Ruling could allow more gays to serve

October 01, 1993|By Lyle Denniston | Lyle Denniston,Washington Bureau

WASHINGTON -- A federal judge in California put a sweeping new ban yesterday on any action by the Pentagon against gays in the military -- an order that appears to be broad enough to block all of the new policy President Clinton and Congress have adopted.

U.S. District Judge Terry J. Hatter Jr. issued the new order without even being asked to do so. It expanded an earlier order that the Pentagon insisted it had not violated by continuing to act against admitted gays.

If the new ruling withstands an expected appeal by the Pentagon, all of the armed forces would have to allow gays to stay on duty until they actually engaged in homosexual conduct that interfered with military missions.

They could not be discharged, put in standby status, denied re-enlistment, or have their gay orientation noted in any file or record -- even if they said in public that they prefer sex with homosexual partners.

In a part of the order that strikes directly at the new Clinton policy, the judge declared that "sexual status alone is not sufficient to establish sexual conduct" of a kind that could lead to discharge or other punishment for a member of the service.

Under the president's policy due to go into effect within two weeks, and as ratified by both houses of Congress, a person who admits to being gay faces discharge unless that individual can prove to superiors that he or she has not had homosexual sex and will not.

The judge's order even applies to any recruit who is openly gay. No individual seeking to enlist can be denied that chance simply because of sexual orientation.

Judge Hatter's broad new command to the Pentagon replaces one he issued in January, which barred the Pentagon from discharging gays. That order, like this one, was issued in the case of Navy instructor V. Keith Meinhold of San Diego. The first order is being appealed by the Clinton administration.

Mr. Meinhold's lawyer, John McGuire, called the judge's new move "a sweeping new order meant to fill in any possible gap" in protecting uniformed gays. "This covers the present policy and any of the new policies when the Pentagon wants to implement them," he argued.

The judge said in his Los Angeles courtroom yesterday that he was changing his earlier order "so perhaps the military is more clear of what is intended by this court."

While barring "any actions whatsoever" against gays in service or seeking enlistment, Judge Hatter chose yesterday not to hold top Pentagon officials in contempt of court, as Mr. Meinhold's lawyer had asked last week because military officials had continued to change the status of openly gay members.

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