Army Reservist Ben-Shalom Sues for Reinstatement Summary

  • Last updated on November 11, 2022

After Sgt. Miriam Ben-Shalom had confirmed to a reporter that she was lesbian, she was discharged from the U.S. Army Reserve. She sued for reinstatement and was readmitted by the courts, but the Army refused the court’s orders until 1988. She served one more year but lost her bid to reenlist, a case that reached the U.S. Supreme Court in 1990. Her battle with the military and courts makes her the first out lesbian or gay service person to be reinstated to the U.S. armed forces for any length of time after being discharged as lesbian or gay.

Summary of Event

After Sgt. Leonard Matlovich began his battle to win reinstatement after the U.S. Air Force discharged him in 1975 because he was gay, U.S. Army Reserve drill sergeant Miriam Ben-Shalom took notice. An out lesbian, Ben-Shalom was one of the first two female drill sergeants in the 84th Training Division of the Army Reserve. She had been wondering at the time why she, too, had not been discharged because of her sexual orientation. [kw]Army Reservist Ben-Shalom Sues for Reinstatement (1976-1990) [kw]Reservist Ben-Shalom Sues for Reinstatement, Army (1976-1990) [kw]Ben-Shalom Sues for Reinstatement, Army Reservist (1976-1990) Military, U.S.[Military US];and service ban[service ban] Lesbians;military service [c]Military; [c]Civil rights; [c]Laws, acts, and legal history; Ben-Shalom, Miriam Matlovich, Leonard Evans, Terence Wood, Harlington, Jr.

Ben-Shalom had earned bachelor’s and master’s degrees at the University of Wisconsin and had served in the Israeli army before completing drill sergeant school with the U.S. Army. After her training, she was asked by a reporter about her sexuality. She answered honestly, and her commanding officer then sought her discharge. Ben-Shalom was discharged in 1976 and then sued for reinstatement. She had won her case, was refused reentry by a noncomplying Army, continued her legal fight, and then finally won reinstatement in 1987. In late 1988, with the Army still refusing to comply with the court’s order, she began serving the remaining year of her service obligation after the court threatened the Army with contempt of court. She then tried to reenlist but the Army refused to reenlist her; she sued, then lost her U.S. Supreme Court Supreme Court, U.S.;discrimination case, Ben-Shalom v. Marsh, Ben-Shalom v. Marsh (1989)[BenShalom v Marsh] in 1989.

At the same time as Ben-Shalom’s battle, Matlovich continued his fight against the Air Force. In 1978, the U.S. Court of Appeals ruled his discharge illegal, and in September of 1980, a federal judge ordered his reinstatement and awarded him back pay. Rather than comply, the Air Force worked out a costly settlement with Matlovich; he accepted and dropped the case because he felt it better to end with a victory and believed the conservative Supreme Court would have been unlikely to rule in his favor.

Ben-Shalom, however, continued to pursue her case. She had not been discharged for homosexual conduct, but rather because she stated she was lesbian. For this reason, her discharge was listed as honorable. Moreover, Ben-Shalom’s case was based on her First Amendment right to free speech and due process. In May of 1980, five months before the more well-known Matlovich decision, the U.S. District Court in Chicago ruled Ben-Shalom’s discharge unconstitutional according to the First, Fifth, and Ninth Amendments. Judge Terence Evans also noted that one’s sexual orientation should not be subject to government interference, whether in the armed forces or elsewhere. His statements demonstrated that gays and lesbians in the military deserve the constitutional protection of free speech, among other rights. The Army refused to reinstate Ben-Shalom, in spite of Judge Evans’s orders, though it dropped its appeal in the case.

After being denied reinstatement by the Army, Ben-Shalom filed suit to force Army compliance. The Court of Appeals in Chicago repeated the orders to reinstate Ben-Shalom in 1987, and, in 1988, after the court threatened the Army with heavy fines for contempt of court if it continued to fail to comply, Ben-Shalom was allowed to resume her position as a drill sergeant and finish her term of service, which ended in 1989. She then tried to reenlist, and the Army refused. She sued once more, and the lawsuit landed in the Court of Appeals. A three-member panel led by Judge Harlington Wood, Jr., found in the Army’s favor. Wood had reasserted a long-standing military claim, that the presence of out gays and lesbians would imperil military morale and discipline. It did not matter to Wood that Ben-Shalom had been reinstated earlier and that she served with distinction without imperiling morale and discipline. Wood had relied on the military regulation that authorized discharge because of an individual’s statements that demonstrated a tendency toward homosexual conduct or statements that one is homosexual or bisexual. The Army still had no evidence of “lesbian contact.” The Supreme Court refused to hear Ben-Shalom’s appeal in 1990, and her costly bid for reenlistment was denied. With little outside support, she was left to pay off a heavy legal debt.

Significance

Although she ultimately lost her bid for reenlistment, Miriam Ben-Shalom’s reinstatement in 1988 was a key victory for gays and lesbians in the military. Judge Evans’s reinstatement orders were upheld in 1987. It was on the point of reenlistment that Ben-Shalom lost. Thus, the Army had been forced to reinstate Ben-Shalom for roughly one year, the time left on her service contract. Her successful presence in the Army for that time challenges the argument that out gays and lesbians would undermine morale among the troops. Moreover, she had been the first lesbian or gay person to win reinstatement, five months ahead of Matlovich, and she had pursued the case through higher courts and won. Though she had been denied by the Supreme Court reenlistment as an out lesbian, she exposed military hypocrisy in a way Matlovich was unable to do because he had settled his case before the Air Force faced a legal challenge. Military, U.S.[Military US];and service ban[service ban] Lesbians;military service

Further Reading
  • citation-type="booksimple"

    xlink:type="simple">Belkin, Aaron, and Melissa Sheridan Embser-Herbert. “A Modest Proposal: Privacy as a Flawed Rationale for the Exclusion of Gays and Lesbians from the U.S. Military.” International Security 27, no. 2 (2002): 178-197.
  • citation-type="booksimple"

    xlink:type="simple">Bérubé, Allan. Coming Out Under Fire: The History of Gay Men and Women in World War Two. New York: Free Press, 1990.
  • citation-type="booksimple"

    xlink:type="simple">Cain, Paul D. Leading the Parade: Conversations with America’s Most Influential Lesbians and Gay Men. Lanham, Md.: Scarecrow Press, 2002.
  • citation-type="booksimple"

    xlink:type="simple">Don’t Ask, Don’t Tell, Don’t Pursue Digital Database, Stanford University Law School. http://dont.stanford.edu.
  • citation-type="booksimple"

    xlink:type="simple">Humphrey, Mary Ann. My Country, My Right to Serve: Experiences of Gay Men and Women in the Military, World War II to the Present. New York: HarperCollins, 1990.
  • citation-type="booksimple"

    xlink:type="simple">Rimmerman, Craig A. Gay Rights, Military Wrongs: Political Perspectives on Lesbians and Gays in the Military. New York: Garland, 1996.
  • citation-type="booksimple"

    xlink:type="simple">Servicemembers Legal Defense Network. Conduct Unbecoming: Annual Reports on “Don’t Ask, Don’t Tell, Don’t Pursue, Don’t Harass.” 1994-2003. http://www.sldn.org.
  • citation-type="booksimple"

    xlink:type="simple">_______. Survival Guide: A Comprehensive Guide to “Don’t Ask, Don’t Tell, Don’t Pursue, Don’t Harass,” and Related Military Policies. 4th ed. Washington, D.C.: Author, 2003.
  • citation-type="booksimple"

    xlink:type="simple">Shilts, Randy. Conduct Unbecoming: Lesbians and Gays in the U.S. Military—Vietnam to the Persian Gulf. New York: St. Martin’s Press, 1993.

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