High court allows 'don't ask, don't tell' But military's gay policy not in clear

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

WASHINGTON -- The Supreme Court voted unanimously yesterday to let the Clinton administration promptly put into effect a new policy on homosexuals in the military, temporarily easing Pentagon fears over gays serving openly in the ranks.

But the court's action may have been only a short-term victory for the government. It did not settle any of the basic legal issues that surround Pentagon controls on gays in uniform.

Old and new versions of official policies on gays are under constitutional challenge in courts from coast to coast, and three federal judges already have ruled at least temporarily against military commanders' moves against homosexuals in their units.

Court ruling rare

In a one-page order, the Supreme Court cut back sharply on the most sweeping of those judges' rulings, the one issued a month ago by U.S. District Judge Terry J. Hatter Jr. of Los Angeles. That ruling has kept the Clinton administration in turmoil over the policy throughout this month. The government's plea to the court earlier this week described a military in crisis over Judge Hatter's action.

The Supreme Court did not fully explain its action yesterday. It did say that it clearly had the power to scale back Judge Hatter's order, even though the 9th U.S. Circuit Court of Appeals, which is now reviewing that order, had refused to do so.

But the court order was rare, a kind taken only in the "most compelling and unusual circumstances," in the wording of the court's legal manual. The court acted without giving a sailor's lawyer a chance to reply to the Pentagon's plea.

Meinhold can serve

The California judge's order, which the Pentagon claimed had stymied the entire military-wide program for dealing with gays, was pared down by the justices so that it now is limited to protecting a single sailor, Navy Petty Officer V. Keith Meinhold of Palo Alto, Calif. He gets to continue on active duty until court appeals in his case are over. The Navy tried to discharge him after he said on television that he is gay.

Petty Officer Meinhold's lawyer, John McGuire of Los Angeles, said he saw the court's order as a maneuver "to give the military a lot of leeway until they [the justices] have before them a court of appeals decision striking down the policy."

The practical effect of the justices' order was to give the Pentagon legal permission to implement swiftly a new, compromise approach that originally was due to go into effect Oct. 1.

Under that approach, gays will be allowed to remain in the service only if they keep their sexual orientation secret. Any public admission that they prefer gay sex could lead to discharge, whether or not they actually had engaged in gay sexual activity.

Now that the court has acted, the Pentagon is free to act on its own to start enforcing what it calls the "don't ask, don't tell, don't pursue" policy. President Clinton has claimed that that policy is less restrictive on gays in the military than past policies had been.

The Pentagon, however, said it had not made a "definite decision" on when to begin. There have been indications that the Pentagon may not actually issue orders until after Congress completes action in the next few weeks on measures to ratify the new compromise.

Defense Secretary Les Aspin, in a statement noting that he was "very pleased," said his department hopes to "have in place soon the new U.S. policy . . . which focuses on conduct rather than status."

Rules still secret

Specific rules to guide military commanders on how to enforce the policy have been written, according to the Justice Department. Those regulations, however, have not yet been made public.

Mr. Clinton, who promised as a candidate last year to end the military's long-standing ban on gays, refused to go that far once in office. He ordered a study that led to a compromise disclosed on July 19. These are its broad outlines:

* Soldiers or sailors will be discharged for having homosexual sex or for admitting they are gay. Saying one is gay, visiting a gay bar, reading a gay magazine or marching in a gay rights parade can be viewed as proof of a "propensity" for homosexual sex, leading to discharge.

* Military unit commanders are given broad new discretion to start investigations, if a fellow soldier or sailor reports suspicion that someone is gay.

* Individuals seeking to join the military generally will not be asked whether they are gay. This is the only part of the new policy not legally binding on commanders.

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