October 16, 2015 at 12:21 pm EDT | by Chris Johnson
Court upholds reprimand for airman who opposed gay wedding
Sue Fulton, Penelope Dara Gnesin, West Point, Dont' Ask, Don't Tell, gay news, Washington Blade

West Point alum Sue Fulton wed Penelope Dara Gnesin at the Cadet Chapel in 2012 (Photo by Jeff Sheng used with permission from Fulton)

A member of the Utah Air National Guard reprimanded for objecting to officials at the U.S. Academy at West Point about a same-sex wedding there — calling it a “mockery of God” — isn’t entitled to relief under the U.S. Constitution or federal law, a federal judge ruled this week.

U.S. District Judge Amit Mehta, an Obama appointee, dismissed in a 35-page decision Wednesday a challenge filed by Layne Wilson, a Mormon who in 2012 used his military email account to object to an official at West Point about a same-sex wedding taking place at the academy’s chapel.

The email, dated Dec. 2, 2012, had the subject line “Homosexuality weddings at military institutions” and was sent to Maj. Jeffery Higgins, whom Wilson believed was the chaplain at West Point.

“I just read an article that a homosexual wedding was performed at the Cadet Chapel at West Point,” Wilson wrote. “I need to let you [know], that this is wrong on so many levels. If they wanted to get married in a hotel, that is one thing. Our base chapels are a place of worship and this [is] a mockery to God and our military core values. I have proudly served for 27 years and this is a slap in the face to us who have put our lives on the line for this country. I hope sir that you will take appropriate action so this does not happen again.”

The message was forwarded to Brig. Gen. Ted Martin, West Point’s Commandant of Cadets. In a subsequent email, Martin alerted Utah’s Assistant Adjutant General for Air Brig. Gen. David Fountain about Wilson’s complaint.

“I am not sure why he wrote me—maybe he thinks I care about his opinion (which I don’t), or that I am responsible for the policy (which I am not), or that I control the facility (which I don’t), but in any event I believe he may have some problems with the lifting of ‘Don’t Ask, Don’t Tell’ and thought that you or his immediate commander might want to further investigate,” Martin wrote. “If I did control all of the above, he should know that I still don’t care about his opinions, and that I am flabbergasted that he would think it is OK to question any of my orders or policies. I will just hit the delete key on his message and go about my business.”

After Wilson’s superior. Lt. Col. Kevin Tobias, learned about the situation, he disciplined Wilson by rescinding his six-year reenlistment contract, offering in its place a one-year contract Wilson later signed, and issuing a letter of reprimand. After Wilson challenged these actions, Tobias acknowledged error in rescinding the six-year contract and reinstated it, but concluded the reprimand would stay in place.

Wilson rebuked his commander for letting the reprimand stand, posting an article on his Facebook page about his situation. The enlistee deleted the post, but screenshots were sent to the commander before it was taken down, prompting a second letter of reprimand.

“I only want to say one thing to you Kevin Tobias!!! Sir!!! You are way out of line!!!” Wilson wrote. “You embarrass me, our country, and our unit!!! I have done nothing but try to support our constitution and our religious freedoms. You are part [of] the problem with this country. I have tried reason with you, use[d] diplomacy with you, but that doesn’t seem to work. Shame on you sir!!!!”

Wilson had already lost his security clearance as result of his superior establishing Security Information File on him based on conduct related to Facebook postings.

In September 2013, Wilson filed a federal lawsuit, challenging his punishment under various claims, including the Religious Freedom Restoration Act as well as the First and Fifth Amendments. Also in the complaint, Wilson alleges the wedding “arguably” was a violation of the Defense of Marriage Act, which at the time prohibited the federal government from recognizing same-sex marriages.

In her decision this week, Mehta chides Wilson for making a “bevy of claims” and the apparent lack of clarity in Wilson’s arguments.

“Throughout his Complaint and in subsequent briefing, Plaintiff indiscriminately connects various theories of liability—predicated on the Constitution, statutes, and military regulations—with the different disciplinary actions taken against him, creating a thicket of allegations and claims that are often difficult to discern,” Metha writes.

Each of Wilson’s claims is denied by the judge. For the First Amendment claims, Mehta asserts the email to unknown officer at West Point outside of Wilson’s chain of command was “unprotected speech” and his Facebook rant is “afforded even less First Amendment protection.”

“It goes without saying that speech by a subordinate that publicly denigrates and humiliates a commanding officer is not entitled to the First Amendment’s protections,” Mehta writes.

The judge rejects Wilson’s claims under the Religious Freedom Restoration Act on the basis that a substantial burden on one’s religious beliefs is different from a burden on one’s exercise of religious beliefs and therefore doesn’t violate the law.

“The First LOR punished Plaintiff for voicing his views about same-sex marriage, using his military email account, to a senior officer outside his chain of command,” Mehta writes. “That is all. It did not bar him from voicing his opposition to same-sex marriage in other fora or by other means, and certainly not in his private affairs. Such disciplinary action does not rise to a RFRA violation.”

The decision comes down as the ability for individuals to object to LGBT rights or refuse services to LGBT people on religious grounds has become prominent in public discourse. During a speech at an LGBT gala in New York City this month, President Obama said, “Religious freedom doesn’t grant us the freedom to deny our fellow Americans their constitutional rights.”

Nowhere in the litigation is the couple named who participated in the same-sex wedding at West Point, but it’s likely Sue Fulton, president of the LGBT military group SPARTA, and Penelope Gnesin, who wed there in a highly publicized wedding on Dec. 1, 2012.

Fulton told the Washington Blade religious freedom was in fact upheld in the court decision because the law “prevents Americans from forcing their religious beliefs on other Americans.”

“The Episcopal Chaplain who married me and my wife was an Army Colonel – Wesley Smith – who stood alongside Revered Vanessa Southern, a Unitarian Universalist, and six other ministers of different denominations, including Presbyterian, United Church of Christ, and Alliance Baptist, to bless our seventeen-year union,” Fulton said. “I am grateful to West Point and to the nation that I serve that all are welcome, and none are denied their rights because of people like that airman.”

The initial named defendant in the lawsuit was Eric Fanning, who at the time was acting Air Force secretary and the first openly gay person to hold that position. Fanning’s name was removed after Deborah Lee James was confirmed as Air Force secretary. Fanning was recently nominated as Army secretary, but is awaiting Senate confirmation.

Rose Richeson, an Air Force spokesperson, said the service is satisfied with the decision in the case based on the behavior of Wilson.

“This case was about a military member’s improper use of government email communications and social media,” she said. “This individual had a history of using his government email to send unprofessional communications and was counseled by his commander. After this counseling, the member continued his behavior. The member also made unprofessional derogatory comments about his commander on social media.”

John Wells, a private Slidell, La.-based attorney representing Wilson, told the Blade he plans to appeal the district court decision.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson is a member of the White House Correspondents' Association. Follow Chris

  • I’m sure attorney John Wells is rubbing his hands together with glee at the thought of filing an appeal so he can get even more money out of Wilson. And if Wilson wants to throw his money away in his futile attempt to violate the First Amendment by forcing his dogma on others, then let him waste everything he’s ever earned. It’s just too bad our already over-burdened court system is being clogged by the self-righteous, and I can only hope someone in the Utah Air National Guard comes to their senses and realizes Wilson’s bigotry makes him unsuitable as a soldier.

    • I doubt he’s spending his own money. His litigation costs are likely covered by religious conservative organizations. They are dying for a religious freedom win in court to roll back the Sunami of marriage equality wins! After years of winning at the ballot box and legislature, the courts have finally given them a near consistent defeat!

      It was good that the judge rejected Wilson’s claims “under the Religious Freedom Restoration Act on the basis that a substantial burden on one’s religious beliefs is different from a burden on one’s exercise of religious beliefs and therefore doesn’t violate the law.” If anything Wilson’s action setup a precedent that may help us in later cases!

      We need to hope the balance of the SCOTUS isn’t upset by the wrong appointment in the future when there is a vacancy. narrowly won marriage equality with very vociferous dissent from the court’s more conservative members on many grounds. Only one vote, Kennedy’s, tipped the ruling in our favor. Religious conservatives know this and they hope for an eventual religious freedom affirmation to counter our rights and give them an exemption. Take nothing for granted.

      Wilson stupidly thought his religious rights claim gives him the right to violate military chain of command which they never tolerate in the military. Even in the private sector, it’s stupidity and job suicide to publically criticize your boss and post it where everyone including him or her can see it. His bosses ego and authority to use it against Wilson was enough to due him in.

    • time to courtmartial wilson and give him a bd concucct discharge

      wilson is a common name but a law group of thAt name has fought tooth and nail to prevent raped children in the catholic church of the endless hidden molestation from receiving compensation

  • “Airman” more like Airhead.

    • Thank you for your exemplary display of tolerance for the opinions of others. Your contribution has earned you an Honorary Mention in this year’s competition for the Exemplifying Tolerance Award.

      • Have you served 21 years in the military while being gay? How about one day? I’ll take that “Tolerance Award” and raise you a STFU.

        • I’m sorry, Kerry B has already won this year’s Exemplifying Tolerance Award, though you did receive an Honorable Mention. And if only you had spelled out the profanity in your post without resorting to Internet shorthand, you might have qualified for a “Plays Well with Others” certification.

      • clicked on your nAme all I can say for you is that you still have a way to go before equating your self with atila the hun

  • I object to mentally ill members of a fringe cult serving in the military.

  • The press in Salt Lake City, including the Mormon Church-owned Deseret News and KSL radio and TV stations, has refused to run this story.

    KSL and the Deseret News are never shy about airing stories that portray Mormons as victims of religious persecution by gay couples who are seeking to marry each other. However, this so-called attack on religious freedom hasn’t inspired so much as a mention from Mormon Church’s propagandists.

  • I think that the only solution to these sorts of bigoted attacks on Gay Marriage or same-sex unions is to ban the Bible from being printed, published, sold, purchased, read, and preached. The Bible is the source of these kinds of homophobic displays and once it is entirely banned the attacks will become fewer and in a generation or two will cease to exist at all.

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