Court upholds military discharges for gay sex Judges cannot interfere in services' decisions, appeals panel rules

September 24, 1998|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON -- Because the courts cannot interfere in military life, a federal appeals court ruled yesterday, the armed services are free to discharge gays and lesbians for engaging in sex acts that would not be challenged if engaged in by heterosexuals.

The ruling rejected the broadest constitutional attack yet on President Clinton's "don't ask, don't tell" policy, which restricts the right of homosexuals to remain in the military.

That policy, worked out by the Pentagon in 1993, was endorsed by Congress in 1994. It allows homosexuals to remain in the service only if they do not engage in homosexual acts and do not acknowledge that they are homosexual.

"We cannot say that the reliance by Congress on the professional judgment and testimony of military experts and personnel that those who engage in homosexual acts would compromise the effectiveness of the military was irrational," the three-judge court panel of the 2nd U.S. Circuit Court of Appeals said.

Relying on "the special respect accorded to Congress' decisions regarding military matters," the court said, "we will not substitute our judgment for that of Congress."

It refused to accept or reject the complaint of gay rights advocates that the policy is intended to cater to the anti-gay prejudices of other members of military units.

Though noting that the Supreme Court had ruled that "irrational fear and prejudice" cannot be used to justify treating people differently, the appeals court said those rulings came in cases that "did not arise in the military setting."

Evan Wolfson, senior staff attorney for the Lambda Legal Defense Fund, a gay rights advocacy group that filed the case on behalf of six gay service members, said the ruling amounted to "a very disappointing abdication of the court's responsibility," based on "a toothless review" of military policy. He said his group was studying whether to appeal the decision to the Supreme Court.

Wolfson conceded that the court had not used harsh language in its opinion that would "do harm to people."

The Clinton administration, which has defended the policy, had no immediate comment on the ruling last night.

Before yesterday, all the court victories for the Pentagon's policy had been on a narrower basis: that military discharge for publicly admitting homosexuality did not interfere with gays' rights of free speech and did not violate the Constitution's ban on discrimination. The Supreme Court has refused to review that type of ruling.

This time, the appeals court confronted the core of the Pentagon policy -- a flat ban on "homosexual acts" that applies only to gay or lesbian couples who engage in such acts. It found that the military's explanation for that differing treatment was sufficient to satisfy the Constitution.

The appeals court cited testimony before Congress by Gen. Colin Powell and Gen. Norman Schwarzkopf that having "an open homosexual in small [military] units" would lead to a destruction of the bond needed between fighting forces, since other members of the unit would view homosexuality as a threat to their privacy or sexuality.

"It was rational for Congress to credit the testimony of these military officers and defense experts," the court declared.

The court accepted the Pentagon view -- endorsed by Congress -- that the ban on homosexual conduct would interfere with the military's mission because "regulation of homosexual conduct is necessary to unit cohesion and the military mission."

Gay rights groups had challenged the ban, saying it requires that "lesbians and gay men alone abstain from intimate relationships and affectionate conduct."

Much of the court's 23-page opinion was devoted to a discussion of Supreme Court rulings that have treated the military as a separate society in America, and thus beyond the normal review of its actions in the courts.

"We are required to give great deference to congressional judgments in matters affecting the military," it said. Those who wrote the Constitution, it added, "did not view the federal judiciary as the appropriate body to exercise military authority and therefore gave the judiciary no influence over either the sword or the purse."

Pub Date: 9/24/98

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