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Clinton Strikes Deal With Military on Gays : Defense: President’s policy suspends most restrictions on homosexuals in armed services. A federal judge in Los Angeles rules the ban unconstitutional.

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TIMES STAFF WRITER

The Clinton Administration, military leaders and Senate Armed Services Committee Chairman Sam Nunn (D-Ga.) reached agreement Thursday night on a new policy to suspend most restrictions on military service by homosexuals.

At the same time, U.S. District Judge Terry Hatter Jr., ruling in Los Angeles in the highly publicized case of Navy Petty Officer Keith Meinhold, declared the gay ban unconstitutional, saying it violated the Constitution’s guarantee of equal protection of the laws. The ruling marked the first time the government had been forced by a court to reinstate a gay service member.

Legally, Hatter’s decision applies only in the portions of California covered by his court’s jurisdiction. But politically, it is certain to strengthen the hands of President Clinton and others seeking to end the ban nationwide.

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Secretary of Defense Les Aspin repeatedly has warned military leaders that they should seek a compromise with Clinton rather than face the likelihood that the ban would eventually be overturned by judicial fiat. “My argument to the military is sooner or later, the courts are going to come at you on this issue,” Aspin said in a recent television interview.

Under the new policy, which Clinton is expected to announce today, the military will stop asking new recruits about their sexual orientation, will suspend new investigations to ferret out gays already in uniform and will suspend current cases seeking to discharge gays so long as those cases are based solely on homosexual status rather than on any improper conduct. Clinton will not formally lift the ban, however, for six months, giving Congress time to hold hearings on the issue.

One significant concession--apparently made to win Nunn’s approval of the deal--would allow military commanders during the six-month interim period to continue to take action against gay service members by transferring them to less desirable assignments or denying them promotions.

Clinton had hoped to announce his new policy on military service by gays Thursday but was prevented from doing so by last-minute haggling, primarily involving Nunn, White House and Pentagon officials said.

“The effort so far has been to fix the process and create the conditions for a good faith effort to see if this policy can work. Agreement has been reached a couple of times and Nunn has been the sticking point,” an aide to Aspin said some hours before the agreement was reached. Nunn, officials said, raised objections to the policy even after the uniformed service chiefs had agreed to it.

“We had a very good discussion,” Nunn told reporters after he and Senate Majority Leader George J. Mitchell (D-Me.) met with Clinton at the White House for more than an hour. “We made some progress toward reaching a conclusion on this matter.”

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“It’s my understanding the President hopes to make a statement sometime tomorrow,” he said.

But Nunn was finally brought on board after a Capitol Hill meeting with Mitchell and several other Democrats at which the senators hammered out final language on how the military should handle cases of avowed gays during the interim period between now and Clinton’s eventual final order.

Nunn’s approval was crucial because congressional Republicans have continued to threaten to force a vote on a bill that would tie Clinton’s hands by writing the ban on gay service into law. With Nunn’s support, White House officials were confident they could easily put off any such move. But if Nunn had balked, a bill to codify the ban probably would have passed the Senate, officials said.

Hatter’s ruling came one month after he ordered Meinhold, 30, temporarily reinstated to the Navy pending his formal decision on the constitutionality of the gay ban. Meinhold is a 12-year Navy veteran who was honorably discharged in August after disclosing on national television that he is gay.

In his ruling Thursday, Hatter wrote that “gays and lesbians should not be banned from serving our country in the absence of conduct which interferes with the military mission.” Military officials had conceded that Meinhold had an excellent service record.

“Gays and lesbians have served, and continue to serve the United States military with honor, pride, dignity and loyalty,” Hatter wrote. He called the Defense Department’s justifications for the ban baseless, likening them to the reasons the military used in maintaining segregation in the services in the 1940s.

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In the past, the government has strenuously contested all cases that challenged the ban in court, but that is now likely to change as a result of Clinton’s determination to revoke the ban. The military has no authority to take cases to civilian courts independent of the Justice Department.

In theory, were Hatter’s ruling to be upheld by the Supreme Court, it would set a nationwide policy that Congress would not be able to overturn. As a practical matter, however, Clinton’s determination to revoke the ban later this year probably will settle the issue long before appeals would be able to wend their way through the courts.

Hatter wrote that in reaching his decision he “cannot merely defer to the ‘military judgment’ as the rationale for the policy--the court must consider the factual basis underlying the ‘military judgment.’ ”

The judge relied in part on a statement made by the George Bush Administration’s defense secretary, Dick Cheney, who said in a television interview in December that gays and lesbians are no longer a security risk to the military, contradicting claims made in the Meinhold case.

The judge cited a long history of studies commissioned by the military going back to 1957 when consideration was given to changing the policy on homosexuality.

He said the studies consistently found no proof that homosexuals could not serve in the military and said one study concluded that the difference in job performance between homosexuals and heterosexuals was no different than being left- or right-handed.

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Hatter quoted a message from Vice Adm. Joseph S. Donnell, the commander of the Surface Atlantic Fleet, that stated: “Experience has shown that the stereotypical female homosexual in the Navy is hard working, career-oriented, willing to put in long hours on the job and among the command’s top professionals.”

Hatter noted that among all the countries in the North Atlantic Treaty Organization, only the United States and Great Britain ban gays and lesbians from their armed forces.

Both Meinhold and his Los Angeles attorneys were overjoyed at Hatter’s ruling.

“I think I jumped high enough that my head hurts because I hit the ceiling,” Meinhold told the Associated Press. “It’s nice to see that our Constitution’s going to be followed now.”

Christopher Rudd, one of his attorneys, said the ruling “just reinforces our belief that there is no rational basis for this policy” and would send a signal to Congress.

J Craig Fong, western regional director of the Lambda Legal Defense and Education Fund, a gay rights group, chuckled with relish when told of Hatter’s decision. “He vindicates and he validates all of the things we have said about the issue of gays in the military--that (opposition) is based on pubescent myths and misconceptions,” Fong said.

Congress, Fong added, should take note. “After all, this is a United States district judge speaking and he is saying what so many people have said all along.”

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Although the windshield of Meinhold’s parked car was damaged at Moffett Naval Air Station near San Jose on Wednesday, he said he has been generally well treated by colleagues since he returned to duty under court order in November. Most of his fellow sailors just want the case to go away, he said. “They are sick of the whole issue and the big deal everybody is making of it.”

Meinhold criticized the Joint Chiefs of Staff and said their campaign against Clinton’s plans to lift the gay ban amounted to insubordination. “I am somewhat surprised how openly hateful these people can be,” Meinhold said. “It’s kind of hard to feel positive about the military in general (these days).”

Still, Meinhold predicted, the ban on homosexuals will fall. “It’s going to happen.”

News of the ruling was brought up midway through the White House meeting, said Mitchell, who said he wanted to read the ruling before commenting. Press Secretary Dee Dee Myers said the decision had no bearing on Clinton’s decision.

In a brief question-and-answer session with reporters during a White House photo opportunity Wednesday afternoon, Clinton reiterated his intention to lift the ban eventually and said his staff was “pretty close to language” for a final announcement.

“The principle behind this for me is that Americans who are willing to conform to the requirements of conduct within the military services, in my judgment should be able to serve in the military, and that people should be disqualified from serving in the military based on something they do, not based on who they are. That is the elemental principle.”

Clinton said that he and military leaders had agreed that the military would stop asking new recruits about their sexual orientation and described the remaining issue as a “narrow” one: “whether people should be able to say that they are homosexual without being--and do nothing else--without being severed” from the service.

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But the President conceded that “there are a whole lot of very complicated practical questions that flow from that very narrow issue.”

Despite the joint chiefs’ agreement that the military would stop asking new recruits about sexual preference, senior Republicans indicated Thursday night--in comments made before the ruling in the Meinhold case--that they may still press for a test vote on the issue.

Senate Republican leader Bob Dole of Kansas proposed a six-month “time out” on the issue, saying Clinton should make “no changes” whatsoever in existing policy while congressional hearings are under way.

“I would suggest we just have a time out. Don’t change a thing. Have the hearings and wait for the results,” Dole said.

“We will take no step to do anything if the President does nothing for the next six months,” added Sen. Strom Thurmond (R-S.C.), the ranking Republican on the Senate Armed Services Committee. “However, we will not wait if the President will not wait. We are going ahead if the President goes ahead.”

The GOP strategy would be to try to attach the gay ban as an amendment to another piece of legislation, most likely the family leave bill that Clinton hopes to sign early next month. It was unclear what effect Hatter’s ruling might have on the Republicans’ position, however.

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Although the gay-ban issue has generated thousands of calls to the White House and Congress, White House Communications Director George Stephanopoulos dismissed the calls as an unreliable gauge of public opinion.

“There is an organized effort by people like Randall Terry and other right-wing groups to focus attention on this issue. It is organized. It isn’t necessarily a gauge of where people are,” Stephanopoulos said. Terry, the head of the anti-abortion group Operation Rescue, has publicly said that his group has tried to generate calls on the subject, as have several other conservative groups.

Times staff writers Melissa Healy and Michael Ross, in Washington, and Bettina Boxall, in Los Angeles, contributed to this story.

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