September 26, 2018 at 12:35 pm PST | by Mary Newcombe
Open military service is critical to freedom

Mary Newcombe is an attorney based in Los Angeles. (Photo courtesy Newcombe)

Recently my partner Kate shared a story about a colleague’s 13-year-old daughter coming out to her straight mom, who responded quite lovingly and appropriately. Having raised two adolescents, we know that teen identities commonly morph and her colleague should allow her daughter space to experiment with her identity.  But we also know it’s necessary for all people, whatever their ages, to be able to claim their identities and live without consequence for expressing them. 

The ability to name oneself and live freely was central to the defense of lesbians and gay men in the armed services in the dark 1980’s and 1990’s, including my clients, Maj. Dusty Pruitt and Col. Grethe Cammermeyer. It’s still central 7 years after the official end of “Don’t Ask, Don’t Tell” on Sept. 20, and as transgender servicemembers continue to fight on the legal frontlines.

In 1985, when I began practicing law, I knew of only a handful of lawyers who were openly gay, most of whom were sole practitioners or activists. I knew only one person in a large firm (shout out to Alan Heppel!) who was out at work. They were all courageous, given the extreme risk of job loss or family rejection. Many people lived in fear—but it was much harder for lesbians and gay men in the military.  A gay accusation or suspicion would instigate an investigation that would often result in discharge under less than honorable conditions—a status that drastically limited job and other opportunities in the civilian world.  Not to mention the unspeakable injury to an individual’s dignity: every servicemember I ever knew took pride in their service, even if they disagreed with a particular military conflict.

There were crucial differences in the discharge proceedings against Dusty and Grethe.  Dusty had been out a long time, during her five years in the Army, serving as a Captain in the Army Reserve, and as a minister in the Metropolitan Community Church. In 1983, she talked to the Los Angeles Times about her ministry and the difficulty of reconciling her sexual orientation with Christian teaching, volunteering that she was still in the Army Reserve.

Dusty’s commander saw the story and initiated an investigation. Susan McGreivy of the ACLU Lesbian and Gay Rights Project stepped in to defend Dusty but Dusty was stripped of her recent promotion to major and discharged. 

I became a cooperating attorney just before the federal district court upheld Dusty’s discharge, despite no allegation of improper conduct. We appealed the decision to the Ninth Circuit. Three years later, in August 1991, the court rejected our argument that Dusty had a First Amendment right to assert her identity. But, for the first time, the court stated the Army was required to demonstrate the regulation was premised on fact, rather than supposition. This meant we could move beyond the inevitable motion to dismiss and demand the armed forces prove the ban was justified. 

It was a tiny shift that altered the scope of future litigation over gay and lesbian rights—and it was made possible by Dusty’s willingness to challenge her discharge.  Soon after, Keith Meinhold won an order reversing his discharge because the Navy was unable to prove a legitimate evidentiary basis for its ban.  Dusty ultimately won her case and retired as Maj. Dusty Pruitt.

I was introduced to Grethe in 1989 when she sought help from Lambda Legal Defense and Education Fund. Grethe, a lieutenant colonel in the Washington National Guard who had served as a trauma nurse in Vietnam, had only recently come out after surprisingly falling in love with another woman. She did not really like people who marched in parades and had no intention of doing so herself. She wanted our help, though, because she had been threatened with discharge proceedings after disclosing her newly discovered sexual orientation during an interview for a higher-grade security clearance, a requirement for her goal of becoming Chief Nurse of the National Guard.  Although she was not out to anyone, the Army ordered the unwilling Washington National Guard to commence discharge proceedings. 

Grethe was incensed—she did not believe the Army she had served faithfully would take such a hard, illogical position. She wanted to fight.  I told Grethe that she should think long and hard before taking that step because it would mean intense public furor that could interfere with her relationship with her four sons. She had to come out to them first to show us she was serious—they were all supportive. 

That was my first real hint of Grethe’s strength of character.

Grethe’s commander, who didn’t care one whit about Grethe’s sexual orientation, was able to delay discharge proceedings for several years.  In 1991, however, she was discharged by a three-colonel panel led by Col. Patsy Thompson, a closeted lesbian.  Thompson gave an emotional speech praising Grethe’s record and skills, calling her a “great American” but concluding the regulation required her discharge.  Members of Grethe’s unit wept at her final command ceremony.

The following year, Bill Clinton was elected president, after promising to lift the ban on gays serving openly in the military. Enter Sen. Sam Nunn, the conservative Democrat who launched the hearings that ultimately yielded “Don’t Ask, Don’t Tell,” the doctrine that allowed gay people to serve their country, as long as they didn’t share their personal authenticity.

Grethe’s story about finding her lesbian identity late in life and fighting for the freedom to express it became a touchstone for the movement. And she marched in quite a few parades, loving every minute.

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