Compromise plan to give temporary protection to gay soldiers may not work

January 30, 1993|By Lyle Denniston | Lyle Denniston,Washington Bureau

WASHINGTON -- President Clinton's compromise plan to give gay service members temporary protection against discharge while letting the military pursue cases against homosexuals may not work because of legal complications already developing.

At a minimum, it now appears, the success of the compromise will depend heavily upon the cooperation of a number of federal judges and of lawyers who represent gays threatened with discharge or transfer.

The prospects of legal trouble began to emerge immediately yesterday as lawyers here and elsewhere who specialize in the issue of gays in the military analyzed the Clinton plan and a Los Angeles federal judge's order striking down the gay ban in a celebrated discharge case.

Some of the complications foreseen by those experts include:

* The president's desire to put on hold the nine current court cases involving gays already barred by the military will be fulfilled only if judges agree; requests for delays in the federal court cases may also be met by opposition from the gays' own lawyers, and that could influence each judge's response.

* The elaborate temporary system ordered by Mr. Clinton to allow further processing of gays' discharges may itself produce new legal challenges, perhaps leading to orders interfering with that process.

* Gays allowed to stay in the military temporarily over the next six months very likely will seek court orders forbidding the Pentagon to shift them from active duty into standby reserve, as the Clinton plan allows.

* The Pentagon must shift its investigations from the mere fact that a service member is gay to evidence of actual homosexual behavior. That evidence will lead to further challenges, thus delaying the discharges that Mr. Clinton's order allows.

* The administration's Justice Department and Pentagon must face immediately the fact that U.S. District Judge Terry J. Hatter Jr. of Los Angeles did not write a narrow order when he ruled on Thursday that the Navy may not discharge Navy sonar instructor V. Keith Meinhold, 30, who is gay. The breadth of the order could produce a number of legal complications.

The Hatter order, in fact, is so sweeping in scope that it could complicate what the Pentagon can do anywhere, in any command, against gays -- unless Judge Hatter or a higher court can be persuaded to delay his order.

The Pentagon, the order says, is permanently banned from ousting "any person based on sexual orientation" without proof that that individual's conduct "interferes with the military mission of the armed forces."

If the Navy seeks to put Petty Officer Meinhold in a reserve unit, taking him off of active duty, nothing would prevent his lawyer from asking Judge Hatter to prevent that, too, on the theory that he was still being singled out unconstitutionally because he admits he is gay. That, of course, is the theory the judge relied upon to strike down the ban on gays.

Should the administration seek to confine Judge Hatter's order to his judicial district only, in order to retain flexibility across the nation, it would have to revive a resistance policy that was followed by the Reagan and Bush administrations: that is, obeying sweeping judicial orders only in the district where they were issued.

The Justice Department, at this early stage in the new administration, may not want to commit itself to that policy -- especially to protect a ban on gays that the president himself believes is wrong. Moreover, such a challenge to Judge Hatter's order would be targeting a judge who helped the president's cause. as Mr. Clinton noted yesterday.

The administration apparently will have little time to sort out a strategy for dealing with the likely legal complications.

Within the next week, in fact, it may have to make firm decisions about what to do with the Meinhold case, because of the sweep of that order. The Justice Department yesterday said it would study the order and give the president some options.

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