E-Mail This Article to a Friend NEWS FROM THE FRONT ‘Don’t Ask, Don’t Tell’ comes under fire BY DEIRDRE FULTON

For some time, polls have shown that a majority of US civilians think those who are openly gay or lesbian have the right to serve in the military. In October, a University of Pennsylvania National Annenberg Election Survey found that half of junior enlisted service members also approve. Congress has failed to act on that public opinion, so 12 gay, lesbian, and bisexual veterans are suing the Pentagon for denying their rights.

Two legal decisions — a 2003 Supreme Court ruling and a military-court ruling that came down earlier this month — boded well for the six men and six women (including one from Jamaica Plain) who claim the military’s "Don’t Ask, Don’t Tell" policy infringes on their rights to freedom of speech, due process, equal protection under the law, and privacy.

"Americans don’t necessarily check all of their constitutional rights when they enter military service," says Steve Ralls, director of communication for Washington, DC–based Servicemembers Legal Defense Network (SLDN), which filed the suit in the First Circuit Court of Appeals in Boston.

The military argues that open homosexuality could lead to lapses in discipline or unit cohesion, and courts are often deferential to the military when it comes to creating and implementing policies. Many courts have heard, and upheld, "Don’t Ask, Don’t Tell."

But last year, the Supreme Court in Lawrence v. Texas overturned a 1986 ruling that criminalizing sodomy was constitutional. While the scope of the Lawrence decision may or may not reach the barracks, Ralls says it could set a tone of acceptance for private, consensual adult acts. No "Don’t Ask, Don’t Tell" case has been heard since the Lawrence ruling. And on December 8, a military appeals court struck down its own broad policy on sodomy, leaving decisions to be made on a case-by-case basis — something that "removes a huge roadblock to repealing the ban," Ralls says.

SLDN and the 12 plaintiffs hope these decisions indicate a more tolerant legal and military climate, one in which Boston’s federal court might rule in their favor. The suit is "really smart," says Aaron Belkin, director of the California-based Center for the Study of Sexual Minorities. Its chances are bolstered, he adds, by the venue (a "virgin circuit" that’s never heard a "Don’t Ask, Don’t Tell" case) and by the plaintiffs’ compelling personal stories.

Boston University law professor Robert Volk, an expert in gay and lesbian rights, agrees that the challenge has a "greater chance of success than it has in the past." The biggest concern for the plaintiffs, he says, will be to poke holes in the military’s argument that openly gay and lesbian service members would undermine order.

They will use Jenny Lynn Kopfstein’s story to help do so.

When she graduated from the US Naval Academy in 1999, Kopfstein went straight to Surface Warfare Officers School and then to the USS Shiloh, stationed off the coast of San Diego. Almost immediately, Kopfstein says, she felt uncomfortable when shipmates talked about personal matters — even simple things like weekend plans.

"I feel really strongly about not lying," she said on the phone from San Diego. "And I couldn’t really answer them without lying."

Kopfstein decided to write a letter to her commanding officer, saying she was a lesbian and that she wanted to continue serving. The CO threatened her with an investigation; however, she was not immediately discharged, instead spending two years "out" as a naval officer on the Shiloh.

She never disrupted the order on her ship, Kopfstein says; on the contrary, she got along with her peers and subordinates, and received glowing reports from two captains — both of whom testified on her behalf when she finally found herself in front of the Board of Inquiry. Kopfstein was honorably discharged in October 2002.

Now, as one of the 12 plaintiffs in Cook v. Rumsfeld, she’ll be the one testifying — on behalf of the roughly 10,000 veterans who have already been discharged and the 65,000 gays and lesbians currently serving in the US military.

But if given the opportunity, Kopfstein would still serve. All of the plaintiffs seek to rejoin the military. And if the court says they can, it would "get rid of the last official stamp of discrimination," Volk says. "It would put another nail in the coffin of discrimination."