ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Tuesday, October 22, 1996 TAG: 9610220062
SECTION: NATIONAL/INTERNATIONAL PAGE: A-1 EDITION: METRO
DATELINE: WASHINGTON
SOURCE: LAURIE ASSEO ASSOCIATED PRESS
President Clinton's ``don't ask, don't tell'' policy on gays in the military survived its first Supreme Court test Monday as the court rejected the appeal of a former Navy officer dismissed for declaring his homosexuality.
The justices rejected former Lt. Paul Thomasson's argument that the policy is unlawful discrimination and a violation of homosexual service members' free-speech rights.
Thomasson was forced to leave the Navy last year after writing a letter to his commander that said, ``I am gay.'' He had served for nearly 10 years.
The court's action was not a ruling on the issue's merits and does not preclude the justices from fully reviewing the policy in a future case. But the court let stand a lower court's decision that upheld the rule barring openly homosexual people from serving in the military.
The Clinton administration said the government has a legitimate interest in prohibiting homosexual acts in the military to avoid a ``risk to military effectiveness'' and to protect service members' privacy.
``I'm tremendously disappointed,'' said Thomasson, who now manages a restaurant in Washington, D.C. But he added, ``I know this injustice will someday be set right.''
Gay rights advocates said they were not surprised by the court's action because Thomasson challenged only the part of the policy allowing the discharge of people who say they are gay. Other cases in lower courts are challenging the entire policy.
``This policy says absolutely no sexual activity anywhere as long as you're lesbian or gay,'' said Matt Coles of the American Civil Liberties Union's lesbian and gay rights project.
Earlier this year, the nation's highest court handed gay rights advocates a major victory by ruling that Colorado voters could not ban state and local laws that protect homosexuals from discrimination.
But that ruling did not address the legality of homosexual conduct. In 1986, the justices upheld a Georgia law that criminalized homosexual sex between consenting adults.
Clinton's ``don't ask, don't tell'' policy was a compromise that resulted from congressional repudiation of his pledge to lift the long-standing ban on gays in the military. The policy is intended to let gays serve as long as they keep their sexuality private.
Thomasson worked for the admiral who administered the policy. The Navy based his discharge on his statement that he is gay, and there were no findings that he engaged in homosexual conduct.
A federal judge upheld the discharge. The 4th U.S. Circuit Court of Appeals agreed, 9-4, that military policy should be set by elected officials, not judges.
Thomasson's Supreme Court appeal said that the policy was illegal discrimination and that it violated his free-speech rights by discharging him because he said he is gay.
Justice Department lawyers said the policy ``does not embody an irrational prejudice against gays and lesbians.'' Service members' statements that they are gay can be used as evidence that they are likely to engage in homosexual acts, the government's lawyers said.
Anyone in the military - heterosexual or homosexual - who engages in oral or anal sex is subject to discharge. But other actions such as kissing, hugging or stating one's sexual orientation would lead to discharge only if they involved same-sex conduct.
Melissa Wells-Petry of the conservative Family Research Council contended the ``don't ask, don't tell'' policy was unclear and said the government should return to a flat ban on homosexuals serving in the military.
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. City officials said showing the film at city-owned centers would violate the constitutionally required separation of church and state.
* 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.
* Refused, without comment, to hear the appeal of Virginia death row inmate Steve Edward Roach. The Virginia Supreme Court in March upheld the capital murder conviction and death sentence given to Roach, who robbed and shot a 70-year-old neighbor, Mary Ann Hughes, in Greene County. Roach, 20, has been on death row since May 1995.
LENGTH: Medium: 87 linesby CNB