High Court Lets Military’s Ban on Gays Stand

The military may discharge acknowledged homosexuals even without evidence that the service personnel in question committed homosexual acts, according to two rulings that the Supreme Court let stand Monday.

The decisions uphold the Defense Department’s strict policy that says “homosexuality is incompatible with military service” and allows for the removal of gays if they acknowledge a “propensity” to commit homosexual acts.

In dismissing appeals from two homosexuals Monday, the high court showed again that it does not consider discrimination based on sexual orientation to be a violation of the Constitution’s guarantee of “equal protection of the laws” for all.

It also blunted a gay legal effort that had produced lower court rulings undercutting the prohibition in several other cases.

“The court decision doesn’t mean that the issue is over,” said Peri Jude Radecic, a leader of the National Gay and Lesbian Task Force. She said the next plan of attack was to rally sympathetic congressmen to pressure the Pentagon to change the “deeply irrational policy.”

In recent decades, the court has said discrimination based on race, national origin or gender is unconstitutional, but it has refused to extend this protection to cover sexual orientation. As a result, government officials may discriminate against homosexuals so long as they can furnish some reason for doing so.

In 1982, in response to criticism from gay rights groups, the Defense Department issued a policy stating that excluding homosexuals from the military would help “maintain discipline, good order and morale . . . foster mutual trust and confidence among service members, (would) maintain the public acceptability of military service and . . . prevent breaches of security.”

In several lawsuits, gay servicemen and women have challenged this policy as irrational and a violation of the equal-treatment guarantee.

Two years ago, a federal appeals court in San Francisco, in what was seen as a landmark ruling, said it was unconstitutional for the Army to exclude homosexuals. But this decision, in the case of Sgt. Perry Watkins, was reconsidered by the full appeals court and is still pending.

For its part, the Supreme Court has been distinctly unsympathetic to homosexuals’ appeals. In 1986, the court ruled 5 to 4 that states may prosecute homosexuals for sodomy. On other occasions before Monday, the court has refused even to hear an appeal from a homosexual in the military.

Nevertheless, lawyers challenging the military’s ban hoped the Supreme Court might hear appeals of two service personnel who were discharged for their sexual orientation alone, not for evidence of homosexual acts.

For 14 years, Miriam Ben-Shalom, a Wisconsin woman and an admitted lesbian, has been fighting to stay in the Army Reserve. She was first discharged in 1976, but a federal judge ordered her reinstatement. But the Army continued its effort to remove her.

Last year, a three-judge appeals panel in Chicago finally ruled against her, saying it would not “second guess” the military on this issue.

“If a change of Army policy is to be made, we should leave it to those more familiar with military matters than are judges,” the appeals court said (Ben-Shalom vs. Marsh, 89-876).

Although admitting that the Army had no evidence that Ben-Shalom had committed homosexual acts, the appeals court said her admission that she is a lesbian is enough evidence to remove her.

James M. Woodward, who now lives in Spring Valley near San Diego, also has fought a long battle to be reinstated. In 1972, he enlisted in the Navy’s flight training school but was discharged two years later on the grounds that he admitted to being “homosexually oriented.” He filed a claim against the government contending that his constitutional rights had been violated. But an appeals court in Washington ruled last year that discrimination based on sexual orientation does not violate the Constitution (Woodward vs. U.S., 89-314).

The justices turned down both appeals without comment Monday.

“I’m disappointed. I felt the military policy was wrong and it should be challenged,” Woodward said by telephone Monday.

Woodward, who said he now works for San Diego County, said lower-level military personnel are accepting of homosexuality.

Staff writer Douglas Jehl contributed to this story.