THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Wednesday, September 13, 1995 TAG: 9509130450
SECTION: LOCAL PAGE: B2 EDITION: FINAL
SOURCE: ASSOCIATED PRESS
DATELINE: ALEXANDRIA LENGTH: Medium: 60 lines
The military's ``don't ask, don't tell'' policy is irrational and unconstitutional because it equates the words, ``I am gay,'' with illegal homosexual acts, the lawyer for a gay former Navy lieutenant argued in court Tuesday.
But an attorney for the government contended that the policy is fair because open homosexuals have the opportunity to ``rebut the presumption'' they will have gay sex.
The case of former Lt. Paul Thomasson was argued before the 4th U.S. Circuit Court of Appeals in a special expedited session. It is the first legal challenge to the Clinton administration's policy to reach the federal appeals level.
The Navy had no legal right to expel Thomasson merely because he sent a memo to his commanding admiral saying, ``I am gay,'' his attorney, Alan B. Moore, told the three-judge panel.
``What is not rational about the policy is that it targets homosexuals who speak,'' Moore said. Those gay military members who do not say they are homosexual may continue to serve, even if they attend gay rights marches or go to gay bars, and this is known within their unit, he said.
The policy violates Thomasson's right of free speech and equal protection under the law, Moore contended.
But Deputy Solicitor General Edwin Kneedler argued that a statement of orientation indicates a propensity to commit homosexual acts.
``The military doesn't have to wait until they actually occur,'' Kneedler told the judges. And, he said, military members can try to convince a military panel that they will not commit homosexual acts, but Thomasson did not do that.
Thomasson, 32, was kicked out of the Navy in June, after a U.S. district judge ruled against him.
But Judge Diana Motz said gay military members cannot ``rebut the presumption'' merely by saying they won't commit homosexual acts. ``You have to say, `I was joking,' or `I was drunk,' or `I was kidding,' '' she said.
Kneedler disagreed, saying three out of the first 20 military members who were charged under the new policy succeeded in rebutting the presumption they would engage in homosexual acts.
Under further questioning from Motz, he acknowledged that one had done so by saying he was unsure of his orientation.
``So you have to take back your words,'' Motz said.
Words and their definitions were a big issue throughout the arguments, which lasted about an hour.
Judge J. Michael Luttig pressed Moore to define homosexuality, asking whether it isn't ``a propensity to engage in homosexual conduct.''
``Sexual orientation is an ingrained, fundamental aspect of identity . . . and it cannot be equated with conduct,'' Moore said.
The court can issue a ruling at any time.
KEYWORDS: GAYS IN THE MILITARY U.S. NAVY by CNB