THE VIRGINIAN-PILOT
Copyright (c) 1994, Landmark Communications, Inc.
DATE: Thursday, September 1, 1994 TAG: 9409010580
SECTION: FRONT PAGE: A1 EDITION: FINAL
SOURCE: BY JOHN F. HARRIS, THE WASHINGTON POST
DATELINE: WASHINGTON LENGTH: Medium: 67 lines
A federal appeals court Wednesday ruled that the military cannot discharge sailor Keith Meinhold solely for announcing he is a homosexual, a decision that gay-rights advocates say spells legal trouble for the Clinton administration's new ``don't ask, don't tell'' policy.
Meinhold announced on a national news broadcast two years ago, ``Yes, I am in fact gay,'' but the Ninth U.S. Circuit Court of Appeals in San Francisco ruled that this statement alone does not prove he acts on his desires and struck down the Navy's decision to throw him out of the service.
The Navy tried to discharge Meinhold under the old ban on homosexuals, but his case has implications for the new one, which allows gays to serve as long as they keep their orientation private and do not act upon it.
``On the merits, we defer to the Navy's judgment that . . . people who engage in homosexual conduct or who demonstrate a propensity'' to do so do not belong in uniform, the appeals court said. But the judges ruled the Navy was wrong to ``discharge Meinhold solely because of a statement or orientation devoid of any concrete, expressed desire or intent to act on his homosexual propensity.''
U.S. District Judge Terry J. Hatter in Los Angeles earlier had struck down not only Meinhold's dismissal but - in a decision that drew nationwide attention - issued an injunction prohibiting the military from discharging anybody simply for saying he or she is gay.
The Pentagon quickly asked and received from the Supreme Court a temporary stay of Hatter's broader ruling until the appeals court could issue an opinion. Wednesday, the appeals court said Hatter went too far in applying the case to the entire military. The court noted that Meinhold had filed suit only on his own behalf and had not filed a class-action suit on behalf of all gay service members.
Even this narrower ruling, however, was celebrated by gay advocates.
``The new (don't ask, don't tell) policy allows people to be thrown out simply if they say they're gay,'' said Dixon Osburn, of the Servicemember's Legal Defense Network. ``That wouldn't fly under this.''
Justice Department and Pentagon spokesmen declined to comment on the ruling, saying officials were still reviewing it.
Meinhold, 32, a petty officer who operates airborne sonar equipment, said he has not experienced hostility from fellow sailors after they learned he is gay, a fact he says argues against the military's position that mixing heterosexuals and homosexuals would be bad for morale.
``I've been treated very well,'' he said in a phone interview Wednesday. ``My experience has been that there are no problems with morale and unit cohesion.''
Ultimately, people on both sides of the issue say the fate of Clinton's compromise policy - crafted after he backed off a campaign pledge to remove the ban on gays in the military - is going to remain uncertain until the Supreme Court rules on the issue. ILLUSTRATION: Color photo
Keith Meinhold faced a discharge for broadcasting he was gay.
KEYWORDS: GAYS IN THE MILITARY TRIAL RULING by CNB