Military policy on gays invalid, U.S. judge rules


WASHINGTON -- A federal judge in New York, accusing the Clinton administration and Congress of giving in to "irrational prejudices" against homosexuals, ruled yesterday that it is unconstitutional to discharge military service members just for saying they are gay or lesbian.

The ruling by Judge Eugene H. Nickerson of Brooklyn against the "don't ask, don't tell" policy was the first on the constitutionality of the main features of a compromise worked out in 1993.

The judge's decision struck at the heart of the policy: a provision that allows homosexuals to remain in the service -- a change from a long-standing former policy that banned all homosexuals -- but allows them to remain only if they do not admit they are homosexual or if they can convince their commander that their admission of homosexuality was wrong.

That provision, Judge Nickerson said, "offers powerful inducements to homosexuals to lie."

Both gays and nongays in the service, he said, "would be entitled to think it demeaning and unworthy of a great nation to base a policy on pretense rather than on truth."

The decision set in motion a process that could put the case in the Supreme Court by late this year or early next year, with a final ruling as early as a year from now.

First, though, the Justice Department, acting as the Pentagon's lawyer, indicated it will appeal to a federal appeals court in New York City.

There have been signs that the appeals court will act promptly when it gets the constitutional dispute.

As a practical matter, Judge Nickerson's ruling was not a signal to homosexuals in the military that they could now disclose their status and be protected.

Although saying the key part of the policy was invalid, the judge ruled on the claims only of the six service members who filed the challenge -- a lesbian Army officer and five gay Army, Navy or Coast Guard officers or enlisted men.

Military commanders now can take no action against those six.

Beatrice Dohrn, legal director of a gay rights advocacy group, the Lambda Legal Defense and Education Fund, commented after the ruling: "We don't want people to read the paper and think they can come out tomorrow."

But she, along with other lawyers in the case from the American Civil Liberties Union, said they would continue challenging until the policy is finally voided.

Ms. Dohrn said yesterday's ruling was "a decisive setback" for the policy.

The Justice Department made clear that it, too, would carry on.

Said department spokesman John K. Russell: "We believe the challenged policy is constitutional and remain committed to defending it."

Pentagon public affairs director Kenneth Bacon told reporters that the ruling did not affect the policy's continued enforcement against others, and he vowed that military commanders would continue to enforce it.

If commanders do seek to discharge other homosexuals who say openly that they are gay or lesbian, however, their lawyers would seek to rely on the precedent set by Judge Nickerson, even though it is not technically binding on anyone but the six.

The "don't ask, don't tell" policy that faltered yesterday in its first significant courtroom encounter was put together after President Clinton had abandoned a campaign pledge to wipe out the half-century-old rules against retaining any homosexuals in uniform.

The old rules -- leading to tens of thousands of discharges -- had met mixed results in courtroom challenges until they were discarded in favor of the new approach.

The new version went into effect 13 months ago.

It is unclear how many homosexuals have been discharged under the new policy, but a study last month by the Servicemembers Legal Defense Network said the rate of homosexual discharges has remained the same.

Although the new policy completely rewrote military rules on homosexuality, Judge Nickerson dealt only with the part that permits the discharge of homosexuals who say they are gay or lesbian, either on their own or when asked by commanders acting on some evidence of homosexuality.

Striking that down, the judge denounced the policy's main features as Orwellian, Draconian, Byzantine and extreme.

He was especially critical of the policy's linkage of statements about being gay or lesbian with assumptions that those service members would commit "undesirable acts."

"Hitler," he wrote, "taught the world what could happen when the government began to target people not for what they had done but because of their status."

The judge also ridiculed the military for claiming that the policy was needed to protect the privacy of heterosexuals who would bTC not want to serve alongside gays.

Service members who are not gay, the judge said, "are not dunces or ostriches" and will realize that homosexuals are serving in the ranks because the new policy allows that.

Heterosexuals, the judge added, will not be misled into believing that their privacy will be guarded by a policy that succeeds only in forcing their homosexual comrades to conceal their homosexuality.

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