U.S. Loses Bid to Stay Ruling on Gays in Military

In another setback for the government, a federal appeals panel in San Francisco has refused to stop enforcement of a judge’s order overturning the military’s ban on gay men and lesbians.

Without comment, the 9th Circuit Court of Appeals denied the government’s request for a stay late Friday, keeping in place an order that bars the military from discriminating against gays in any way.

The only immediate recourse for the government is to ask the U.S. Supreme Court to block the ruling while the case makes its way through the appeals process. Pentagon spokesmen declined comment on the matter Monday.

In the meantime, the Defense Department has suspended discharge proceedings against gays and postponed implementation of the Clinton Administration’s “don’t ask, don’t tell” policy. If the Supreme Court does not intervene, the gay ban will probably remain on hold for months until 9th Circuit judges rule in the matter.

The action comes in the case of a Bay Area sailor, Petty Officer Keith Meinhold, who sued the government after he was discharged last year for homosexuality.

U.S. District Judge Terry Hatter Jr., presiding in Los Angeles, reinstated Meinhold in the Navy and subsequently found the military’s ban on gays unconstitutional. Late last month, Hatter threatened to levy hefty fines against government officials if they ignored his ruling, prompting the Defense Department to issue a directive stopping any action against gays “solely on the basis of homosexual orientation or statements of homosexuality.”

Although judges in other cases have ordered the reinstatement of gay service members, Hatter’s order is unusual in its breadth and detail. John McGuire, Meinhold’s attorney, said Hatter appeared to be patterning his rulings on desegregation cases: “I think he views them as being similar and accordingly fashioned a similar remedy.”

The case is scheduled to be argued before the 9th Circuit Court in December, and whatever that panel’s ruling, it will probably be appealed to the Supreme Court.

Still, gay rights attorneys expect that another military case, moving through the courts slightly ahead of the Meinhold case, will reach the Supreme Court first. That is an appeal filed by Joseph Steffan, a gay midshipman forced to resign from the Naval Academy shortly before graduation several years ago.

However heartened by Hatter’s rulings, gay rights advocates are advising gay service members to remain discreet until the courts take further action. “This is a very fragile situation,” said David Smith of the National Gay and Lesbian Task Force. “We would certainly not encourage people to come out at this point in time.”