THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Monday, September 11, 1995 TAG: 9509110068
SECTION: FRONT PAGE: A3 EDITION: FINAL
SOURCE: ASSOCIATED PRESS
DATELINE: WASHINGTON LENGTH: Medium: 75 lines
Lt. Paul Thomasson fired off a letter to his boss - the admiral enforcing the Navy's policy against homosexuals - days after President Clinton's ``don't ask, don't tell'' policy went into effect.
``I am gay,'' he wrote.
Despite Thomasson's stellar 10-year record and the support of his commanding officer, the Navy moved to discharge him.
Thomasson fought back in court, challenging the policy as unconstitutional. His case goes before the 4th U.S. Circuit Court of Appeals, which is sitting in Alexandria this week. It is the first challenge of the Clinton policy to reach the federal appeals court level.
A second challenge to the policy - Able vs. Perry - is slated to be argued before the 2nd U.S. Circuit Court of Appeals later this year.
The two cases illustrate how different judges can hear similar arguments on the same issue and reach opposite conclusions.
They also cast doubt on the Clinton administration's claim that people would no longer be discharged from the military merely for being gay or lesbian.
At the crux of the new policy is the presumption that someone who says he or she is homosexual would engage in homosexual activity, which is prohibited. To remain in uniform, openly gay members must prove they won't have gay sex.
So far, four people have ``rebutted the presumption'' that because they are gay they would engage in homosexual activity, according to court papers. But ``two effectively recanted and said they were confused and not gay,'' said C. Dixon Osburn, co-executive director of the Servicemembers Legal Defense Network, which advises gay and lesbian service members and helps them find lawyers.
Pentagon officials couldn't say how many service members have attempted to challenge the theory. But the discharge rate under the new policy has not changed significantly from the rate under the old policy, according to figures provided by the Defense Department.
Neither Thomasson nor the six Able plaintiffs tried to prove that they would not engage in gay sex. Rather, they attacked the policy on constitutional grounds.
In Thomasson's case, he came armed with glowing performance evaluations - even a recommendation from his admiral that Thomasson be retained and promoted, almost a year after revealing his sexual orientation.
In the Able case, the six plaintiffs presented expert testimony from a psychiatrist who said gays in the military were no better and no worse at their jobs than heterosexuals, and from a military analyst who said the presence of homosexuals does not affect a unit's ability to function.
Thomasson lost his case and has been discharged from the Navy. The six Able plaintiffs won theirs, and the right to remain in uniform while the government appeals.
Ruling in the Thomasson case, U.S. District Judge Claude M. Hilton said the Clinton administration policy does not violate service members' free speech or equal protection guarantees.
``While it is true that some service members may view themselves as homosexuals but nonetheless remain celibate, it would not be rational to develop military personnel policies on the basis that all homosexuals will remain celibate or that they will not be sexually attracted to others,'' Hilton wrote.
In Able, U.S. District Judge Eugene Nickerson said the policy is ``nothing short of Orwellian'' because it equates sexual orientation with misconduct.
``To presume from a person's status that he or she will commit undesirable acts is an extreme measure,'' he wrote. ``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.''
KEYWORDS: HOMOSEXUALS APPEAL GAYS IN THE MILITARY by CNB