THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Friday, March 31, 1995 TAG: 9503310565
SECTION: FRONT PAGE: A1 EDITION: FINAL
SOURCE: FROM WIRE REPORTS
DATELINE: NEW YORK LENGTH: Long : 109 lines
A federal judge struck down as unconstitutional Thursday the government's ``don't ask, don't tell'' policy of allowing gays and lesbians to serve in the military only if they keep their sexual orientation to themselves.
In a blunt, unsparing 39-page opinion, U.S. District Judge Eugene H. Nickerson said provisions in the law that allowed the military to discharge troops who openly declared themselves to be gay violated both the free speech and equal protection clauses of the Constitution.
``Hitler taught the world what could happen when the government began to target people not for what they had done but because of their status,'' Nickerson wrote.
Although it reflects only one judge's opinion, Thursday's ruling is the first to explicitly address the constitutionality of the ``don't ask, don't tell'' law. Legal experts said it is likely to become the test case for the new policy on gays in the military. Should that happen, it could reopen a politically explosive issue that did considerable damage to President Clinton when he first addressed it shortly after his inauguration.
Lawyers for the plaintiffs cautioned that the ruling doesn't prevent the Pentagon from taking action in other cases, including that of a local sailor who has been at the forefront of the movement challenging the policy.
Lt. j.g. Dirk Selland, 26, a former submariner, said Thursday that he has been notified by Navy Secretary John Dalton that he is in violation of ``don't ask, don't tell'' and has been asked to leave the service.
The decision, which upheld a recommendation by a board of inquiry last summer, ends Selland's appeals within the Navy. He will be discharged April 28 unless a federal court intervenes on his behalf.
Meanwhile, Defense Department spokesman Kenneth Bacon said the Pentagon had asked the Justice Department to appeal Nickerson's ruling. He said the military would continue to enforce the provisions because the ruling applies only to the six defendants, all of whom are service members who had violated military policy by openly announcing they were gay.
However, gay and lesbian organizations said the ruling, while limited to the six plaintiffs, most likely would have a profound effect on future cases.
Before the changes by Clinton, the Pentagon had an absolute prohibition on gays in uniform, and any admission of homosexual orientation was considered grounds for dismissal.
The ``don't ask, don't tell'' policy was enacted Nov. 30, 1993, and it maintains the prohibition on anyone found to have engaged in homosexual acts or to have married or tried to marry someone of the same sex. In addition, any service member who announces he or she is gay can be discharged.
The Clinton policy allows homosexuals to serve in the military so long as they keep their orientation private and do not act on it. The new policy states that no one in the military is to ask anyone about sexual status.
Nickerson limited himself to the most controversial aspect of the new law - the ``don't tell'' provision. He ruled it unconstitutional because it allows the government to guess about how someone would behave on the basis of what they had said about their sexual status. This he called a ``draconian'' assumption, equivalent to reasoning Hitler used to exterminate Jews.
In the past, Nickerson wrote, the Supreme Court has not allowed an admitted addict to be prosecuted on a misdemeanor drug charge, rejecting the theory that ``his addiction justified an inference that he had possessed or in the future would possess drugs.'' In that case, Nickerson pointed out, the defendant's status as a narcotics addict was self-acquired. ``How much worse is it to infer the commission of acts from one's homosexual status, which may well be acquired at birth or in early childhood?''
KEYWORDS: HOMOSEXUAL MILITARY PERSONNEL CHRONOLOGY by CNB