Court to be asked to save gay policy L.A. judge blocks military accord

WASHINGTON — WASHINGTON -- After days of high-level discussions, the Clinton administration decided yesterday to ask the Supreme Court to reinstate the gays-in-the-military policy rather than let it go unenforced for months while court battles go on, a senior government official disclosed last night.

U.S. District Judge Terry J. Hatter Jr. of Los Angeles scuttled the policy late last month, and the Pentagon has had no policy in effect for nearly three weeks while it pondered what to do next.


The senior official here, who refused to be identified, said the government felt it had a duty to seek permission promptly to put the program back into effect because "we made the deal" -- a reference to negotiations between civilian and military officials that led to a compromise approach last summer.

But the court will not be approached until early next month, when Congress is expected to write the compromise into binding law as part of the Pentagon budget bill, the senior official said. Once Congress ratifies the policy, the official added, that would put the administration on more solid legal ground in asking the justices to step in.


Under the "don't ask-don't tell" compromise that had been due to go into effect Oct. 1, service men and women would not be automatically discharged if they did not reveal publicly that they are homosexuals, or if they did, if they then proved that they actually are not.

The government made no official announcement of its final decision to seek "emergency" help from the Supreme Court, but the senior aide made clear that the matter was settled after talks that had begun last Friday and had continued intermittently since. Those talks involved top lawyers from both the Pentagon and the Justice Department, as well as key presidential aides at the White House.

Kathleen deLaski, Pentagon spokeswoman, told reporters there yesterday that her agency was "still conferring" with the Justice Department but that a decision for or against going to the court was about to be made.

She insisted that the discussions had stretched over several meetings because the California judge's order was "very complicated," creating "a complicated set of problems" for military officials trying to find ways to obey it while they go to higher courts with a formal appeal. But the appeal is not likely to be settled until early next year, at the soonest.

Although Ms. deLaski said she did not think the question of going to the Supreme Court had created any controversy within the government, that was disputed by an outside legal adviser who has been consulting directly with key aides taking part in the official talks. That adviser, who spoke on condition of anonymity, said "there is resistance, absolutely" from Justice Department attorneys to the idea of going to the Supreme Court at this stage.