Court Rejects Exclusion of Homosexuals by Army : Military: Federal judges rule that the validity of a 48-year ban on gays and lesbians must be proved.

A federal appeals court Monday rejected the U.S. Army’s blanket policy of excluding gays and lesbians and ruled that the military must prove it has a “rational basis” for its 48-year-old ban on homosexuals.

The ruling has potentially sweeping dimensions because the U.S. 9th Circuit Court of Appeals said it would not accept anti-gay prejudice as a valid reason for exclusion from the armed forces. The decision stemmed from the discharge of Army Capt. Dusty Pruitt after she disclosed during a 1983 interview with The Times that she was a lesbian.

Historically, the government has cited the unwillingness of military personnel to serve with gays or take commands from them as primary reasons for excluding them. Pentagon policy states that the presence of homosexuals could damage discipline and morale, interfere with the system of rank and command and harm military recruitment and security.

Gay rights and other civil liberties groups hailed the unanimous decision by the three-judge panel. The ruling, said Paula Ettelbrick of the Lambda Legal Defense and Education Fund, could pave the way to end the military’s policy of exclusion on the basis of sexual orientation.

If upheld, “this decision would apply to every lesbian and gay man in the military,” said Jon Davidson, staff counsel of the American Civil Liberties Union of Southern California.

Davidson also said the ruling could make it possible for gays and lesbians currently in the military, to “come out” without fear of being expelled from the armed services. Estimates of the number of gay military personnel vary widely, ranging up to 200,000 out of the 2 million members of the armed forces. Other branches of the military have bans on homosexuals that are similar to the Army’s.

“It’s clearly an important decision,” said UCLA law professor Kenneth Karst. He said the key question is “just how much the government will have to show” during further court proceedings to justify its policy excluding homosexuals.

“This panel of judges is signaling that it thinks the government will have to show significant justification for the discrimination,” Karst added.

The judges said past decisions upholding the military’s policy were based, in part, on acquiescing to the prejudice of others. That rationale was undermined by a 1984 Supreme Court decision, which said that social disapproval of an interracial marriage did not justify denial of child custody by Florida authorities.

“Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect,” the Supreme Court said, and that language was cited by the judges Monday.

Appeals Court Judge William C. Canby Jr. said later rulings had made it clear that the same standard applied to other types of discrimination. Judges Betty B. Fletcher and Diarmuid F. O’Scannlain joined in the opinion.

A Pentagon spokesman said the Department of Defense would not comment because its lawyers had not reviewed the ruling.

This month, in response to a reporter’s question, Defense Secretary Dick Cheney defended the right of homosexuals to hold civilian jobs at the Pentagon, saying “their private lives are their business.”

However, Cheney said that given the unique aspects of military life he found nothing “fundamentally wrong” with the policy that makes homosexuality grounds for discharge from the uniformed services.

Additionally, Cheney responded “absolutely not,” when asked if he planned to ask for the resignation of one of his top civilian aides who had been identified as homosexual in The Advocate, a gay magazine.

Pruitt, 44, now working as a minister in Long Beach, served 13 years in the Army and the Army Reserve, training troops to defend themselves against chemical and biological weapons. During her first tour of duty from 1971-1975, she rose to the rank of captain.

Then, in the process of becoming an ordained minister at the Metropolitan Community Church in Los Angeles, Pruitt remained in the reserves and in May, 1982, was notified that she had been promoted to major, effective the following February.

However, Pruitt disclosed in a January, 1983, interview with the Times that she was a lesbian and had twice gone through ceremonies of marriage to other women. The Times article focused on Pruitt’s struggle to resolve personal contradictions between her religion and military career, and her sexuality.

On the basis of the article, the Army immediately suspended Pruitt’s promotion to major and a year later said it would revoke her security clearance. After a formal hearing, the Army gave her an honorable discharge in January, 1986.

Pruitt sued in April, 1983, contending that she had been improperly denied her promotion. But in April, 1987, U.S. District Court Judge William P. Gray dismissed her case, deferring to the Army’s position that the presence of homosexuals was incompatible with its mission.

But the appeals court said Gray must reconsider the case and require the Army to present specific justifications for its policy. Canby said the Army’s blanket policy of discrimination cannot be upheld “in the absence of any supporting factual record.”

The Times was unable to reach Pruitt for comment. However, lawyer Davidson said he spoke to Pruitt briefly and said she was “thrilled” with the ruling.

Pruitt did not win a total victory. The judges spurned her claim that her 1st Amendment free speech rights had been violated because her expulsion from the military stemmed from statements she made to The Times.

“Pruitt was discharged not for the content of her speech, but for being a homosexual,” said Canby’s opinion.

But the judges said the Army’s policy violated her rights to equal protection under the law as guaranteed by the Constitution.

The judges distinguished her case from several others, including one in which the 9th Circuit upheld the dismissal from the Navy of three enlisted persons who had engaged in homosexual acts. Canby’s opinion stressed that those persons “were discharged for homosexual conduct, not homosexual status.”

He noted that “although the record is clear that Pruitt is homosexual, there is no evidence in this case that she engaged in homosexual acts, or made any advance toward any active or reserve soldier that might be construed as homosexual conduct.”