NEWS ANALYSIS : Gay Rights Case a Window to Ginsburg Centrist Views

For those who wonder why Judge Ruth Bader Ginsburg is labeled a cautious centrist, there is no better evidence than her role in a 1984 case in which a homosexual sailor challenged his Navy discharge.

Gay rights leaders used the appeal to attack the military’s ban on homosexuals, contending that the policy violated the sailor’s constitutional “right to privacy” and denied him “equal protection of the laws.”

But the case of James L. Dronenburg sparked a bitter split within the 10-member U.S. Court of Appeals, as the competing judges argued about everything from abortion and sodomy to the significance of a one-line Supreme Court order.

The appellate panel’s conservative judges, two of whom were later nominated to the Supreme Court by President Ronald Reagan, mocked the notion that military personnel had a “right to privacy” guaranteed by the Constitution.

“We can find no constitutional right to engage in homosexual conduct and as judges, we have no warrant to create one,” wrote Judge Robert H. Bork, whose nomination to the high court was defeated in the Senate. He was joined by Antonin Scalia, now a justice on the high court.

Several liberal judges appointed by President Jimmy Carter slammed the conservatives for their cavalier dismissal of the sailor’s claim. They said that Bork’s “extravagant exegesis” tossed out the whole notion of guaranteed privacy rights and equal treatment.

In the middle, seemingly aloof from the ideological controversy that swirled around her, sat Ruth Bader Ginsburg, who also was appointed by Carter.

She refused to join the reasoning of either side, instead rejecting the sailor’s appeal based on a one-line Supreme Court order that upheld a Richmond, Va., anti-sodomy law in 1976. In that case, Doe vs. Commonwealth’s Attorney, the justices had rejected the claim that the Constitution guaranteed gays a right to privacy.

“I am of the view that the Supreme Court’s disposition in Doe controls our judgment in this case,” she wrote in a brief, separate statement. By a 6-4 vote, with Ginsburg in the majority, the appeals court finally rejected Dronenburg’s claim.

The outcome of the case shows why Ginsburg is quite acceptable to conservatives and moderates on Capitol Hill. During her 13 years as a judge, she has followed precedent, ruled narrowly and steadfastly avoided ideological pronouncements. None of her opinions stands as a landmark in the law.

To the dismay of many liberals, she has displayed little evidence of the “big heart” that President Clinton once listed as a criterion for his Supreme Court nominees.

“In this case, she clearly took a cautious, narrow position,” said Evan Wolfson of the Lambda Legal Defense Fund, which filed a brief on Dronenburg’s behalf. “She missed an opportunity to stand up on behalf of a vulnerable minority being deprived of its rights by a discriminatory government policy.”

Though Clinton has moved to lift the ban on gays in the military, he nonetheless sounded pleased Monday that his first high court nominee could not be easily categorized on ideological grounds.

“Ruth Bader Ginsburg cannot be called a liberal or a conservative. She has proved herself too thoughtful for such labels,” the President said in announcing the nomination.

Though her role in the case of Dronenburg vs. Zech typifies her work as an appellate judge, it may not indicate her true views on the constitutional status of gay rights, an issue bound to come before the high court in the years ahead.

In addition to the question of gays in the military, lower courts are considering cases on the legal status of same-sex marriages and job discrimination against gays and lesbians.

The Supreme Court’s most famous--or infamous--ruling on gay rights came in 1986, two years after the appeals court had struggled with the question.

On a 5-4 vote in Bowers vs. Hardwick, the justices upheld a Georgia anti-sodomy law. Writing for the majority, Justice Byron R. White said that it was “at best, facetious” to suggest that the Constitution’s protection of individual liberty was intended to include homosexual activity.

If confirmed, Ginsburg will replace White.

Attorneys who worked on the 1984 case said they are dismayed by Ginsburg’s role in it, but they do not view her as lost to their cause.

“We don’t know how she would approach the issue today. There’s much in her record that shows a deep appreciation for equal protection claims,” Wolfson said.

Arthur Spitzer, an American Civil Liberties Union attorney who worked on the case, said it was unfair to criticize her for following what she deemed to be a Supreme Court precedent on the issue.

“That is very much the normal practice,” he said.