Federal judges imperil policy on gays in military Administration appeals order against ban

October 02, 1993|By Lyle Denniston | Lyle Denniston,Washington BureauWashington Bureau

WASHINGTON -- President Clinton's policy on gays in the military may ultimately be upheld by the courts, but for now it is in deep legal trouble, and uncertainty over its future seems likely to last for months.

Just as the president appeared this week to be putting the issue behind him by getting his new policy through Congress, the gays policy was under attack from two federal judges -- one here and the other in California.

Justice Department lawyers have been going to court after court for weeks to defend the Pentagon against a variety of constitutional challenges by gay soldiers or sailors. Those challenges aim at the old Pentagon policy, the "interim" Clinton policy now in effect throughout the military, and the new Clinton policy that was to go into effect yesterday but now is postponed for perhaps two weeks.

Last night, department attorneys went to the 9th U.S. Circuit Court of Appeals in San Francisco with a new appeal seeking temporary permission for the Pentagon to continue acting against uniformed gays.

That appeal will challenge the most sweeping order ever issued by a federal judge against the military for its treatment of gay or lesbian soldiers because of their status as homosexuals.

In that order, U.S. District Judge Terry J. Hatter Jr. of Los Angeles blocked all of the Pentagon policies -- past, present and future -- and backed it up with a threat of contempt fines of at least $10,000 a day against top Pentagon officials if they disobeyed.

In January, Judge Hatter struck down the old policy and told the Pentagon not to discharge any gays under that policy.

On Thursday, the judge barred the military from taking "any action whatsoever" against gays solely because of their sexual orientation. He has allowed the military to act against a soldier who engages in homosexual conduct, but only if that conduct actually interferes with a military mission.

The Los Angeles judge has treated his commands to the military as nationwide in scope, and at least one other federal judge has viewed the actions that way, too.

Louis F. Oberdorfer, a senior U.S. District Court judge here, barred the Navy on Tuesday from discharging a submarine officer who had admitted he was gay after hearing Mr. Clinton say he would act to protect gays in the military.

New 'law of the land'

Judge Oberdorfer said Judge Hatter had established "the law of the land" for the time being against punishing gays in the military and ridiculed all of the main legal arguments the Pentagon has made to defend its treatment of gays.

Within a matter of weeks, a three-judge panel of the U.S. Circuit Court of Appeals here is expected to rule on the legality of the Naval Academy's 1987 ouster of Midshipman Joseph C. Steffan after he revealed, shortly before graduation, that he was gay.

The outlook for that decision is not promising for the Pentagon. The three most liberal judges on the Circuit Court here are handling the Steffan case, and their questioning of Justice Department lawyers at a hearing last month hinted that they were leaning toward striking down the discharge, perhaps raising serious constitutional doubts about the gays policy overall.

Although the Supreme Court has said repeatedly that courts should not second-guess too closely the choices the military makes about its own activities, that has not deterred lower court judges from refusing to take as binding the military's word on the need for an anti-gays policy.

Both sides predict success

Justice Department and Pentagon lawyers have repeatedly voiced confidence that they will win in the end, when one or more key cases finally reach the Supreme Court, probably sometime next year. Lawyers for gay soldiers and sailors, of course, do not share those predictions.

Whatever the outcome, all of the policies are under a cloud in the meantime.

Mr. Clinton has insisted that his new approach would allow gays to remain in the military -- so long as they remain celibate.

Groups and individuals favoring the historic ban in its strongest form generally agree that the new presidential policy is a relaxation.

Ronald D. Ray, a Louisville, Ky., lawyer, military historian and Army Reserve legal officer who worked in the American Security Council's campaign to keep the old ban, said the new policy "does represent a change." And, he said, "it will be treated as a relaxation because of the political position of the president and [Defense Secretary] Les Aspin in favor of having homosexuals in the military."

Civil liberties and gay groups that oppose any ban on gays in uniform argue that Mr. Clinton's policy represents no significant change. "None of it is any different, to tell the truth," says Beatrice Dohrn, an attorney for the gay rights legal group Lambda Legal Defense Fund, who has been involved in lawsuits against all forms of a gay ban.

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