Discharged Guardsman’s Suit Challenges Gay Policy : Military: Ex-officer contends California National Guard violated state law that prohibits job discrimination because of sexual orientation.

A broad-ranging legal challenge to the year-old “don’t ask, don’t tell” policy on gays in the military was filed this week on behalf of a California Army National Guardsman recently discharged for stating that he is gay.

The lawsuit, filed in U.S. District Court in San Francisco on Tuesday, joins a long line of court cases seeking to overturn the Pentagon’s anti-gay regulations. This effort invokes some new arguments, principally that the ouster of 1st Lt. Andrew Holmes violates California law prohibiting job discrimination against gay men and lesbians.

“I think there is a lot of precedent that shows that government cannot discriminate on the basis of sexual orientation,” said Paul Wotman, the San Francisco attorney representing Holmes.

Holmes, 36, a technical writer living in the Sacramento area, joined the Reserve Officers’ Training Corps in college and was commissioned in 1988. He served in Germany in support of Operation Desert Shield and Operation Desert Storm and was called to active duty during the Los Angeles riots.

Holmes informed his superiors of his homosexuality in June, 1993, and was discharged from the California Guard in January.

A spokesman said the Guard had not seen the suit and had no comment. Although there have been a number of court rulings on the former military policy against gay service members, lawsuits challenging the new regulations are just beginning to make their way through the legal system. The first major court opinion on the revised ban is expected soon in another case pending in federal court in New York.

Under the new regulations, which took effect Feb. 28, 1994, recruits are no longer asked if they are homosexual. However, if service members acknowledge that they are gay, the military can start discharge proceedings on the assumption that they will engage in gay sexual conduct, forbidden under military law.

Portrayed as an easing of the ban by President Clinton, the new policy has been widely criticized by gay activists and gay military personnel, who say it has not slowed the pace of discharges or improved their lives.

In the Holmes lawsuit, Wotman charges that the compromise policy violates state and federal law, including privacy, free speech and equal protection guarantees.

“He’s throwing everything against the wall and seeing what will stick,” said Amelia Craig, managing attorney in the Los Angeles office of the Lambda Legal Defense and Education Fund, which has represented a number of gay service members. “More power to him.”

At the same time, Craig and a colleague in New York expressed doubt that many of the arguments would succeed. The contention that the Guard broke state law by expelling Holmes is likely to run afoul of the supremacy of federal military policy.