Court Upholds Reinstatement of Gay Sailor : Appeal: Federal judges agree that man’s declaration of homosexuality alone was not sufficient for discharge. But they throw out ruling that said military’s policy is unconstitutional.

In an opinion that contained good and bad news for gay activists, a federal appeals court Wednesday upheld the reinstatement of a gay sailor, while throwing out part of a lower court decision in the case that declared the military’s gay policies unconstitutional.

Affirming the reinstatement, the San Francisco appeals panel said it is improper for the military to bar gay men and lesbians based solely on their statements that they are homosexual--a conclusion that carries troubling implications for the Clinton Administration’s “don’t ask, don’t tell” regulations.

The ruling, issued by the U.S. 9th Circuit Court of Appeals, was the latest in a series of judicial opinions that have, to at least some degree, come down on the side of gay service members challenging the military’s policy on homosexuals.

In this case, the judges upheld a District Court opinion reinstating Navy Petty Officer Keith Meinhold, who was discharged in 1992 after he disclosed during a TV news show that he is homosexual.

The military can bar homosexual conduct, the opinion said, but the Navy went too far in assuming that Meinhold would engage in such illegal conduct simply because he identified himself as gay.

Only a statement that shows a “concrete, fixed or expressed desire to commit homosexual acts despite their being prohibited” justifies an involuntary discharge, the appeals panel said.

Although the decision applies to military regulations replaced last year by the Clinton Administration, legal scholars said it holds significance for the new policy as well. “The ‘don’t tell’ part of the new policy is brought into serious question by this decision,” said Stanford Law School professor Kathleen Sullivan.

Under the new rules, the military no longer asks recruits about their sexual orientation, but if a service member says he or she is gay, they have to prove they are not engaging in prohibited homosexual conduct to stay in the service.

Touching on the distinction drawn between homosexuals and heterosexuals by the military, Judge Pamela Rymer noted in the 3-0 decision that “no similar assumption” is made that heterosexuals will engage in prohibited conduct such as adultery simply because they are heterosexual.

“At least a serious question is raised whether it can ever be rational to presume that one class of persons (identified by their sexual preference alone) will violate regulations whereas another class (identified by their preference) will not,” Rymer wrote.

“That is a stunning statement--for a conservative judge to say that there’s a serious equal protection question here,” said Sullivan, who described all three judges who signed the opinion as conservative.

At the same time, Rymer said the court would defer to the Navy’s judgment that the presence of people who engage in homosexual conduct or who demonstrate a propensity to do so by their statements “impairs the accomplishment of the military mission.”

Moreover, the panel struck down part of U.S. District Judge Terry Hatter’s ruling forbidding the government to take any action against gay service members based solely on their sexual orientation.

Meinhold, the judges noted, had not filed a class-action lawsuit and Hatter was unnecessarily sweeping in applying his order to all service members. “Beyond reinstatement, and not separating Meinhold on that basis, (the Department of Defense) should not be constrained from applying regulations to Meinhold and all other military personnel,” they said.

At a news conference in San Diego, where Meinhold is on temporary assignment, he and his lawyer praised the appellate court ruling. They said it will bolster future challenges to the “don’t ask, don’t tell” policy, even though the court did not address the constitutionality of that rule directly.

“This decision says quite explicitly that it’s improper for the government to make presumptions about improper conduct based upon a service member’s acknowledgment that they are gay or lesbian,” said John McGuire, Meinhold’s lawyer. “That presumption is exactly the linchpin of the Clinton Administration’s ‘don’t ask, don’t tell’ policy. And that is exactly what this court has said the government can’t do.”

McGuire said the reversal of the sweeping lower court decision against military gay policies was not a major setback, arguing that Wednesday’s ruling prevents the military from discharging people for simply saying that they are gay.

Sullivan saw a far more limited impact, saying the opinion would take legal precedent within the 9th Circuit in cases pending against the old military policy on gays.

A spokesman for the U.S. Justice Department declined comment on the decision, saying department attorneys were reviewing the opinion and had not decided their next step in the case.

Ultimately, the challenges against the military gay regulations will be settled by the U.S. Supreme Court, which is expected to take up one of the dozen or so cases making their way through the court system.

Meinhold said that during his legal battle he has “learned to have more faith in the system of justice, the military and even the politicians.”

Meinhold, who works as a sonar operator on combat flights, is stationed at a base at Whidbey Island, Wash. He cited his current assignment--classified anti-submarine warfare research in San Diego--as proof of good treatment by the Navy.