Military gay ban unconstitutional, judge rules Policy called based on illegal prejudice

August 31, 1993|By McClatchy News Service

SACRAMENTO, Calif. -- In a sweeping attack on Pentagon efforts to ban gays and lesbians from the military, a federal judge in Sacramento has ruled that the controversial policy is unconstitutional because it is based on illegal prejudice.

U.S. District Judge Milton L. Schwartz yesterday also ordered the Navy to reinstate Mel Dahl, an ex-sailor who sued after he was discharged in 1982 because he is gay.

"No governmental entity, even the military, can enact and enforce prejudicial policies without doing violence" to constitutional guarantees of equal protection of the laws, Judge Schwartz wrote in his opinion.

Mr. Dahl, who argued his own case in federal court in 1989 while a first-year student at Sacramento's McGeorge Law School, said yesterday that he was "very pleased that this 11-year battle for me may now be resolved."

Mr. Dahl, now an attorney in Boston, said he might be willing to re-enter the Navy as a lawyer, if the government does not appeal the case.

Assistant U.S. Attorney Michael A. Hirst said he could not comment because he had not read the judge's opinion.

The ruling targeted Defense Department rules against gays and lesbians that were in effect when Mr. Dahl served during the early 1980s -- not the policy of "don't ask, don't tell" announced this summer.

But critics have argued that the Pentagon's new policy actually differs little from the previous rules. Last month, the administration launched a defense of both sets of provisions in two appellate courts.

Mr. Dahl, who joined the Navy in October 1980, acknowledged during an interview with Navy officials in 1981 that he was gay, but denied engaging in any homosexual conduct. He was honorably discharged in January 1982.

Judge Schwartz is the second federal judge nationwide to rule on the constitutionality of rules barring gays and lesbians from serving in the armed forces.

Last January, U.S. District Judge Terry Hatter Jr. of Los Angeles struck down the Pentagon's 50-year-old exclusionary policy and forbade the Defense Department from discharging or denying enlistment to gays and lesbians.

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