2nd U.S. Judge Rules Military Ban on Gays Unconstitutional

In the second such ruling this year, a federal judge in California has concluded that the military’s ban on gay men and lesbians is unconstitutional and has ordered the reinstatement of a sailor discharged for homosexuality more than a decade ago.

U.S. District Judge Milton L. Schwartz, in a decision issued Monday in Sacramento, found that the military’s anti-gay policies are grounded in prejudice against homosexuals rather than in legitimate reasons.

Although the court case deals with regulations in effect in the 1980s--rather than President Clinton’s new “don’t ask, don’t tell” policy scheduled to go into effect Oct. 1--Schwartz reviewed many of the pro-ban arguments made in recent months and summarily dismissed them.

“I think the (court) order can be fairly read that any policy that excludes on the basis of sexual orientation is unconstitutional--and that includes the new policy,” said attorney Mel Dahl, who filed the suit on his own behalf when he was in law school in California, after his 1982 honorable discharge for homosexuality.

Federal attorneys who represented the Navy could not be reached for comment, but Dahl said he expects the government to appeal the decision.

The ruling applies to the federal Eastern District of California and would have to be upheld on appeal to have a far-reaching effect. But it joins a similar opinion--now on appeal--issued in January by a federal district judge in Los Angeles, who declared the gay ban unconstitutional and ordered the reinstatement of Keith Meinhold, a gay sailor serving in the Bay Area.

“I think it’s significant particularly coming after the President’s announcement of the new policy and the attempt by Congress to enact a stricter version,” said Jon Davidson, a gay rights attorney with the American Civil Liberties Union of Southern California. “This . . . indicates the difficulty those polices are going to face in passing judicial review.”

Schwartz, noting that closeted homosexuals do serve in the Navy, wrote: “Apparently, as long as heterosexual service members or recruits know only that some service members might be homosexual, but do not know exactly who is homosexual, they do not object to working, showering and living with homosexuals. However, once heterosexual service members or recruits learn that a particular member is homosexual . . . unit cohesion, recruiting, and privacy are suddenly threatened.

“The only inference to be drawn,” Schwartz continued, “is that the threats to military effectiveness posed by homosexuals, assuming such threats actually exist, arise solely from heterosexuals’ adverse reactions to the presence of known homosexuals in the Navy, and not from the behavior of homosexuals themselves. Given this, the court cannot conceive how the policy cannot be motivated by prejudice.”