Court Fight Vowed on Gay Policy : Rights: Experts believe a legal challenge is unlikely to succeed in the near future. But opponents of the ban believe that time is on their side as justices and attitudes change.

Gay rights attorneys vowed Monday to go to court to fight President Clinton’s decision to maintain the military’s ban on open homosexuals, but such a legal challenge is not likely to succeed in the Supreme Court, at least in the near future, legal experts said.

“In principle, they have some strong arguments against (the ban on gays) but it would be surprising for this court to accept them,” said University of Chicago law professor Cass Sunstein, who in law review articles has urged the courts to take a new look at issues of sexual orientation.

Gay rights lawyers contend that the military’s revised policy is unconstitutional both because it denies homosexuals the “equal protection of the laws” and because it violates their free-speech rights. If they discuss their sexual orientation openly, those comments can lead to dismissal.

“This is a classic civil rights issue for the courts because (the military’s policy) is based on an irrational prejudice,” said William Rubenstein, director of the ACLU’s Lesbian and Gay Rights Project.

The gay-rights activists have been cheered by recent federal court rulings in California that have undercut the military’s strict ban on gays in the ranks.

In one case, the U.S. 9th Circuit Court of Appeals said that the policy cannot stand unless the Pentagon offers a more convincing “rational basis” for it. Government lawyers have not yet supplied their defense. In a second case, U.S. District Judge Terry J. Hatter Jr. in Los Angeles flatly declared the military’s discharge policy unconstitutional. His ruling now is being appealed.

Despite those successes, gay-rights advocates have yet to gain even a hearing before the Supreme Court, whose members have refused to hear appeals from gays discharged from the armed services.

A legal challenge to the military’s ban faces two high hurdles in the Supreme Court.

First, the justices traditionally defer to the wishes of the military. They have consistently refused to strike down policies set by military commanders, even when they appear to clearly violate the constitutional rights of service personnel.

For example, the court in 1984 rejected a Jewish officer’s request to wear a yarmulke while on duty. In a lower court ruling, Judge Ruth Bader Ginsburg ruled that this policy violated his rights to religious freedom but the high court disagreed. Speaking for the court, Justice William H. Rehnquist stressed that the military’s prerogatives outweigh the rights of service personnel.

Second, the court has refused to say that governmental discrimination based on sexual orientation violates the Constitution even for civilians.

While the 14th Amendment broadly speaks of ensuring every person the “equal protection of the laws,” the court has interpreted that command rather narrowly. Government discrimination based on race or gender is “suspect,” the court has said, and should be prohibited in nearly all instances.

But the court has refused to bar other types of discrimination based, for example, on age, wealth or disability.

Eventually, gay rights lawyers hope to convince the Supreme Court that discrimination based on sexual orientation is “suspect” also and should be banned.

In the meantime, they hope to persuade the court that a policy requiring the discharge of open gays is not rational and therefore, should be struck down.

A government policy “can’t be based on irrational stereotypes,” said Kevin Cathcart, executive director of the Lambda Legal Defense Fund. The court has long taken the view in equal protection cases that governments can discriminate or make distinctions among people provided the laws are not arbitrary or irrational.

For the gay legal advocates, time may be on their side.

“If the litigation can be strung out over five years or longer, it (the military’s ban) will be struck down,” predicted Georgetown law professor Mark Tushnet. “The court’s composition will be changing and public attitudes are changing.” In the long run, he said, the justices will not want to endorse a blatantly discriminatory policy against one category of citizens.