WASHINGTON -- President Clinton's policy on gays in the military may ultimately be upheld by the courts, but for now it is in deep legal trouble, and uncertainty over its future seems likely to last for months.
Just as the president appeared this week to be putting the issue behind him by getting his new policy through Congress, the gays policy was under attack from two federal judges -- one here and the other in California.
Justice Department lawyers have been going to court after court for weeks to defend the Pentagon against a variety of constitutional challenges by gay soldiers or sailors. Those challenges aim at the old Pentagon policy, the "interim" Clinton policy now in effect throughout the military, and the new Clinton policy that was to go into effect yesterday but now is postponed for perhaps two weeks.
Last night, department attorneys went to the 9th U.S. Circuit Court of Appeals in San Francisco with a new appeal seeking temporary permission for the Pentagon to continue acting against uniformed gays.
That appeal will challenge the most sweeping order ever issued by a federal judge against the military for its treatment of gay or lesbian soldiers because of their status as homosexuals.
In that order, U.S. District Judge Terry J. Hatter Jr. of Los Angeles blocked all of the Pentagon policies -- past, present and future -- and backed it up with a threat of contempt fines of at least $10,000 a day against top Pentagon officials if they disobeyed.
In January, Judge Hatter struck down the old policy and told the Pentagon not to discharge any gays under that policy.
On Thursday, the judge barred the military from taking "any action whatsoever" against gays solely because of their sexual orientation. He has allowed the military to act against a soldier who engages in homosexual conduct, but only if that conduct actually interferes with a military mission.
The Los Angeles judge has treated his commands to the military as nationwide in scope, and at least one other federal judge has viewed the actions that way, too.
Louis F. Oberdorfer, a senior U.S. District Court judge here, barred the Navy on Tuesday from discharging a submarine officer who had admitted he was gay after hearing Mr. Clinton say he would act to protect gays in the military.
New 'law of the land'
Judge Oberdorfer said Judge Hatter had established "the law of the land" for the time being against punishing gays in the military and ridiculed all of the main legal arguments the Pentagon has made to defend its treatment of gays.
Within a matter of weeks, a three-judge panel of the U.S. Circuit Court of Appeals here is expected to rule on the legality of the Naval Academy's 1987 ouster of Midshipman Joseph C. Steffan after he revealed, shortly before graduation, that he was gay.
The outlook for that decision is not promising for the Pentagon. The three most liberal judges on the Circuit Court here are handling the Steffan case, and their questioning of Justice Department lawyers at a hearing last month hinted that they were leaning toward striking down the discharge, perhaps raising serious constitutional doubts about the gays policy overall.
Although the Supreme Court has said repeatedly that courts should not second-guess too closely the choices the military makes about its own activities, that has not deterred lower court judges from refusing to take as binding the military's word on the need for an anti-gays policy.
Both sides predict success
Justice Department and Pentagon lawyers have repeatedly voiced confidence that they will win in the end, when one or more key cases finally reach the Supreme Court, probably sometime next year. Lawyers for gay soldiers and sailors, of course, do not share those predictions.
Whatever the outcome, all of the policies are under a cloud in the meantime.
Mr. Clinton has insisted that his new approach would allow gays to remain in the military -- so long as they remain celibate.
Groups and individuals favoring the historic ban in its strongest form generally agree that the new presidential policy is a relaxation.
Ronald D. Ray, a Louisville, Ky., lawyer, military historian and Army Reserve legal officer who worked in the American Security Council's campaign to keep the old ban, said the new policy "does represent a change." And, he said, "it will be treated as a relaxation because of the political position of the president and [Defense Secretary] Les Aspin in favor of having homosexuals in the military."
Civil liberties and gay groups that oppose any ban on gays in uniform argue that Mr. Clinton's policy represents no significant change. "None of it is any different, to tell the truth," says Beatrice Dohrn, an attorney for the gay rights legal group Lambda Legal Defense Fund, who has been involved in lawsuits against all forms of a gay ban.
What appears to be beyond debate about the new policy is that key members of Congress -- especially Senate Armed Services Committee Chairman Sam Nunn -- have extracted promises from Pentagon officials not to apply the new policy too liberally toward gays who publicly admit their homosexuality.
While White House officials earlier said that single incidents of referring to one's gay status, going to a gay bar, reading a gay magazine or marching in a gay rights parade would not qualify as "conduct" leading to discharge, Pentagon officials changed course when appearing before Mr. Nunn's committee. Each such incident now could be read as proof of conduct, it appears.
But, whether or not the policy is being relaxed, the constitutional issue that occupies the court remains the same: Does the military have the authority to act against a gay person solely because of sexual orientation, when it does so by arguing that allowing gays would destroy unit cohesion?
Ms. Dohrn of the Lambda group commented: "We're very happy that the debate has moved away from being about the ability of gays to serve to being about prejudice. The government is asking the courts to defer to prejudice in the military; that is PTC more likely to stick in a judge's craw" than asking the court to defer to military policy.
On the other hand, Mr. Ray, the American Security Council adviser, says the issue in the courts should not focus on questions of discrimination, but upon "disqualification."
He says that, if the courts properly took military judgment into account, they would realize that the American military has always "screened out those with particular patterns of behavior" believed unwelcome in the ranks.
THREE POLICIES ON GAYS
The legal and political fight over rules for gays in the military now focuses on three versions of policy:
OLD POLICY (still applies to gays who are fighting discharges in court):
* Soldiers who engage in homosexual sex or have "a propensity" to do so must be discharged, unless they can prove they are not homosexuals. An admission of a homosexual "orientation" proves propensity" for homosexual conduct.
* New recruits are asked if they are gay.
* Unit commanders have wide discretion to investigate suspicion of homosexuality.
INTERIM POLICY (issued by President Clinton in January; in effect for all the military services until a new policy takes effect):
Same as old policy, except:
* Those who say they are gay but have not had homosexual sex are put in unpaid "standby reserve" instead of being discharged.
* New recruits are not asked if they are gay.
NEW POLICY (announced by Mr. Clinton on July 19 and approved by Congress this week with some changes; may go into effect in about two weeks when the Pentagon issues specific guidelines):
* Returns to policy of discharging soldiers for having homosexual sex or for admitting they are gay. Specifies that saying one is gay, visiting a gay bar, reading a gay magazine or marching in a gay rights parade can prove "propensity" for homosexual sex.
* Unit commanders assured of broad new discretion to start investigations, if a fellow soldier reports suspicion that someone is gay.
* Decision not to question recruits about homosexuality could be abandoned in the future; it is not written into new law.