THE VIRGINIAN-PILOT
Copyright (c) 1996, Landmark Communications, Inc.
DATE: Tuesday, October 22, 1996 TAG: 9610220253
SECTION: FRONT PAGE: A1 EDITION: FINAL
SOURCE: STAFF AND WIRE REPORTS
DATELINE: WASHINGTON LENGTH: 102 lines
The Clinton administration's ``don't ask, don't tell'' policy for gays in the military survived a Supreme Court challenge Monday, but more attacks on the controversial guidelines are headed for the high court in coming months.
The court, without comment, refused to hear former Navy Lt. Paul Thomasson's argument that the policy violated the Constitution. Thomasson was discharged from the military after he told his commander in a letter, ``I am gay.''
The court's refusal sets no precedent, and does not foreclose the justices from hearing another challenge to the policy. Other cases are working their way through federal courts across the country, and lawyers for lesbian and gay members of the armed services said on Monday that they expected the Supreme Court would confront the issue eventually.
In fact, cases now before the U.S. District Court in New York and the 9th U.S. Circuit Court of Appeals in San Francisco present broader challenges to the ``don't ask, don't tell'' policy than did the Thomasson case. These other cases include challenges to the section of the law that makes subject to discharge a service member who ``has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts.''
The Clinton administration policy prohibited interviewers from asking military recruits about their sexual orientation and barred investigations based solely on determining a service member's orientation.
Previously, homosexuals could be discharged or prevented from joining based on sexual orientation, even with no evidence of sexual activity.
Interest in the legal fate of the policy was heightened because the justices ruled earlier this year that Colorado could not add an amendment to its constitution that denied equal rights to homosexuals. In that May ruling, the high court emphasized that government cannot show ``animus'' toward people based on their sexual orientation nor make any class of people ``a stranger to its laws.''
Thomasson, now 33, served in the Navy for 10 years, receiving special assignments and superior performance ratings. The Navy conceded at his discharge hearing that his military record was ``enviable,'' and his commanding officer supported his retention in the service.
He now manages a restaurant in the Washington area.
``I'm tremendously disappointed,'' Thomasson said of the ruling. But, he added, ``I know this injustice will someday be set right.''
Thomasson was working for an admiral in the Navy's Bureau of Personnel in March 1994 when the Clinton administration formally announced the policy.
The day after the announcement, Thomasson gave four admirals in his chain of command a letter declaring ``I am gay.'' Court-martial proceedings began a week later, though Thomasson remained in the service for months and continued to earn glowing evaluations from his superiors until he was finally discharged in 1995.
Thomasson then filed suit in U.S. District Court in Alexandria to challenge the policy. But a trial judge there and the 4th U.S. Circuit Court of Appeals in Richmond upheld the policy.
The circuit court's 9-4 ruling, which is binding only in Virginia, Maryland, Delaware, West Virginia and the Carolinas, said service by gays is a question for the political branches of government - Congress and the president - to decide.
Thomasson argued that in his case, the policy infringes on his free speech rights. The Navy never presented evidence that he had engaged in homosexual acts.
In urging the Supreme Court not to hear the appeal, the Justice Department noted that all of the appeals courts that have reviewed the policy have upheld it, so there was no reason for the high court to resolve any split among the lower courts.
The department also emphasized that, to Congress, the statute at issue did not embody ``an irrational prejudice against gays and lesbians.'' Justice Department officials also noted that past court rulings have said the military ``constitutes a specialized community governed by a separate discipline from that of the civilian.''
In other action Monday, the court:
Left intact a lower court's decision allowing a film that seeks converts to Christianity to be shown at federally funded senior-citizen centers in Albuquerque, N.M.
Told a lower court to reconsider, under a new federal immigration law, whether U.S. officials in Hong Kong may refuse to issue immigrant visas to Vietnamese boat people seeking to enter this country.
Agreed to use an Idaho case to decide how quickly government officials sued in state courts may appeal a denial of immunity. MEMO: This story was compiled from reports by The Chicago Tribune, The
New York Times, The Associated Press and staff writer Dale Eisman. ILLUSTRATION: GRAPHIC
What happened Monday
The Supreme Court, without comment, let stand President Clinton's
``don't ask, don't tell'' policy on gays in the military, rejecting
an appeal by former Navy Lt. Paul Thomasson, right.
What the challenge was about
Thomasson had argued that the policy is unlawful discrimination
and a violation of homosexual service members' free-speech rights.
The 4th U.S. Circuit Court of Appeals in Richmond disagreed, and the
Supreme Court let the decision stand.
What it means for the policy's future
The court's action sets no precedent, and does not foreclose the
justices from hearing another challenge to the policy. Other cases
are working their way through federal courts across the country, and
the court is expected to confront the issue eventually.
KEYWORDS: SUPREME COURT GAYS IN THE MILITARY by CNB