6 GAY PEOPLE'S CHRONICLE

AUGUST 6, 1993

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From the courts to Congress, ban fight goes on

Continued from Page 1

case was put on hold pending Clinton's new policy.

In its appellate brief the government said "The district court erred on the merits in holding that DOD's former policy violated equal protection... [The] ruling may interfere with implementation of the president's new policy regarding homosexuality in the military," because it could be construed to mean the district court could be entitled to review the new policy before it takes effect. Meinhold's attorney, John McGuire, called the government's position in the brief hypocritical.

The government used similar arguments on behalf of the old ban in a separate appellate brief also filed on July 30 in the U.S. Circuit Court of Appeals for the District of Columbia.

That case involves Joseph Steffan, the former midshipman who resigned under pressure from the U.S. Naval Academy shortly before graduation in 1987 after acknowledging he is gay. The Justice Department said, "Rationality permits the military to adopt and enforce a policy of discharging an individual whose statements or conduct reveals an intent or propensity to engage in homosexual acts."

Steffan challenged the military policy against gays, but a D.C. federal judge upheld the policy in December 1991. The government brief was in response to an appeal by Steffan.

New policy also goes to court

Lesbian and gay advocates have brought suits against the new policy as well.

In the first of many anticipated legal challenges, the ACLU and Lambda Legal Defense and Education Fund filed suit in U.S. District Court July 27 on behalf of

seven gay service men and women, contending the new policy deprived them of their constitutional rights.

The suit said the new policy was "restrictive, confused and self-contradictory."

The lawsuit, which named Defense Secretary Les Aspin as the defendant, charged that Clinton's policy subjects gays "to investigation and discharge because of the perceived prejudices of others."

The suit seeks a declaration that the policy is unconstitutional and an order barring it from taking effect. The ultimate aim is to remove all restrictions on gays serving in the military.

Five of the seven plaintiffs allowed their names to be used in the suit, risking expulsion from the military. Two chose to remain anonymous.

There are also numerous pending federal court cases challenging the old ban that have yielded conflicting federal court rulings. The Supreme Court, however, has never ruled on the issue.

The ACLU's William Rubenstein notes that "don't ask, don't tell" clearly violates freedom of speech, while the religious freedom of gays is also threatened for those who seek worship with gay religious organizations. The suit also said the policy violates the 14th Amendment, which forbids various forms of discrimination, but not specifically bias based on sexual orientation.

Congress moves to codify ban

Ironically, on the same day that the ACLU filed suit, July 27, the House Armed Services Committee adopted a Senate committee proposal that would give commanders more leeway than the Clinton policy to discharge gays.

The proposal, which could become law as part of next year's military budget, was drafted by Sen. Sam Nunn, D-Ga., a step toward codification that President Clinton had hoped to avoid. It states that military service is unique and gay "lifestyles" create an unacceptable risk of disorder. Gay acts, statements or marriages are grounds for discharge, while people with a "propensity to engage in homosexual acts" would be banned outright from military service.

Approved by the Senate Armed Services Committee on July 23, the law would allow Clinton's interim change of not questioning recruits about their sexual orientation to remain, but would not bar reinstatement of that practice, and also of the familiar witchhunts, in the future. Sen. Strom Thurmond, R-S.C., summed up the goal of enacting the policy: "Some future president won't be tempted to lift the ban."

The House panel's backing for the Nunn policy followed an impassioned two-hour debate led by Rep. Ron Dellums, D-Calif., and the committee's 43-12 vote against a proposal to end the current ban. It was the first recorded roll call in Congress on the issue.

The committee, voting 38-18, also rejected a measure to reinstate the practice of asking recruits about their sexual preference. A measure that would discharge any service member who contracted the AIDS virus through a fault of their own also was rejected.

The committee also repealed the combat ban on women serving on Navy vessels.

The full House was expected to consider the legislation in the week of August 2-6, before Congress leaves on its summer recess August 9.

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