Court Rejects Appeal by Gay CIA Agent Over His Firing : Law: Action by justices ends 11-year legal fight. Case resulted in agency declaring that ‘sexual orientation’ is no barrier to being hired, promoted.

The Supreme Court on Monday rejected a final appeal from a CIA employee who was fired after admitting that he was a homosexual, thereby ending an 11-year legal fight over whether the spy agency can discharge agents because of their private sexual behavior. But that action will not put an end to the battle over discrimination against gays.

Later this week, lawyers for the Clinton Administration are expected to ask the justices to lift a Los Angeles judge’s order forbidding any discharges or transfers of gay military personnel solely because of their sexual orientation.

Government lawyers said that U.S. District Judge Terry Hatter’s freeze “seriously interferes with the management of day-to-day military affairs” and should be suspended while the entire question is appealed.

The military cases, as well as the CIA case, raise a fundamental legal issue that remains unsettled: Is official discrimination based on sexual orientation a violation of the Constitution’s guarantee of “equal protection of the laws”?

Once again, the high court ducked a straightforward ruling on that issue in the case of the CIA agent who contested his dismissal.

Nonetheless, the long-running case of the employee known only as John Doe resulted in two noteworthy developments.

First, it established that even the CIA director does not have the unquestioned authority to fire persons for blatantly unconstitutional reasons. In an earlier decision in the same case, the Supreme Court ruled that agency officials must offer an explanation when their personnel actions are challenged on constitutional grounds. That 1988 ruling, in Webster vs. Doe, marked the first time the CIA had ever lost a case in the high court.

Second, the agency itself has been pressed to announce publicly that it does not discriminate against employees just because they are homosexual. In 1989, the agency issued a directive saying that “sexual orientation” does not disqualify anyone from being hired or promoted at the CIA.

But neither of those changes saved the job of John Doe.

Two lower courts here agreed that the CIA was justified in firing Doe in 1982 because he had hidden his sexual orientation. This raised doubts about his “trustworthiness” to hold a covert job in the agency, they said. Without comment, the justices refused to hear a further challenge to that decision (Doe vs. Woolsey, 92-2025).

Justice Ruth Bader Ginsburg said that she took no part in the decision because she had been on the U.S. Court of Appeals that decided Doe’s case. She did not, however, sit on the three-judge panel that ruled against him.

While the latest high court action sets no legal precedent, it is in line with the court’s steady refusal to rule on whether official discrimination against gays is unconstitutional.

Over the last 15 years, the justices have rejected a series of appeals from military personnel and teachers who have been fired because they were homosexuals.

Steven Reich, Doe’s lawyer, said he was disappointed that the justices did not hear evidence that Doe was discriminated against solely because of his sexual orientation.

David French, a CIA spokesman, countered that the key issue in Doe’s case was “about telling the truth and about the trust you need in someone in this type of position.”

While the high court has ducked the question so far, lower court judges, especially in California, have confronted it directly.

Judge Hatter, ruling in the case of gay Petty Officer Keith Meinhold, declared that such discrimination is unconstitutional. On Sept. 30, he went further and issued a nationwide injunction against taking any action against military personnel based on their sexual orientation.

On Friday, the U.S. 9th Circuit Court of Appeals refused to lift Hatter’s order while it considers an appeal of his ruling.