Court orders test of gay ban in military Former Navy officer appeals to Supreme Court

July 02, 1996|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON -- A federal appeals court yesterday ordered a federal judge to hold a wide-ranging trial to test the authority of the military to discharge those who engage in homosexual acts.

The 2nd U.S. Circuit Court of Appeals in New York City said that if such authority survived constitutional challenge, the military would be able to oust homosexuals merely for saying they are gay or lesbian.

The appeals court said a judge must face the broader question first: whether the military discriminates against gays and lesbians by discharging them for engaging in sex, even though heterosexual service members do not face discharge for doing so.

As the appeals court set the stage for a new test of the Clinton administration's "don't ask, don't tell" policy, another constitutional challenge to that policy arrived at the Supreme Court in an appeal by a former Navy lieutenant.

The appeal, filed yesterday by Paul G. Thomasson, who was discharged after telling his superiors of his homosexuality, could provide the Supreme Court with its first chance to rule on any aspect of the administration's policy.

Thomasson's appeal, however, does not raise all the constitutional issues that the appeals court in New York said must now be tried before a federal judge in Brooklyn. The administration policy, put into effect two years ago as a compromise between the White House and Congress, requires that service members be discharged if they engage in homosexual acts, or have a "propensity" to do so. Under the policy, someone who has a homosexual "orientation" but does not act it out may be able to remain in the service.

In March 1995, a federal judge in Brooklyn ruled that it was unconstitutional to discharge military service members for saying they are gay or lesbian. The judge declined, however, to rule on whether it is unconstitutional to discharge homosexuals for engaging in sex acts. The judge must now face that issue, the appeals court declared.

The appeals court also said the judge was wrong to strike down the policy that uses someone's statements as a basis for discharge. That policy, it ruled, is constitutional -- but only if the ban on homosexuals for their acts survives the constitutional trial.

Pub Date: 7/02/96

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