October, 1991 GAY PEOPLE'S CHRONICLE

Page 11

DOD must prove ban ‘rational'

by Nick Bartolomeo

A federal appeals court panel in San Francisco has ruled that the Defense Department must prove that its 48-year-old ban on gay servicemembers is rationally related to maintaining the integrity of the military.

The ruling, which could prove crucial in the effort to overturn the policy, was handed down by the U.S. Court of Appeals for the Ninth Circuit. It was made in a Pruitt v. Cheney, a case brought by Dusty Pruitt, a lesbian who was discharged from the Army reserves after acknowledging her sexual orientation in an interview with the Los Angeles Times.

Pruitt, a captain when she left active duty service in 1975, filed suit against the DOD in U.S. District Court shortly after the interview appeared in 1983. Pruitt argued that the First Amendment right to freedom of speech prohibited the Army from taking discharge action solely because she acknowledged that she was a lesbian.

District Court Judge William Gray dismissed the suit in 1987 without addressing the constitutional issue Pruitt raised. Gray also deferred to the Army's motion that its policies prohibiting gays have been supported by numerous court decisions and do not require further substantiating proof.

The three judge appeals panel reversed Gray's dismissal and ordered him to require the Army to prove whether its "discrimination is rationally related to a permissible

governmental purpose." The court also ruled that the legal precedents the Army presented as evidence to support its policies were faulty.

In particular, the appeals court stated that the decision in Beller v. Middendorf, cited by the Army, was "based significantly on prejudice of others against homosexuals". That decision upheld the discharge of three Navy enlisted persons for homosexual conduct.

The 9th Circuit court also indicated that a 1984 U.S. Supreme Court case, Palmore v. Sidoti, which addressed societal prejudices against interracial marriage, "undercut" decisions made on the basis of prejudiced reasoning.

"The Constitution cannot control such prejudices but neither can it tolerate them,” stated Judge William Canby, citing the language of the Supreme Court ruling. "Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect."

Lambda Legal Defense and Education Fund attorney Mary Newcombe, who is representing Pruitt, said that the appeal court's ruling for Pruitt "signals an end" is coming to the military's exclusionary policy.

"Previously the courts deferred to the military to the extent that they would not allow us to put in evidence about the irrationality of the policy," said Newcombe. "This is an important step forward in terms of knocking down the wall of government discretion."

Dykes To Watch Out For

The

Blow

1991 BY ALISON BECHDEL

BUT I HIRED SOMEONE ELSE.

118

IT'S MONDAY MORNING AT MO'S HOUSE,

ISN'T TODAY THE DAY JEZANNA SAID SHE'D LET YOU KNOW WHO SHE'S HIRING FOR THE NEW JOB?

BAN CELLS FRO STRANA PEN

YUP! LET'S HAVE DINNER AT THE TOPAZ TONIGHT TO CELEBRATE!

ND AT LOIS'S TOO... GOOD LUCK, LOIS! HOPE YOU GET THE Job!

LUCK, SCHMUCK! IT'S IN THE BAG, BABE!

The battle is not yet over because the government has the option of petitioning for a rehearing of the case before the full appeals court, in addition, the appeals court disagreed with Pruitt's contention that the military violated her First Amendment rights.

SONGEN?

Reprinted by permission from the Washington Blade, Washington, D.C.

Anti-gay Helms amendment approved

Washington--By a 68-28 vote, the Senate gave North Carolina Republican Sen. Jesse Helms overwhelming support for an amendment to prohibit the National Endowment for the Arts from funding artwork or performances that depict “in a patently offensive way, sexual or excretory activities or organs".

The action came during Senate consideration of the funding bill covering the endowment.

"Sen. Helms would find Michelangelo's David patently offensive," said Time. McFeeley, executive director of the Human Rights Campaign Fund, a national lesbian and gay organization.

McFeeley added, "Sen. Helms has as his real target lesbian and gay artists. By targeting art which he deems offensive, he hopes to send an indirect message to the NEA to target and destroy lesbian and gay creativity."

McFeeley said the campaign fund's lobbyist will work to ensure that this vote does not go unchallenged.

HERE ON TIME?

S

DAMN! WHAT ARE YOU TWO DONG

WELL?

DIDJA DECIDE?

OKAY, OKAY. LET'S GET IT OVER WITH. LISTEN, I KNOW YOU WERE BOTH COUNTING ON

THIS JOB...

2x0

POOR LOIS! SHE DIDN'T GET IT!

POOR MO!

I HOPE SHE

DOESN'T THE IT TOO HARD.

YOU WHAT?

WHO?!

HER NAME'S THEA. SHE'S NEW IN TOWN. MAYBE YOU SAW HER WHEN SHE BROUGHT HER RESUME IN LAST WEEK. SHE WALKS WITH CHURCHES.

LOOK.I'M SORRY. I KNOW YOU'RE DISAPPOINTED. BUT IT'D BE A REALLY DUMB MOVE NOT

TO HIRE HER.

SHE HAS YEARS OF EXPERIENCE AS A BUYER FOR A BOOKSTORE ON THE WEST COAST. SHE KNOWS THE JOB!

PLUS SHE'S AN ARTIST. SHE'S IN TOUCH WITH LOTS OF CRAFTSWOMEN AND HAS SOME GREAT IDEAS FOR SETTING UP A GALLERY IN THE STORE..

WHAT CAN I SAY? SHE'S SMART, FUNNY, HER REFERENCES

ARE FANTASTIC!

JEZANNAI CAN'T BELIEVE YOU BASSED UP ME AND JAIS FOR SOMS STRANGER JUST BECAUSE SHE'S DISABLED!

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