Justices refuse to uphold military's ban on gays

December 08, 1992|By Lyle Denniston | Lyle Denniston,Washington Bureau

WASHINGTON -- The Supreme Court refused yesterday to put its prestige behind the military's ban on gays, forcing the armed services to try to justify that rule in court while President-elect Bill Clinton plans a way to end it.

In a surprising move, the court turned aside a Bush administration plea to uphold the constitutionality of the long-standing rule that no known homosexual may remain in uniform. The court order will mean, in practice, that Mr. Clinton will be able to deal with the ban in his own way and in his own time.

That action was one of a series of significant orders by the court yesterday, including one that brought to an end another major Iran-contra criminal case by scuttling the criminal prosecution of John M. Poindexter, former national security adviser to President Ronald Reagan, and sparing him a six-month jail term.

In the case concerning homosexuals in the military, there was no explanation for the court's refusal to get involved in the fight. The refusal marked a rare rebuff for the administration, because the court seldom bypasses government appeals and almost never does so when a major policy is at stake.

Lawyers for a former Army Reserve captain who is a lesbian had asked the court to pass up the administration appeal in her case because Mr. Clinton has vowed to end the ban. But the Justice Department had retorted: "This court should not make its docketing decisions based on statements made by candidates running for public office. The current policy remains in full force."

It is "a matter of national importance," the administration argued, to clear up any doubt about the constitutionality of the ban on gays after a series of conflicting lower court decisions on it.

Although most lower courts have upheld the ban in a variety of cases, the 9th U.S. Circuit Court of Appeals in San Francisco indicated in May that it would have to strike down the ban if the military did not offer a valid justification for it.

The ban as written, the Circuit Court said, would force out of the military a person merely on the basis of that individual's status as a homosexual, without regard to whether he or she actually engaged in homosexual conduct. A ban going that far, it ruled, would be unconstitutional discrimination.

The Circuit Court also said the military could not use as one of its reasons for the ban the U.S. society's general disapproval of homosexuality. "Prejudice of others against homosexuals" was not a valid justification, it said.

The Bush administration took the case on to the Supreme Court, saying the military should not have to prove its need for the restriction. The military's judgment that it was necessary should be accepted by the courts, the appeal contended.

The case involves Carolyn D. "Dusty" Pruitt, a former captain in the Army Reserve, now a community church minister in Los Angeles, who was discharged six years ago after she told a newspaper that she was a lesbian.

As a result of the Supreme Court's order yesterday, the case now goes back to lower courts, with the Army under a duty to give reasons in its efforts to salvage the policy -- an effort that could end if Mr. Clinton nullifies the restriction.

The new president is expected to act, perhaps not immediately, to end the Army's ban and similar rules enforced by the other armed services. He has indicated he may want to study the issue before acting, but he has left no doubt that he would do so. He could have been put under pressure to act more swiftly if the Supreme Court had gotten involved.

The Supreme Court's order yesterday in the Iran-contra case of Mr. Poindexter was the latest in a continuing series of setbacks for the special prosecutor, Lawrence E. Walsh, who has been looking into that scandal for six years.

Mr. Walsh's two most important cases from the scandal were against Mr. Poindexter and his former National Security Council aide, former Marine Lt. Col. Oliver L. North. Now, both have come to an end without the criminal verdicts intact.

On Sept. 16, 1991, a federal judge dropped all charges against Mr. North at Mr. Walsh's request after a federal appeals court here ruled in Mr. North's favor, and the Supreme Court turned down a Walsh appeal.

The appeals court decision in the North case, based on a conclusion that his prosecution had been "tainted" by the use against him of immunized testimony he had given to Congress in 1987, also foreshadowed a legal victory in Mr. Poindexter's separate case.

Using the legal standards it laid down in Mr. North's favor, the appeals court ruled 13 months ago that the Poindexter trial also had been "tainted" by use of immunized testimony Mr. Poindexter had given to Congress. Paradoxically, the main "taint" of the Poindexter trial came from the appearance there of Mr. North -- a reluctant prosecution witness who said he had been saturated by exposure to Mr. Poindexter's immunized testimony.

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