High Court Delays Final Ruling on Gays

Putting off a final ruling on whether the military can continue to exclude open gays and lesbians, the Supreme Court on Monday rejected the first case to challenge President Clinton’s “don’t ask, don’t tell” policy.

Without comment, the court upheld the discharge of a highly regarded young Navy officer who in a letter to his commanders wrote, “I am gay.”

In his appeal, former Lt. Paul G. Thomasson said that his free-speech rights were violated when the Navy discharged him from the service solely because of his statement. The Navy admitted it had “no evidence that Thomasson had engaged in homosexual acts,” but it said his statement proved that he had “a propensity” to have sex with men.

Monday’s one-line order in the case of Thomasson vs. U.S., 96-1, will not be the final word from the Supreme Court, and some gay-rights leaders said they were relieved that the justices refused to hear the first appeal.

“We were not eager for the court to take on this case,” said Beatrice Dohrn, legal director for the Lambda Legal Defense Fund in New York. “We want to challenge the entire inequality of the military’s policy that treats gays and straights differently.”

Broader challenges to the policy are pending before the U.S. 9th Circuit Court of Appeals for the Western states and the U.S. 2nd Circuit Court of Appeals in New York. Lawyers in both cases say they expect one of those to reach the high court within a year.

Upon taking office in 1993, Clinton moved to repeal the military’s long-standing policy of excluding homosexuals. Rebuffed by the Joint Chiefs of Staff and Congress, he settled for a compromise that allowed gays and lesbians to serve as long as their sexual orientation was kept private.

Commanders are not supposed to inquire about such matters. However, if service members are “found to have engaged . . . in homosexual acts” or admit they are “a homosexual or bisexual,” they are to be discharged for that reason.

In defense of the policy, Clinton administration lawyers say the presence of openly gay soldiers would undercut “unit cohesion” and threaten the privacy of heterosexuals.

Ever since the policy took effect, lawyers representing gay service personnel have fought behind the scenes on how to challenge it. Some have favored a narrow challenge relying on the 1st Amendment. They believe the federal courts might knock down a policy that punished persons for what they said rather than what they did. These lawyers are willing to concede that the military could remove persons who engage in “homosexual acts.”

The Lambda Legal Defense Fund and the American Civil Liberties Union have instead chosen to fight the policy more broadly as an unconstitutional discrimination. They say it violates the Constitution’s guarantee of “equal protection of the laws” by treating private sexual relationships differently depending on whether they are homosexual or heterosexual.

“The rules on conduct are not even-handed. All heterosexual behavior is OK. All gay behavior is grounds for discharge,” said Matthew A. Coles, director of the ACLU’s Lesbian and Gay Rights Project.

In Seattle, Navy Petty Officer Mark Philips admitted that he had had sex with men and is challenging his discharge in a case heard by the 9th Circuit Court in March.

In New York, U.S. District Judge Eugene Nickerson struck down the Pentagon policy on free-speech grounds, but the 2nd Circuit Court has asked him also to rule on the broader issue of unconstitutional discrimination.

Until recently, most legal experts have assumed the Supreme Court would uphold the Pentagon’s anti-gay policy.

Over the years, the justices have regularly said the military is unique and need not follow the same rules as civilian society. For example, members of the armed services can be punished for protesting or speaking out, whereas civilian employees would be shielded by the 1st Amendment.

Second, before this year, the court had never struck down a law or government policy that discriminated against gays.

In May, however, the court threw out a Colorado anti-gay rights initiative that would have disallowed special legal protection for homosexuals, calling it an irrational law that was “born of animosity” toward an entire class of persons.

The 6-3 opinion in Romer vs. Evans did not spell out a clear rule for the future. Still, the outcome has given gay-rights advocates new hope that eventually the high court will outlaw official policies that discriminate among persons based on their sexual orientation.

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BACKGROUND

The “don’t ask, don’t tell, don’t pursue” policy, announced July 19, 1993, prohibits interviewers from asking military recruits about their sexual orientation and bars inquiries based solely on determining sexual orientation. Previously, gay men and lesbians could be discharged or rejected, even with no evidence of sexual activity.