President seeks to defend both old, new gay policies Military is given broad discretion

July 31, 1993|By Lyle Denniston | Lyle Denniston,Washington Bureau

WASHINGTON -- The Clinton administration, making a full-scale legal defense of both old and new government policies on gays in uniform, has told two federal courts that the issue must be left almost entirely to the discretion of the military.

In a move aimed at thwarting complaints of unconstitutional bias against homosexuals in the military, Justice Department lawyers argued that a judgment by the military services that homosexuals must be treated differently to meet military needs is enough to satisfy the Constitution.

Courts have no authority

Courts, those attorneys contended, have no authority to demand specific evidence from the military to justify its conclusions on the terms of a policy on gays.

The views were spelled out in lengthy legal briefs filed with federal appeals courts here and in San Francisco.

The case here involved a constitutional lawsuit filed by a former Naval Academy midshipman, Joseph C. Steffan, who was discharged after he admitted to his superiors that he is gay. He is suing to get his diploma.

The California court is handling a separate lawsuit filed by a Navy sonar instructor, V. Keith Meinhold, who was ordered to leave the Navy after he announced on television that he is gay. He has won temporarily the right to stay in the military while the Pentagon appeals.

Both those cases involve servicemen who were ordered out under the military's long-standing ban on homosexuals in uniform -- a ban that President Clinton strongly denounced.

Two weeks ago, Mr. Clinton announced a new policy, describing it as a "significant advance" that would allow homosexuals to remain in the service as long as they remain silent about being gay.

Under the policy, a public admission that one is gay is treated as "homosexual conduct," and the policy forbids anyone engaging in such conduct from remaining in the service.

Broad position

The legal briefs the administration sent to the two courts late Thursday and made public yesterday contained arguments that were broad enough to support the old ban, as well as the new policy. In fact, the government was under a duty to defend the old ban's constitutionality or else face losing in both of the pending cases.

The new policy's constitutionality already is under a separate challenge, in a new lawsuit filed here Tuesday.

In one of the boldest gestures by department lawyers, they refused to accept a federal appeals court ruling -- one that the Supreme Court had voted just last December to leave in tact -- that told the military it had to come up with some proof to support its need for a policy on gays.

The appeals court said the military could not use as proof the anti-gay attitudes of other soldiers.

The Bush administration had asked the Supreme Court to overturn that ruling, but the justices refused even to consider that request -- thus leaving the appeals court decision in effect.

Even so, the Clinton administration's legal brief Thursday claimed that the appeals court ruling was "simply erroneous." It contended that a more recent Supreme Court constitutional ruling, issued June 24, will govern claims of government discrimination.

That later decision, although dealing with claims of bias in mental hospital commitment, is more general in scope, the lawyers argued, and fully supports the military's right to control gay policy for reasons of its own.

This represented a switch by the Justice Department, since top officials there had been assuring private lawyers in discussions a few weeks ago that they could accept the appeals court's demand for justification.

Reagan-Bush phrases

The new legal briefs followed closely, in some parts word-for-word, the legal arguments that the Reagan and Bush administrations had made repeatedly in asking federal courts not to interfere with military discretion on gays.

Besides embracing those arguments, the Clinton administration briefs relied significantly on the views of Pentagon leaders -- voiced most recently in a Senate hearing a week ago -- on the need for barring from the service anyone who engages in homosexual acts or has a desire to engage in such acts.

In that hearing, one of the briefs argued, Pentagon civilian and military leaders used "forceful and unambiguous testimony" to support the policy against gays "who commit, or have a propensity to commit, homosexual acts."

The president's new policy on gays, which he called an "honorable compromise," resulted from heavy, and at times angry, debate within the government. Similarly, the legal position the government would take when it filed its views in court has been the subject of a sometimes intense debate at the Justice Department.

The only hint in the new briefs of the in-fighting at the department was a clear suggestion that the government was defending, at this point, only the military policy on gays, and was not to be understood as defending any other form of differing treatment of gays in a civilian situation.

Relying heavily on a 1984 appeals court ruling, written by then-Judge Robert H. Bork, upholding the total ban on gays in the military in an earlier Navy case, the new briefs argued that the military services are "a specialized society separate from civilian society" that has "unique needs" that the courts are obliged to respect.

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