Judge halts military ouster of 6 gays

April 05, 1994|By Lyle Denniston LTC | Lyle Denniston LTC,Washington Bureau of The Sun

WASHINGTON -- A federal judge in Brooklyn, N.Y., expressed doubt yesterday that the military would be harmed by having homosexuals in its ranks and temporarily stopped the Clinton administration from discharging six gays now in uniform.

Judge Eugene H. Nickerson became the first federal judge to act on the administration's new policy regarding gays, which took effect Feb. 28, and on the 1993 law that Congress passed to support that policy.

This marked the sixth time in the past year that a federal court has stopped the military from discharging service members because they are gay.

The five previous rulings involving restrictions on gays have been replaced by the administration.

Administration lawyers have argued that the new policy is more tolerant of gays remaining in the service, so long as they do not engage in homosexual acts and do not even say that they are homosexual.

The policy, called "don't ask, don't tell, don't pursue," is aimed at homosexual behavior, not at the abstract idea that individuals may think of themselves as gay or lesbian, those lawyers have said.

Accused homosexuals, they add, may remain in uniform if they prove -- when challenged -- that they are not homosexual.

But Judge Nickerson noted in a 25-page opinion that the policy requires the discharge of those found to have merely "a propensity" to engage in homosexual conduct. "To invite someone to prove that he or she does not have an inborn tendency seems like a hollow offer," the judge wrote.

Judge Nickerson did not issue a final ruling. His ban on disciplinary action by the Pentagon against gays is limited to protection for the six individuals who filed the constitutional challenge and is to stay in effect until he makes a final ruling.

He also stressed that he was not ruling now on the constitutionality of the new policy. But a number of remarks in his opinion emphasized that the policy raises what he called "serious" questions under the Constitution about the free-speech rights of gays and their right to equal treatment.

The judge said the "allegedly new policy," just like prior policies, treats homosexuals differently from heterosexuals in the military.

Three of the six people involved in the case are on active duty. The others are in reserve units. Two are from California, two from the New York City area and one from Washington state. No residency was disclosed for the sixth person.

One of the six, Coast Guard Petty Officer Robert S. Heigl, who is serving on Governor's Island in New York harbor, has been threatened by his commander with disciplinary action since he identified himself as gay by joining in the lawsuit.

Judge Nickerson noted that fact, and said it appears that the service members involved could "not even petition this court and litigate this case" without running the risk that the policy will be used to discipline and perhaps discharge them.

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