WASHINGTON— Two days after repeal of the "don't ask, don't tell" policy against gays serving openly in the military, the Obama administration was in court Thursday opposing a lawsuit seeking full severance pay for those dismissed under the law.
The American Civil Liberties Union is seeking class action status for 142 people who only got half pay after their discharge because of being gay. But the Justice Department asked the U.S. Court of Federal Claims to dismiss the case.
Judge Christine Odell Cook Miller said she probably will let the case continue and questioned why the government wouldn't pay now that the law has changed.
"Your timing is exquisite — two days after the policy goes into effect eliminating 'don't ask, don't tell,' here we are," she said as she took the bench.
"I would consider this to be an unenviable argument to have at this time," she told the government's attorney later.
The case was filed by the ACLU on behalf of former Air Force Staff Sgt. Richard Collins of Clovis, N.M. He was honorably discharged in 2006 after nine years of service when two civilians who worked with him at Cannon Air Force Base reported they saw him kiss his boyfriend in a car about 10 miles from the base. The decorated sergeant was off-duty and not in uniform at the time, according to the lawsuit.
In an interview Thursday, Collins said he and his partner, who are still together, always have been discreet about showing affection in public. "That one time I just happened to lean over and kiss him on the cheek," he recalled. "He said something sweet."
The Air Force paid Collins $12,351 instead of the $25,702 he expected after his discharge.
Separation pay is granted to military personnel who served at least six years but were involuntarily discharged, part of an effort to ease their transition into civilian life. But the Defense Department has a list of conditions that trigger an automatic reduction in that pay, including homosexuality, unsuccessful drug or alcohol treatment or discharge in the interests of national security. That policy went into effect in 1991, two years before "don't ask, don't tell" became law.
The suit argues it is unconstitutional for the Defense Department to unilaterally cut the amount for people discharged for homosexuality.
The administration is not defending the merits of the policy. Instead, Justice Department lawyer L. Misha Preheim argued the defense secretary has sole discretion to decide who gets what separation pay and the court cannot rewrite military regulations.
Miller said she would issue a ruling on the government's motion to dismiss by Oct. 15 after full review of the Justice Department's arguments, but her preliminary decision was to deny the motion. She warned Preheim and a uniformed Air Force attorney also at the defense table that they should be prepared for the case to move forward. She said it's probably appropriate to certify it for class action status, if the government really thinks it's worth it to continue fighting the case.
"I can't believe this is something the military wants to revisit now," she said.
Joshua Block, attorney with the ACLU lesbian gay bisexual and transgender project, said class action would cover 142 people who got half pay for being discharged for homosexuality in the past six years — the time period covered by the statute of limitations — for a total payment of $2.1 million. Miller, first appointed by President Ronald Reagan and reappointed by President Bill Clinton, questioned why for that amount of money the government would want to wade back into the "don't ask, don't tell" debate.
Collins, who is 35 and works for his partner's business, said he has talked to recruiters about going back into the military now that the policy has been abolished. But he's leaning against it since he'd have to go back in at his old rank after missing out on promotions in the past few years. And if he did re-enter, he said he'd be wary of openly discussing his relationship.
"Even though 'don't ask, don't tell' has been rescinded, I wouldn't go out there and flaunt it," he said. "Even though that policy is gone, you are still going to have discrimination from people."