Limits sought on ruling shielding gays in military Administration pleads case before Supreme Court

WASHINGTON — WASHINGTON -- The Clinton administration asked the Supreme Court yesterday to put strict limits on a federal judge's power to protect gays in the military and sought permission to put the president's broad new policy on gays into effect almost immediately.

The Justice Department urged the justices to narrow the sweeping month-old order of a Los Angeles federal judge, Terry J. Hatter Jr., so that it would protect only one individual -- Navy Petty Officer V. Keith Meinhold -- from being discharged because he is gay.


That way, Petty Officer Meinhold could stay in the Navy while his constitutional challenge works its way through the courts and the Pentagon could start enforcing Mr. Clinton's compromise plan that would allow only gays who keep their sexual preference secret to remain in uniform, the department said.

In its plea, the administration said the commanders of the nation's military forces face "grave uncertainty" over the Hatter order because it bars Pentagon action based on homosexual status against any sailor and soldier.


Accusing Judge Hatter of threatening to set himself up as "a specialized tribunal" for managing specific military personnel decisions throughout the world, the department said the Pentagon cannot enforce any policy -- past or future -- against gays unless the Supreme Court steps in now.

Even if a U.S. military unit came under fire in overseas hostilities, the department argued, the commander of that unit could not transfer out a gay member who had engaged in gay sex in a way that the commander thought threatened the unit's "safety and readiness."

Judge Hatter issued his wide-ranging order Sept. 30, and the administration tried unsuccessfully to get a federal appeals court to block it. For more than two weeks, the government has been debating internally whether to go to the Supreme Court with a plea for "emergency" action.

That plea was made yesterday afternoon, 18 days after the appeals court in San Francisco voted to temporarily leave Judge Hatter's order in effect. Yesterday's government plea did not explain the lapse of more than two weeks before the Supreme Court was asked for the kind of help that the government usually seeks much more swiftly.

But it has been clear that some Justice Department officials and lawyers had been resisting the Pentagon on taking the next legal step. White House lawyers then got involved, resulting in the plea made before the Supreme Court yesterday by the government's top lawyer, Solicitor General Drew S. Days III.

If the Supreme Court does not modify the Hatter order, the military would not have any significant gays policy for several more months.

But if the court does act, the Justice Department argued, a new compromise policy worked out last summer by the White House and Pentagon civilian and military leaders could be put into effect swiftly. The rules for that have been written, the department told the court.

Moreover, it argued, the military should be allowed to go ahead with the 115 cases in which it is seeking to discharge gays. All 115 are on hold because of Judge Hatter's order.


Judge Hatter, the department's plea complained, has created a policy of his own, "broad and ambiguous" in scope. As a result, "it is virtually impossible to manage an organization as huge as the Department of Defense" without "clear rules" for regulating the behavior of "large numbers of people," it said.

The department's plea was sent to Justice Sandra Day O'Connor, who handles emergency legal matters for the area where Judge Hatter sits. But it seemed likely that she would refer the issue to the full court for action.

The new maneuver drew an immediate protest from a gay rights group, the National Gay and Lesbian Task Force. Its spokesman, David M. Smith, said: "We consider this hostile action antagonistic to gay and Lesbian Americans." Noting that as a candidate Mr. Clinton had vowed to end the military's policy against gays in uniform, Mr. Smith said the administration now "sacrifices a principled position to political expediency."

The compromise policy that the administration now wants to implement was finally worked out on July 19. It has since won approval in both houses of Congress and is expected to be written into binding law within the next few weeks.

But the administration told the court yesterday that it would not wait for final action by Congress to put the compromise into effect, if the Supreme Court would permit it.