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The 9th U.S. Circuit Court of Appeals on Friday reinstated a lawsuit by a former Air Force doctor ordered to pay back his medical school expenses after revealing he is gay. But San Francisco psychiatrist John Hensala’s case could end up being about a lot more than just the military’s policy of attempting to recoup education costs from service members who come out of the closet. The divided three-judge panel all but invited Hensala to challenge the military’s “Don’t Ask, Don’t Tell” policy in light of the U.S. Supreme Court’s groundbreaking decision this year in Lawrence v. Texas. “We’re reading the opinion and trying to determine all of its implications,” said Clyde Wadsworth, one of Hensala’s attorneys. “We can’t ignore the fact that Lawrence v. Texas undermines the whole ‘Don’t Ask, Don’t Tell’ policy.” The majority opinion, written by Judge Sidney Thomas, overturned summary judgment on part of Hensala’s claim that the recoupment policy violates his rights. “If it is demonstrated that the armed forces is discriminating based on status [rather than conduct], Hensala’s equal protection and First Amendment claims present genuine issues that need to be resolved at trial,” wrote Judge Sidney Thomas. He was joined by Judge Richard Paez. Judge A. Wallace Tashima dissented. “Quite simply, [Hensala] refused to perform his part of the bargain — he reneged on his promise,” Tashima wrote. After completing medical training and one month before he was to report for active duty, Hensala notified the military that he intended to live with his boyfriend while stationed at Scott Air Force Base in Kansas. Though Hensala maintained that he wished to fulfill his obligations, the military ruled that he came out to avoid service and ordered him to repay more than $70,000 in educational fees. He sued in 2000, but was prevented from challenging the “Don’t Ask, Don’t Tell” policy itself. The 9th Circuit upheld it in Holmes v. California Army National Guard, 124 F.3d 1126, saying it had to defer to military policy on matters of national security. However, Friday’s panel said the question of whether the military violates the rights of gays and lesbians when it asks for recoupment — rather than simply discharging them — is a different question. Oral arguments took place nearly a year ago, but a decision was put off pending the June decision in Lawrence v. Texas, 123 S.Ct. 2472, which struck down a Texas law banning homosexual sodomy. In supplemental briefs Hensala raised a claim based on Lawrence, but the panel declined to consider it. “Because this claim has not been presented to the district court, we decline to address it on appeal,” Thomas wrote. “We do not, of course, preclude the parties from pursuing this claim on remand.” Though the majority expressly declined to consider whether Lawrence overrules Holmes, the dissent had no such reservations. “Though the majority invites Hensala to pursue his newly raised claim under Lawrence v. Texas on remand, after supplemental briefing I conclude that Lawrence does not impliedly overrule Holmes,” Tashima wrote in a footnote to Hensala v. Dept. of the Air Force, 03 C.D.O.S. 8317. He pointed out that Holmes — from which he dissented — dealt with the “special needs” of the military, and that this case wasn’t close enough on point.

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