NOVEMBER 12, 1993

GAY PEOPLE'S CHRONICLE

5

Supreme Court lets military gay ban continue

Washington-The Supreme Court is allowing the Pentagon to remove open gays and lesbians from active duty while appealing a lower court's ban on discrimination against lesbians and gay men. The October 29 ruling ended a month-long suspension of the military gay ban.

The justices granted the Clinton administration's emergency request to temporarily limit enforcement of U.S. District Judge Terry Hatter's order banning all military discrimination against gays. For now, Hatter's order will apply only to Keith Meinhold, the sailor who challenged the policy. The government's appeal of the order will go forward.

In response to Hatter's order on September 30, the Pentagon had instructed units to stop discharging gays.

Hatter had declared in an earlier decision that the Pentagon's longtime ban on gays in the military was unconstitutional. In broadening that ruling in September, the judge barred the Pentagon from denying enlistment or promotion, or changing someone's enlistment status or duty assignment because of sexual orientation.

Hatter's rulings were in response to a lawsuit filed by Meinhold, who was discharged in August 1992 after coming out on national television. Hatter ordered him reinstated.

The government appealed, but the 9th U.S. Circuit Court of Appeals in San Francisco refused to delay the ruling's enforcement during the appeal. The appellate court is to hear arguments in the case in December.

Solicitor General Drew Days contended that because Meinhold did not file the lawsuit as a class action, Hatter did not have the

authority to issue an order affecting anyone else.

The October 29 Supreme Court order, issued without comment or dissent, means the Pentagon can return to an interim "don't ask, don't tell" policy. A more restrictive version passed a House-Senate conference committee on November 5.

The Pentagon originally filed its request with Justice Sandra Day O'Connor, who handles emergency matters from the 9th Circuit court. She referred the matter to the full Supreme Court.

Meinhold will remain on duty at Moffett Field Naval Air Station in California, where he has been since November 1992. “As long as I'm the only gay person in the military whose rights are protected, I will myself be a virtual pariah in the organization," he said. "The really sad part is the ban had been lifted for a month now without incident," he added. "I've been in for almost a year and nothing has happened. The military was not being harmed."

Meinhold is confident the 9th Circuit court will uphold his case when it hears his arguments in December. Meantime, he said, he is disappointed at the Supreme Court's refusal to grant all openly gay members of the armed forces the same protection it granted him.

Meinhold's attorney, John McGuire, said he was surprised the court singled out his client for protection.

"It's important to remember that the court still hasn't considered the main issue, which is why the military needs to continue a discriminatory policy," McGuire said. "The way I look at it is that this covers an interim period. That could turn out be a very short period."

Defense budget with anti-gay policy approved

Washington-House and Senate negotiators agreed to a $261 billion defense budget November 5 that includes a more restrictive version of President Clinton's policy on gays serving in the military.

The major issue for lawmakers on the House and Senate Armed Services committees this year was Clinton's campaign pledge to lift the 50-year-old ban on gays serving in the military.

Lawmakers adopted a plan that would allow a future defense secretary to reinstate the

practice of questioning

military personnel about

sexual orientation. Other major tenets of Clinton's policy are absent from the legislation, written by Sen. Sam Nunn, D-Ga., a major opponent of lifting the ban outright. Both the House and Senate had adopted the Nunn language in their versions of the bill. The legislation makes no mention that sexual orientation is not a bar to military service and has no language to discourage "witchhunts" to ferret out gays in the armed forces.

The legislation brands gays an "unacceptable risk" to morale, order and discipline in the military service, and includes a series of findings stating that Congress has the power to raise armies and

The administration, eager to see the issue disappear, has accepted the legislation and described it as "fully consistent" with its own policy. Nunn said the legislation, "though not identical to it, is consistent with the administration's policy."

Once the overall defense budget is approved by Congress, and the legislation is signed by Clinton, Nunn's policy will become law while the president's plan will simply be a directive to the armed forces.

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