Way Cleared for Military to Carry Out Policy on Gays

The Supreme Court cleared the way Friday for the Pentagon to carry out its new “don’t ask, don’t tell” policy on homosexuals, lifting a Los Angeles judge’s order that barred commanders from taking action against gays and lesbians in the military.

In throwing out the sweeping lower court order, however, the justices did not rule on the underlying constitutional questions involved. The court’s action means only that the new policy will remain in place while a lower court considers those underlying issues.

Under the “don’t ask, don’t tell” policy, negotiated by President Clinton and Senate leaders, openly gay service members will continue to be discharged from the military, but officers will no longer ask recruits if they are homosexual.

The future of that policy was cast in doubt last month when U.S. District Judge Terry Hatter Jr., ruling in response to a lawsuit filed by Navy Petty Officer Keith Meinhold, held that discrimination against gay personnel solely because of their sexual orientation was unconstitutional.

Hatter issued an order prohibiting the military from taking “any actions whatsoever” against gay personnel because of their sexual orientation and threatened to impose a “minimum of $10,000 per day” in contempt fines against anyone who took such action.

Despite several requests from government lawyers, the U.S. 9th Circuit Court of Appeals in San Francisco had refused to lift Hatter’s order.

Tuesday, lawyers for the Clinton Administration urged the high court to intervene. They said that Hatter had “seriously erred” both in his basic ruling and by issuing such a broad order in response to a single lawsuit.

The justices, who did not seek the usual response from opposing attorneys in the case, issued a brief order granting the government’s request. If nothing else, the quick, unanimous decision shows the court’s willingness to defer to the wishes of the military.

“We’re obviously pleased,” said White House Press Secretary Dee Dee Myers. “It means we can move ahead with the implementation of the President’s policy.”

Gay rights activists said that they were disappointed. “They bought the government’s argument that they must accommodate the simple prejudice against gay people,” said David M. Smith, a spokesman for the National Gay and Lesbian Task Force.

The Los Angeles attorney who represents Meinhold cautioned that the court’s action may indicate little about how the justices ultimately will rule on the constitutionality of banning openly gay personnel from the military.

“I really view this as a limited issue,” attorney John McGuire said. “It just confirms something we already know--that the court gives the military a lot of leeway.”

Certainly, Friday’s action is only the first step toward an eventual Supreme Court ruling on the issue of gays in the military. The U.S. 9th Circuit Court will hear arguments in Meinhold’s case in December, and a U.S. appeals court in Washington is expected to rule shortly on a discharge order involving a gay Navy midshipman.

One of those cases is likely to reach the high court next year.

The Pentagon hailed Friday’s court action and said that it expects to fully carry out its new policy within several weeks.

The legal provisions establishing the policy are contained in the Defense Authorization Act, differing versions of which have passed the House and Senate. The legislation now is being reconciled by a joint conference committee.

Times staff writer Art Pine contributed to this story.