fascinating story about how the military came across your sexual orientation back in 1996. Tell us how it happened.

STEVE LOOMIS, FMR. ARMY LT. COL.: Well, Bill, the situation was that there was a fire in my home. It turned out to be an arson. And the fire investigator following the fire took from my home a camera, a video camera and tape. He did that without a warrant. He didn't have cause, and he certainly didn't ask permission to take that tape. After using the tape and finding that it did not have information concerning the arson on it, he turned that over to the army, again, without a warrant or a court order. And, in fact, the local district attorney had indicated that the army would need to get a warrant or court order to get that tape. They then proceeded to use that tape in my discharge.

HEMMER: Now, we are seven years later, and you think you have a case against the Supreme Court that may be able to reverse that decision. Why do you think you an argument, Steve?

LOOMIS: Well, I'm a layperson when it comes to the law, but there are several things. The procedures that they used, in my case, they effectively did not allow me to use certain procedures that were covered in their regulations. They used the tape, which we believe very strongly it was not admissible and they should not have used it. It was a private issue. And in using that, we think that they violated the law.

We also think that the current Supreme Court case, Lawrence versus Texas, strengthens my case and probably other cases, too, concerning don't ask, don't tell.

HEMMER: You mentioned the Texas case. The pentagon gave a statement to us here at CNN today. I want to read it for the viewers and put it on the screen. Quoting right now: "The Supreme Court decision did not involve the DoD" -- referencing the case that you just mentioned about the Texas situation -- "Rather the case was a challenge of state criminal law that led to a state criminal conviction. Sodomy remains a courts martial offense under the UCMJ, the code of military justice. Since the general council is still reviewing the ruling, it would be premature to say whether or the UCMJ will or will not be affected."

Your reaction to what the Pentagon told us earlier today?

LOOMIS: Well, I don't think that they're correct on that. Again, I'm layperson so you'd probably want to get some expert opinion from lawyers on that. But in this case, I think clearly, the Supreme Court was laying out that there is a right to privacy and sexual intimate relations. And that's one of the things that we are maintaining in my case and that we believe is a problem with article 125 of the sodomy statute and with the don't ask, don't tell law also.

HEMMER: We're going to bring in Jeffrey Toobin in a moment here. But in the short time we have left here, you don't believe the don't ask, don't tell policy is working in the military. Why not?

LOOMIS: Absolutely not. You've got a situation where you're treating people in the military differently. You have two different standards depending on whether you're straight or whether you're gay. And you just can't treat people in the same unit differently. You have to treat them fairly and by the same standards.

Don't ask, don't tell has been a disaster. It has resulted in an increase in discharges under that law, rather than a decrease that's supposedly was hoped for when the law was put into effect. The law itself just does not treat people fairly. It is not fair. It is an invasion of privacy, and, in my case, we believe they also violated the law when they pursued me over this issue.

HEMMER: Steve Loomis, our guest in Tulsa, Oklahoma, thanks for sharing your story with us today here.

LOOMIS: Thank you very much.

HEMMER: Jeffrey Toobin is our legal analyst right now. We'll talk about this case and the Supreme Court.

Would they take up Steve's case or not?

JEFFREY TOOBIN, CNN LEGAL ANALYST: Good news and bad news for him, I think. The good news is, what was on that tape, it seems, private, consensual sexual conduct between adults in the privacy of their home, that was exactly what Lawrence V. Texas was about. So he would seem to have a good claim there, that you can't be punished for what the Supreme Court said is protected.

However, as the Defense Department said, the military is always different. Courts are very reluctant to interfere with anything involving the military's business. Lawrence v. Texas did have nothing to do with the military. So both of those factors will play into this. HEMMER: Why is it the Supreme Court would stay so far removed from any military decisions?

TOOBIN: The idea is the military has special needs, the military has needs for discipline. The military is responsible for national security. The courts don't really are have expertise in those areas. They generally tend to defer to the military's judgment on anything having to do with...

HEMMER: Or they would allow the lower courts to sort this out before it even arrived there?

TOOBIN: Certainly. When the Supreme Court does a big decision, likes Roe v. Wade in 1973, then this case, just this year, they usually, for a few years, let the lower courts deal with the implications, and then take it up again. We'll see a lot of cases like this, whether it's gay marriage, gay adoption, gay custody, the sodomy decision is going to play out in all those areas, and the lower courts will deal with it for a while before the Supreme Court comes back to it.

HEMMER: Thanks, Jeff. Jeff Toobin with us on AMERICAN MORNING.

TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com







Aired July 9, 2003 - 09:04   ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
BILL HEMMER, CNN ANCHOR: The recent decision by the Supreme Court on homosexuality is being used to challenge the military's don't ask, don't tell policy. The court ruled that a Texas law against homosexual sodomy violated the right to privacy. The military is not allowed to ask service members about their sexual orientation. A gay service personnel must keep the orientation secret. Well, Steve Loomis was a decorated lieutenant colonel, just eight days shy of eligibility for retirement, 20 years in the military when discharged for being gay. Now he's suing the army. He's live with us in Tulsa, Oklahoma.
Good to have you here, Steve, and good morning to you.

A fascinating story about how the military came across your sexual orientation back in 1996. Tell us how it happened.

STEVE LOOMIS, FMR. ARMY LT. COL.: Well, Bill, the situation was that there was a fire in my home. It turned out to be an arson. And the fire investigator following the fire took from my home a camera, a video camera and tape. He did that without a warrant. He didn't have cause, and he certainly didn't ask permission to take that tape. After using the tape and finding that it did not have information concerning the arson on it, he turned that over to the army, again, without a warrant or a court order. And, in fact, the local district attorney had indicated that the army would need to get a warrant or court order to get that tape. They then proceeded to use that tape in my discharge.

HEMMER: Now, we are seven years later, and you think you have a case against the Supreme Court that may be able to reverse that decision. Why do you think you an argument, Steve?

LOOMIS: Well, I'm a layperson when it comes to the law, but there are several things. The procedures that they used, in my case, they effectively did not allow me to use certain procedures that were covered in their regulations. They used the tape, which we believe very strongly it was not admissible and they should not have used it. It was a private issue. And in using that, we think that they violated the law.

We also think that the current Supreme Court case, Lawrence versus Texas, strengthens my case and probably other cases, too, concerning don't ask, don't tell.

HEMMER: You mentioned the Texas case. The pentagon gave a statement to us here at CNN today. I want to read it for the viewers and put it on the screen. Quoting right now: "The Supreme Court decision did not involve the DoD" -- referencing the case that you just mentioned about the Texas situation -- "Rather the case was a challenge of state criminal law that led to a state criminal conviction. Sodomy remains a courts martial offense under the UCMJ, the code of military justice. Since the general council is still reviewing the ruling, it would be premature to say whether or the UCMJ will or will not be affected."

Your reaction to what the Pentagon told us earlier today?

LOOMIS: Well, I don't think that they're correct on that. Again, I'm layperson so you'd probably want to get some expert opinion from lawyers on that. But in this case, I think clearly, the Supreme Court was laying out that there is a right to privacy and sexual intimate relations. And that's one of the things that we are maintaining in my case and that we believe is a problem with article 125 of the sodomy statute and with the don't ask, don't tell law also.

HEMMER: We're going to bring in Jeffrey Toobin in a moment here. But in the short time we have left here, you don't believe the don't ask, don't tell policy is working in the military. Why not?

LOOMIS: Absolutely not. You've got a situation where you're treating people in the military differently. You have two different standards depending on whether you're straight or whether you're gay. And you just can't treat people in the same unit differently. You have to treat them fairly and by the same standards.

Don't ask, don't tell has been a disaster. It has resulted in an increase in discharges under that law, rather than a decrease that's supposedly was hoped for when the law was put into effect. The law itself just does not treat people fairly. It is not fair. It is an invasion of privacy, and, in my case, we believe they also violated the law when they pursued me over this issue.

HEMMER: Steve Loomis, our guest in Tulsa, Oklahoma, thanks for sharing your story with us today here.

LOOMIS: Thank you very much.

HEMMER: Jeffrey Toobin is our legal analyst right now. We'll talk about this case and the Supreme Court.

Would they take up Steve's case or not?

JEFFREY TOOBIN, CNN LEGAL ANALYST: Good news and bad news for him, I think. The good news is, what was on that tape, it seems, private, consensual sexual conduct between adults in the privacy of their home, that was exactly what Lawrence V. Texas was about. So he would seem to have a good claim there, that you can't be punished for what the Supreme Court said is protected.

However, as the Defense Department said, the military is always different. Courts are very reluctant to interfere with anything involving the military's business. Lawrence v. Texas did have nothing to do with the military. So both of those factors will play into this. HEMMER: Why is it the Supreme Court would stay so far removed from any military decisions?

TOOBIN: The idea is the military has special needs, the military has needs for discipline. The military is responsible for national security. The courts don't really are have expertise in those areas. They generally tend to defer to the military's judgment on anything having to do with...

HEMMER: Or they would allow the lower courts to sort this out before it even arrived there?

TOOBIN: Certainly. When the Supreme Court does a big decision, likes Roe v. Wade in 1973, then this case, just this year, they usually, for a few years, let the lower courts deal with the implications, and then take it up again. We'll see a lot of cases like this, whether it's gay marriage, gay adoption, gay custody, the sodomy decision is going to play out in all those areas, and the lower courts will deal with it for a while before the Supreme Court comes back to it.

HEMMER: Thanks, Jeff. Jeff Toobin with us on AMERICAN MORNING.

TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com