U.S. Court Ruling Questions Military Policy on Gays

The first gay members of the military to challenge the new Clinton Administration policy on homosexuals won a preliminary court ruling Monday that raises questions about the constitutionality of the “don’t ask, don’t tell” regulations.

A federal district court judge in New York barred the government from investigating or discharging the six gay service members while their lawsuit is pending.

Although the preliminary injunction leaves the recently adopted policy in effect, the wording of the 25-page decision indicated that the court has some misgivings about the new regulations.

“To me the language of the decision shows the court has seen through this policy and has recognized what it’s really about,” said Beatrice Dohrn, legal director of the Lambda Legal Defense and Education Fund, one of two civil liberties groups representing the plaintiffs. “The judge also pierced this whole nonsensical characterization of the policy: that it’s about conduct and not identity.”

A Pentagon spokesman declined comment, saying the Defense Department had just received the ruling.

The new regulations, which took effect in late February, were described by the Administration as an easing of the military’s anti-gay ban. But gay-rights advocates have claimed that the new policy is in some ways worse than the old.

Under the new regulations, sexual orientation is considered a private matter unless manifested by homosexual conduct. But, said the ruling, “The guidelines go so far as to make any statement of homosexual orientation, wherever and whenever made . . . as proof of an intent to engage in homosexual acts.”

The opinion, written by U.S. District Judge Eugene H. Nickerson of the Eastern District of New York, also said: “The message to those with such an orientation appears to be not to avoid private homosexual acts but to stay in the closet and to hide their orientation.”

Noting that there have been conflicting court rulings on the legality of the military’s previous policy on gays, Nickerson wrote: “This court does not now undertake to assess the relative merits of these divergent holdings. It is enough to say that the allegedly new policy makes the same distinction between homosexuals and heterosexuals as did the prior policy.”

The suit--the first to directly challenge the new policy--was filed last month by five men and one woman. They include two plaintiffs from California, Army Reserve First Lt. Kenneth Osborn, who is assigned to a support unit in South El Monte, and Navy Reserve Lt. Richard von Wohld, who is assigned to Moffett Field Naval Air Station in Northern California.