'Don't ask, don't tell' is upheld U.S. appeals court rejects challenge from ex-Navy officer

Next step, Supreme Court

Ruling of 4th Circuit says gays in military is a political issue

April 06, 1996|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON -- In a nearly total refusal to second-guess the military, Congress and the White House, a federal appeals court yesterday upheld the constitutionality of the "don't ask, don't tell" policy that bars known homosexuals from the armed forces.

The 4th U.S. Circuit Court of Appeals in Richmond, Va., the highest court so far to rule on the emotional dispute, said it felt its power to review the policy was strictly limited because military issues essentially are for Congress and the White House handle.

Its ruling, by a 9-4 vote, set up the first opportunity for gay rights lawyers to take the dispute on to the Supreme Court.

No action by the Supreme Court, however, is likely for perhaps a year, even if yesterday's ruling is challenged in a swift appeal.

The appeals court, noting that the policy on gays in the military was "a carefully crafted national political compromise" between President Clinton and Congress in 1993, said in its main opinion: "This considered judgment is one that [the judiciary] has a solemn duty to respect."

The "best service courts can render," the appeals court said, is to return the controversy to the political branches of government.

The policy, the Clinton administration has claimed, allows some homosexuals to remain in the service, only if they don't acknowledge that they are gay or lesbian or are not discovered to be so.

If they do concede they are homosexual, they must then persuade their commander that they in fact are not. In effect, only a homosexual not identified as such can avoid discharge.

As a candidate, Mr. Clinton promised to end the military's long-standing ban on any homosexuals in the military. But he changed his mind after his promise ran into heavy opposition within the military and in Congress.

Former Navy Lt. Paul G. Thomasson, whose discharge in June was upheld by yesterday's ruling, said in an interview that the policy on homosexuals "is not about conduct; it's about prejudice."

The ruling, he argued, requires service members who acknowledge being gay to "prove a negative" -- that they are not gay.

"It's like telling the police, 'I have a sports car,' and then trying to prove you don't speed," he said. "This [policy] is a prohibition on speech."

Mr. Thomasson, 33, who now works for a private company here, was discharged after he told his superior officer that he is gay.

His boss, who was the Navy admiral in charge of administering the Navy's policy on homosexuals, strongly defended Lieutenant Thomasson's service record.

But the lieutenant was discharged because he refused to offer evidence that he was not gay after saying that he was.

The White House and Justice and Defense departments had no comment on yesterday's ruling.

Mr. Thomasson's attorney, Allan B. Moore of Washington, said, "It was our expectation when we set out that the Supreme Court ultimately will have to decide these issues."

But he said he had not yet decided on the timing or nature of an appeal to the justices.

If Mr. Moore takes the full three months allowed to file a Supreme Court appeal, the justices would take no action on it until next fall.

Yesterday's ruling was based on a somewhat contradictory mixture of legal theories and voting patterns among the judges.

The nine judges voting to uphold the policy said in one opinion that the policy was constitutional because Congress was entitled to assume that saying "I am gay" or "I am lesbian" is the same as confessing to a tendency to engage in prohibited homosexual sex.

Because such sex may be banned, conceding a tendency toward such conduct can be banned, too, and also lead to discharge, that opinion said.

Applying the most permissive constitutional test to the policy, the nine judges declared that those who crafted it were "certainly entitled to presume that a service member who declares that he is gay has a propensity to engage in homosexual acts."

The policy's authors, that opinion said, were legally justified in fearing the prospect of "same-sex attractions" within military units, causing "sexual tensions and attractions" that "could play havoc with a military unit's discipline and solidarity."

But in a separate opinion, six of those same nine judges said they rejected the idea that the policy was aimed only at homosexual acts or tendencies. What Congress enacted, they said, goes further, banning homosexuals from service just "because they are homosexual," not because of any acts or tendency to act.

Those six went on to say that the more far-reaching ban also was constitutional. Those judges accused the Clinton administration's lawyers of misleading the court about the scope of the policy, in order to be able to claim that some known homosexuals who remain quiet may stay in the service -- a "politically expedient fiction," as those judges labeled it.

Among judges voting to uphold the policy were two from Baltimore, Francis D. Murnaghan Jr. and Paul V. Niemeyer. They joined the main opinion, not the one that six of their colleagues also signed.

Judge Murnaghan also wrote a brief separate opinion saying that the court should have upheld the policy with little discussion.

Judge Diana Gribbon Motz of Baltimore was one of the four dissenters.

The dissenters said the case was only about Lieutenant Thomasson's behavior, not about the behavior of any other members of the service. As to him, they said, he had been discharged unconstitutionally for something he said.

Those judges also asserted that the policy had been enacted out of "a desire to accommodate prejudice against homosexuals."

Whatever the grounds of the majority ruling, the result was clear: The "don't ask, don't tell" policy had survived its first challenge in a court just below the Supreme Court level, thus moving it closer to a final test.

Two other appeals courts, in New York and San Francisco, are also considering constitutional challenges to the policy.

Pub Date: 4/06/96

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