Bush aides ask justices to uphold military's ban on homosexuals Supreme Court case would add to Clinton's dilemma

November 21, 1992|By Lyle Denniston | Lyle Denniston,Washington Bureau

WASHINGTON -- President-elect Bill Clinton's government-in-waiting, already caught between the military and gay rights activists over the future of homosexuals in uniform, may have to start worrying next about what to tell the Supreme Court.

In the waning days of the Bush presidency, the current government's legal aides are asking the Supreme Court explicitly to uphold the long-standing ban on gays in the military -- a ban that Mr. Clinton has vowed repeatedly to end.

The Bush administration's maneuver is further complicating Mr. Clinton's choices on this hot controversy -- and each of those choices already has its difficulties.

Mr. Clinton made an election-year promise to do away with the ban by the simple step of issuing a White House order. Although he has said he still intends to carry out that pledge, he and his aides have indicated since the election that he would first want to study the impact. There has been no talk of a timetable for such a study, beyond comments by Mr. Clinton's aides that he will decide "in the near future."

Yesterday, his spokesman, George Stephanopoulos, said in Little Rock, Ark., "He's pursuing it [the issue] in the most intelligent way he can, which is to study it, find out all the options and make a decision."

The president-elect and his associates in recent days have tried repeatedly to give assurances that he is not backing down on his controversial campaign pledge -- and at the same time to give assurances to the military that he understands the complex adjustments it will have to make if he ends the ban.

Now looming as another problem, developing in a matter of days, is a case moving forward in the Supreme Court. It is one that a Clinton administration would not have filed, cannot control until Inauguration Day and must somehow snatch away from the court if Mr. Clinton is to control fully the timing of his moves on the ban.

By the end of this month, the court will be issuing orders on new cases, and the military case filed by the Bush administration in September is among those awaiting early action. The case involves a woman who was ousted from the Army Reserve after revealing to a newspaper that she is a lesbian.

The court usually agrees to hear cases filed by the government.

Once the court starts moving on a case, its calendar of action unfolds in a predictable way. Thus, the case concerning homosexuals in the military may be quite advanced by Inauguration Day, moving toward a decision on the ban.

Mr. Clinton's options for a response as president appear to be limited to these:

* Do nothing, and let the case go forward. That could send a political signal that surely will be interpreted by some that he is not as committed to having gays in the military as he has said.

* Tell the court right away that a change will be coming and that it should just stand by. That would be a clear breach of lawyers' protocol and start the Clinton administration off on the wrong foot with the justices.

* Lift the ban at once, formally scuttling the legal controversy before the court. That would leave the military without time to make the preparations that top Pentagon leaders have said they would need.

The Supreme Court has been urged, by gay rights lawyers, to pass up the new case expressly because of Mr. Clinton's campaign promise.

"This case," those lawyers told the court after the election, "may well be settled once the new administration is in place."

But the justices usually do not regard their work as controlled by the political calendar. While the justices are free simply to hold the case for awhile, that is not an option they are likely to take.

The Bush administration will have control up to Inauguration Day over what the government says to the court about the pending case. Thus, at the moment Mr. Clinton takes the oath, the government still will be before the court asking for a ruling directly in favor of the gay ban that he has said he does not want continued -- an unusual coincidence in timing.

Most of the lower federal courts that have ruled on the issue have upheld the ban. But the 9th U.S. Circuit Court of Appeals in San Francisco raised basic doubts about the constitutionality of the ban earlier this year, and the Bush administration is now using that case as a basic test of the issue.

The case grows out of a move by the Army to end the military reserves career of a female captain who had disclosed in a newspaper interview that she is a lesbian and that she had twice gone through ceremonies of marriage to other women.

The woman, Dusty Pruitt, who became a Methodist minister in Los Angeles after a five-year active duty career as an Army recruiter, was dismissed from the Reserve following the newspaper story.

She challenged the constitutionality of the Army's ban on homosexuals and lesbians, arguing that it was an unconstitutional form of discrimination for the military to exclude individuals merely because of their sexual preferences. She did not dispute the military's right to discharge members who actually engaged in forbidden homosexual activity but did contend that the military could not constitutionally oust a member of the armed forces simply because of the person's status as a homosexual.

The Bush administration takes the view that a mere desire to have gay sex is enough to prove a "propensity to commit homosexual acts" and thus to justify a person's exclusion.

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