Gay sailor's reinstatement is upheld Appellate ruling sets stage for likely Supreme Court test

September 01, 1994|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- Setting the stage for a likely Supreme Court test on gays in the military, a federal appeals court ruled yesterday that gay men or lesbians may be discharged for saying they are homosexual but only when that shows a "concrete, fixed desire" to engage in homosexual acts.

Merely saying "I am gay" cannot be the basis for a discharge from the military, the 9th U.S. Circuit Court of Appeals in San Francisco stressed.

Ruling on one of the most celebrated legal fights over gays in the military, the Circuit Court told the Navy that it may not oust Petty Officer V. Keith Meinhold solely because he had said on a television news program in 1992: "Yes, I am in fact gay."

But the decision did not protect Petty Officer Meinhold from being discharged if the Navy could now offer proof that he clearly has an explicit desire to have sex with another man in violation of Navy rules banning homosexual conduct.

Petty Officer Meinhold, in a telephone interview from San Diego, said the decision gave him what he wanted: a chance not only to stay in the Navy but also legal help for "other gay and lesbian service members to retain their careers as well." The 32-year-old sailor from Stuart, Fla., said his combat aircraft crew recently received a unit citation, adding proof to his argument to the Navy that "things are going well with my co-workers" who are not gay.

His lawyer, John I. McGuire of Los Angeles, said yesterday's ruling means that the Navy can take no action against the sailor based on assumptions about what he meant in saying that he was gay.

The Circuit Court's decision was the eighth by a federal court in the past 20 months to say that a service member's mere statement that he or she is gay is not enough to justify discharge. The Meinhold case is further along in the judicial process than other cases and could reach the Supreme Court first.

There was no word last night on whether the Justice Department would appeal that case to the Supreme Court. A spokesman said the department was considering its options.

Yesterday's ruling may have an impact on other pending cases, including the lawsuit by former Naval Academy midshipman Joseph C. Steffan challenging his ouster for saying he was gay. The Steffan case is awaiting a ruling by the U.S. Circuit Court of Appeals here. The Meinhold decision also may put President Clinton's current "don't ask, don't tell" policy on military gays under a legal cloud

In the Meinhold case, the Circuit Court did not strike down the Navy rules that led to his discharge but indicated strongly that it would have done so if it had not interpreted them in a narrow way for a discharge based on a statement about being gay. The decision was limited, technically, to the Meinhold case.

Under the Clinton policy, in force since February, homosexuals face discharge if they make a statement that "demonstrates a propensity or intent to engage" in homosexual acts. If a service member says simply that he or she is gay, that will be taken to be a sign of the propensity or intent to have gay sex -- unless the service member can offer evidence disproving that.

The new policy was not under challenge in the Meinhold case. His discharge was based on Navy rules no longer in effect.

The Circuit Court, while saying it was voicing no opinion on the new policy, did indicate that basing a military discharge solely on a "propensity" to engage in homosexual acts could be unconstitutional. "Equating . . . propensity with conduct or acts that are prohibited is problematic" under the Constitution, it said.

It suggested that there is a constitutional difference between "desires of the daydream variety and fixed intentions" to do something that is forbidden. The military, it said, is free to discharge gays who say they are homosexual only if that reflects something more than a nonspecific propensity or desire.

Marc Wolinsky, a New York City lawyer who represents former Midshipman Steffan, said the Meinhold ruling "means the same thing for the new [Clinton policy] regulations" as it did for those under which the Navy acted against Mr. Steffan and Petty Officer Meinhold. Mr. Wolinsky said the new policy is based on the same premise as the old: that "saying you're gay is enough for a discharge."

Mr. Steffan was dismissed from the Naval Academy in 1987, just six weeks before he was to graduate. He told a superior officer, when asked, that he was gay.

Petty Officer Meinhold, a 14-year Navy veteran, was discharged after stating that he was gay on an ABC-TV news broadcast. He has continued in the Navy under a federal judge's 1993 ruling in his favor and is stationed in Anacortes, Wash.

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