Clinton Moves to Stop Law Aimed at GIs With HIV

Setting the stage for a constitutional clash with the conservative wing of the Republican Congress, President Clinton on Friday ordered the Justice Department not to defend in court legislation requiring the discharge of military personnel who test positive for the virus that causes AIDS.

The legislative provision, sponsored by Rep. Robert K. Dornan (R-Garden Grove), is contained in a revised version of the $265-billion defense authorization bill that Clinton plans to sign today because it includes pay raises for military personnel and other provisions that the White House deems essential. The president vetoed an earlier version of the bill in December.

Clinton called the HIV requirement unconstitutional, “clearly discriminatory and wholly unwarranted,” and said he will back efforts on Capitol Hill by moderate Republicans and Democrats to repeal the Dornan amendment. The president concluded that the provision arbitrarily discriminates and violates all notions of equal protection, an aide said.

As passed by Congress, the bill requires military personnel who test positive for the human immunodeficiency virus to be discharged within six months, regardless of their ability to perform their duties. They would continue receiving medical care, but benefits for dependents and disability pay would be terminated and base exchange and commissary privileges would end after two years.

Should the measure take effect before the law is repealed or a court challenge is upheld, Clinton also has ordered his administration to provide additional medical and other benefits to discharged service members and their families beyond what was approved by Congress.

The measure affects a small segment of the U.S. military population--1,049 service members have tested positive for HIV--but it has attracted widespread attention because of its symbolic importance to gay activists and their critics.

Rep. Jane Harman (D-Rolling Hills), who is leading the House effort to repeal the HIV rule, argued that about half of military personnel with HIV are “not Dornan’s demons” but married people with children.

But Dornan predicted that the Republican-controlled Congress would not repeal the new regulation.

“We welcome the public debate [Clinton] is generating. Even so, Clinton’s allies will lose in court and they will lose in Congress,” Dornan said.

Dornan has argued previously that people who contract HIV have committed immoral or illegal acts--homosexual behavior, sex with prostitutes and using drugs with infected needles.

Disputing the administration’s argument that the HIV provision does not serve any valid military or other purpose, Dornan argued that HIV-positive service members now affect military readiness because they cannot be sent overseas or serve aboard Navy ships, unfairly hurting the morale of those forced to be separated from their families.

“If today’s soldiers cannot [be deployed for combat] they have no business in our armed forces,” Dornan added.

But Sen. William S. Cohen (R-Me.), who along with Sen. Edward M. Kennedy (D-Mass.) is leading the Senate effort to repeal the measure, said service members with other medical disabilities such as heart disease, diabetes and pregnancy are not deployed overseas, although they are not included in the new law.

“Singling out the 1,049 service members who are HIV-positive for early separation is discriminatory and highly inappropriate,” Cohen said in a statement.

The White House strategy on the HIV issue counts on two factors: that Congress moves immediately to strike the law from the books, and that outside groups file lawsuits and obtain a restraining order to keep the new rules from taking effect.

At least one-third of the Senate has already signed on to the Senate bill that would strike the law, and about 74 co-sponsors have been gathered for the House version.

“We are making our very best effort,” Harman said. “But it’s an uphill battle in this Congress.”

The American Civil Liberties Union and HIV/AIDS advocates already are preparing to challenge the HIV provision in court.

“The president is right; this callous measure is unconstitutional,” said Matthew Coles, director of the ACLU’s AIDS Project.

The Human Rights Campaign, the largest national gay and lesbian lobby group based in Washington, D.C., had preferred that Clinton veto the defense authorization bill but praised his action.

“I think it’s a momentous step toward fairness,” said David M. Smith, a spokesman for the Human Rights Campaign. “I think [Clinton] has demonstrated strong leadership behind an overall effort to overturn this pernicious law.”

As part of the campaign to keep the provision from taking effect, the White House released a statement from Secretary of Defense William J. Perry and Joint Chiefs of Staff Chairman John M. Shalikashvili, declaring the Dornan amendment “unnecessary as a matter of sound military policy.”

The Pentagon officials said the measure would waste the government’s training of the service members and would be “disruptive to the military programs in which they play an integral role.”

But a Dornan aide dismissed the military’s statement, saying: “That proves Gen. Shalikashvili is a political general rather than a military general.”

Being forced out of the military while still physically fit has angered many affected soldiers who already have been contacted by lawyers preparing to fight the new law in court.

“I’ve been an exemplary individual in the service. I want to say that with capital letters because no one can deny me that,” said Robert, a Navy yeoman from San Diego who is HIV positive and asked that his last name not be used. “I don’t want to be thrown out on my butt after seven and a half years [in the military].”

Facing the prospect of not receiving disability pay after leaving the Navy, yet faced with a life-taking disease, Robert anguished over what he believes is an unfair policy aimed at gays, even though he said he is heterosexual. “Who’s to say what the rest of my life is going to be?”

Also voicing his criticism of the bill is Los Angeles Lakers basketball star Magic Johnson, who recently returned to the National Basketball Assn. after a four-year retirement prompted by the discovery that he is infected with HIV. The irony of his fans cheering him back onto the basketball court while members of the military face discharge for the same disease has been frequently noted by opponents of the bill.

Johnson said in a letter to Senate Majority Leader Bob Dole (R-Kan.) and House Speaker Newt Gingrich (R-Ga.) that his own forced retirement from basketball was caused by “fear and ignorance” about HIV and acquired immune deficiency syndrome. He asked them to “do right by those 1,049 service members and stop ignorance, fear and prejudice from forcing them to ‘retire’ from the jobs they love.”

Neither Dole nor Gingrich responded on Friday to the Johnson letter.

Times staff writer Ronald J. Ostrow contributed to this story.