Justices Urged to Lift Ban on Military’s Gay Policy

Lawyers for the Clinton Administration urged the Supreme Court Tuesday to lift a lower court order that bars the military from taking action against service personnel because of their sexual orientation.

That order, handed down Sept. 30 by U.S. District Judge Terry Hatter Jr. in Los Angeles, “broadly intrudes . . . into the day-to-day management and discipline of military personnel, a responsibility which is confided by the Constitution to the political branches” of government, U.S. Solicitor Gen. Drew S. Days III told the court.

He asked the justices to strike down Hatter’s far-reaching order while the U.S. 9th Circuit Court of Appeals in San Francisco considers the government’s appeal of the ruling forbidding the discharge of gay Petty Officer Keith Meinhold.

While Tuesday’s “emergency” request is limited in its scope, it is the first step toward an ultimate ruling from the high court on whether the military’s policy against gays is constitutional.

After considerable political wrangling earlier this year, the Administration devised the so-called “don’t ask, don’t tell” policy under which service personnel are no longer asked about their sexual orientation but can be dismissed for openly acknowledging homosexuality.

The high court never has ruled squarely on whether official bias against homosexuals violates the Constitution’s guarantee of “equal protection of the laws.” But two federal appeals courts are considering the issue now in military cases, and the justices are likely to be confronted with the issue within the next year.

In the 45-page petition filed Tuesday, Days made three main arguments for lifting Hatter’s order.

First, judges must defer to military leaders in setting rules for service personnel. “It is firmly established that courts owe great deference to the considered professional judgment of the appropriate military officials,” Days said, citing a series of high court rulings.

Second, the nation’s highest elected officials--the President and Congress--gave “an enormous amount of time and attention” to the issue of gays in the military this year, and they devised a new, compromise policy. That policy has been put on hold. “Its implementation should not be thwarted by a single district court,” Days said.

And third, Hatter “seriously erred” by converting a lawsuit filed by a single person into a nationwide order affecting the entire armed services. Meinhold did not file a class-action suit, so Hatter had no authority to go beyond ruling on his individual case, Days said.

The Administration’s “emergency” request was delivered to Justice Sandra Day O’Connor, whose jurisdiction includes the West Coast. She is likely to pass it on to the full court, and a decision could come within several days.

The court’s decision may give a strong hint on how the justices ultimately will rule on the matter.

Generally, the court is reluctant to intervene in cases that are being handled in the lower courts. However, the justices will act on an emergency appeal if they believe the appealing party ultimately will win and that an interim order would cause severe harm. For example, when judges in Miami and New York issued orders barring the Coast Guard from intercepting Haitian refugees, the high court lifted those orders temporarily and ultimately ruled for the government.

If the court throws out Hatter’s order, the move would suggest that the majority believes the military can legally continue to discriminate against gays. However, if they refuse to intervene, it would suggest that they are not convinced the policy is constitutional.