Judge Urges Repeal of Military’s Gay Policy

A veteran federal judge issued a stern challenge to President Clinton on Thursday, urging the president to “admit his mistake of judgment” and renounce the military’s “don’t ask, don’t tell” policy.

“Renounce it because it is wrong, it is evil--as you surely know in your heart,” declared U.S. 9th Circuit Court of Appeals Judge William A. Norris in Los Angeles.

The liberal jurist issued the unusual challenge in remarks at an evening ceremony at the Pacific Design Center, where he received a “Liberty Award” from the Lambda Legal Defense and Education Fund, a national nonprofit legal group working for full civil rights for gay men and lesbians.

“Discrimination against lesbians and gay men as official governmental policy has emerged as the most intractable civil rights issue of the ‘90s,” said Norris, 70, who is perhaps best known for his strong opinion in a 1988 case in which he said the military’s ban on gays violated the U.S. Constitution’s equal protection clause.

“To be sure, other forms of discrimination, such as discrimination based on race or gender, persist as grave social problems in America,” Norris said Thursday. “But at least they are no longer acceptable as official governmental policy. Regrettably, however, it continues to be acceptable for the government and government officials to promote hatred, fear and intolerance against gay men and lesbians.”

Norris, condemned “don’t ask, don’t tell” as a policy that “demands that gays and lesbians live a lie if they wish to serve in the military, and fight and die for their country. . . . I can think of no other instance in which the government passed a law whose very purpose is to force people to live a lie, to pretend that their true selves don’t really exist.”

The judge, who once ran unsuccessfully as the Democratic nominee for state attorney general, said that in this respect the policy is truly unique.

In response to Norris’ prepared remarks, a White House spokesman, speaking on condition that he not be identified, said “the so-called ‘don’t ask, don’t tell’ policy is the law of the land and the president and the Department of Defense maintain a keen interest in ensuring that the policy is fairly enforced.”

The policy evolved from a lengthy debate about the rights of gays to serve in the military. Until 1993, there was a ban on gays and lesbians serving in the U.S. Armed Forces. As a presidential candidate, Bill Clinton said he supported the repeal of the ban. But shortly after his election, the Pentagon and some members of Congress vociferously objected to an outright repeal and Clinton came out with “don’t ask, don’t tell,” which permits homosexuals to serve in the military so long as they do not publicly state their sexual orientation.

Clinton called the policy an “honorable compromise.” But gay rights organizations immediately denounced it, and there has been considerable litigation over the policy. Thus far, four federal appeals courts--including the 9th Circuit--have upheld the policy. Norris was not one of the judges who considered that case, but in his remarks Thursday, said that the policy’s constitutionality is “highly suspect.”

Norris was introduced by his old friend, Mayor Richard Riordan, a longtime supporter of gay rights. Riordan quipped that when the two met at Princeton University in the late 1940s, “diversity was having a roommate from Texas.”

At the outset of his speech, Norris, who is set to retire this month after 17 years on the federal bench, indicated that his return to private life would enable him to speak more freely in public, saying, “I want to take advantage of my fully restored 1st Amendment rights.”

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In his address, the judge pointedly reminded Clinton of his recent commemoration of the 40th anniversary of the desegregation of the Little Rock, Ark., public schools, where speakers denounced the bigotry that had kept blacks in separate, unequal schools until then.

Norris said the “don’t ask, don’t tell” policy was equally worthy of condemnation. “It is also evil. . . . Just as the racial policies of Gov. [Orval] Faubus were evil.”

The federal judge urged Clinton to renounce the policy “before it becomes a permanent stain on his legacy.”

In the same vein, Norris denounced the 1986 U.S. Supreme Court’s Bowers vs. Hardwick decision, which upheld a Georgia law making sodomy a crime--a ruling that reversed a federal appellate court decision which held that the statute violated fundamental rights and that engaging in such conduct in private was beyond state regulation.

Norris delivered a particularly blistering critique of then-Chief Justice Warren Burger’s concurring opinion in the Bowers case. Burger said that according gay people “the same rights of privacy enjoyed by straight people” would be “to cast aside millennia of moral teaching.” Norris said Thursday that it was “surely one of the most gratuitous and vicious opinions ever written by a federal judge.”

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Norris predicted that the Bowers case and the “don’t ask, don’t tell” policy would eventually be buried in the “national cemetery of shame,” along with earlier Supreme Court decisions that permitted slavery, segregated public facilities and the mass incarceration of Japanese Americans during World War II.

“As dark as each of these chapters in our history has been, each ultimately has been renounced,” Norris said. “Each is now dead and buried, but we must never forget them, for they serve both as a reminder of our past mistakes and as a reference point for measuring our collective progress toward a truly just society.”

Norris said he took comfort from the 1996 U.S. Supreme Court decision that struck down an anti-gay initiative in Colorado, giving gays and lesbians their first major high court victory.

On a broader note, Norris said the nation is undergoing “a fundamental shift in the way Americans think about gay men and lesbians and the roles they play in our everyday lives. We see this change manifested in the popularity of Ellen DeGeneres’ out-of-the closet TV show, and the current box office sensation ‘In & Out,’ with its memorable moment of passion between the characters portrayed by actors Kevin Kline and Tom Selleck.”

After Norris concluded, comedian Bruce Vilanch, the master of ceremonies, joked: “We’ll send a video of Judge Norris’ speech to the White House, but of course it will take them six months to find it.”

Asked why he was making such a strong statement about gay and lesbian rights, Norris, who is normally cautious in his off-the-bench remarks, said simply, “I’m honored to get this award and it occurred to me this was an appropriate occasion to say what is in my heart.”