Navy Lt. Richard Dirk Selland won a reprieve in U.S. District Court in Baltimore yesterday from the military's two-year attempt to boot him out of the armed services for admitting he is gay.
Judge Joseph Young granted Lieutenant Selland an injunction that prevents the Navy from discharging him tomorrow. Judge Young ordered the Navy to keep Lieutenant Selland on active duty for six months pending a trial on his allegations of discrimination. No trial date has been set.
Lieutenant Selland, 26, who is from Salisbury, is challenging the Clinton administration's new "don't ask, don't tell" policy that allows gays and lesbians to serve in the military if they do not disclose their sexual orientation.
On Jan. 23, 1993 -- the day after Bill Clinton became president -- Lieutenant Selland told his superiors of his gay status. He was serving aboard the USS Hammerhead in Norfolk, Va., as a supply officer overseeing a $1.5 million budget for submarine parts and other supplies.
Lieutenant Selland said he found himself the butt of several anti-gay jokes. One officer opened a closet door and said, "Dirk, you can come out now. Clinton won."
Lieutenant Selland said his struggle "with the situation aboard the ship" and his belief that the military's ban of homosexuals would soon be lifted by the new president prompted him to confess his sexual status to a chaplain.
Together they told the ship's commanding officer, who promptly "booted [Lieutenant Selland] off the submarine," and assigned him to shore duty, said Hank Hockeimer, his lawyer.
The Navy began discharge proceedings against him under the military's old policy barring homosexuals from serving in the armed forces.
A court injunction in 1994 and a settlement in a discrimination lawsuit filed by Lieutenant Selland kept him in the Navy.
But the justice department is now making a second attempt to fire him, based on the "don't ask, don't tell" policy, adopted by Congress and the Clinton administration in 1994 that allows gays to serve in the armed forces if they don't reveal their sexual status.
Judge Young based yesterday's injunction on the belief that Lieutenant Selland was denied his individual rights of due process during a Navy Board of Inquiry hearing in Norfolk in July, 1994. At the time, one of the officers voting to discharge Lieutenant Selland admitted he would have difficulty serving with gays in the military.
Although Judge Young was not deciding the merits of the case yesterday, he did say, "it seems clear to me that an individual cannot be discharged due to homosexual status, but may be discharged due to homosexual acts."
During a hearing Mr. Hockeimer said his client "is being penalized for something he said. That's a violation of the First Amendment."
"They're kicking him out of the Navy simply for something he's said, not for anything he's done. He's a solid and decent officer and should remain in the Navy."
Lieutenant Selland, who has served in the Navy for five years, now works on shore in Norfolk as the deputy director of procurement for the Fleet and Industrial Supply Center, where he supervises 80 employees.
In an interview after yesterday's hearing, Lieutenant Selland said he maintains a good relationship with the people he works with even after his legal wrangle over his sexual preference became widely known.
In arguing the government's case against Lieutenant Selland, Justice Department lawyer Joseph Lobue said that while many gays in the military have been decorated, the presence of homosexuals "might polarize" a military unit and place it at risk during war.
Lieutenant Selland's case is the third challenge to the Clinton administration's new policy concerning gays in the military to be heard this year in federal court.
Last month, a federal judge in New York ruled that the new policy is unconstitutional and accused Congress and the Clinton administration of caving in to "irrational prejudices" against homosexuals. That decision, however, only affects the six service members who filed the suit and is not binding on the Baltimore case.
However, Mr. Hockeimer, Lieutenant Selland's lawyer, said he will use the New York decision in arguing his client's case.
Earlier this month, a gay petty officer in Washington state was discharged from the Navy after he failed to win an injunction from a federal appeals court in San Francisco. That officer, Machinist's Mate 2nd Class Mark Philips, admitted he had sex with men.
Mr. Hockeimer said the Washington state case differs from the New York and Baltimore cases in that Petty Officer Philips admitted to having sex with men, while his client and the plaintiffs in the New York suit simply admitted their homosexual orientation.
Earlier this month, House Speaker Newt Gingrich said Congress would seek to overturn President Clinton's "don't ask, don't tell" policy and revert to the previous regulation that prohibits gays and lesbians from serving in the armed forces.