THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Wednesday, December 6, 1995 TAG: 9512060418
SECTION: FRONT PAGE: A1 EDITION: FINAL
SOURCE: BY DALE EISMAN, STAFF WRITER
DATELINE: RICHMOND LENGTH: Medium: 97 lines
Thirteen federal judges on Tuesday wrestled with the question of military service by homosexuals, by all appearances finding it as troubling as have the generals, admirals and politicians in Washington.
In a 90-minute hearing, members of the 4th U.S. Circuit Court of Appeals grilled lawyers on both sides of a suit testing the Pentagon's ``don't ask, don't tell'' policy. Their rapid-fire questions, some suggesting support and others disdain for the policy, underscored the complexity of the constitutional issues it raises.
The case requires the court to weigh the judiciary's traditional deference to the military's judgment about how the services are run against the Bill of Rights' guarantee of free speech and court decisions on every American's right of privacy.
One judge, J. Harvie Wilkinson III of Charlottesville, noted early in the hearing that the policy is the product of long and delicate negotiations between ``the political branches'' of government - Congress and the president.
In that context, ``Isn't it rash for us to say that discharges reached under this statute are unconstitutional?'' he asked.
But minutes later, Wilkinson sounded incredulous as he got Deputy Solicitor General Edwin S. Kneedler to admit that the samestatute is the only federal law permitting a government employee to be discharged for a simple statement: ``I am gay.'' No proof that a service member has committed homosexual acts is required because the statement creates a presumption of conduct.
Other judges also took note of that feature of the policy. Diana G. Motz of Baltimore acidly asked whether the military would presume that a soldier who proclaims himself ``an old-fashioned Mormon'' is a bigamist.
The unusual proceeding - appeals courts usually sit in panels of three judges - came in a suit brought by former Navy Lt. Paul Thomasson. His challenge to the policy is the first to progress so far in the court system and is widely viewed as the one most likely to become a vehicle for a U.S. Supreme Court decision that finally would resolve the issue.
Thomasson's lawyer, Allan B. Moore, told the judges that the military's policy is grounded in ``the irrational concerns of some heterosexuals. His client's only offense was having ``the courage and honesty to say who he is,'' Moore said.
Thomasson, who lives in Washington, was working in the Navy's personnel office in March 1994 when the Navy formally announced the ``don't ask, don't tell'' policy. The following day, he presented four admirals in his chain of command with a letter declaring that ``I am gay.''
The Navy began court-martial proceedings a week later. But Thomasson continued to serve and earn glowing evaluations from his bosses - at least one flag officer testified that the young lieutenant had the talents of a potential admiral - until finally being discharged earlier this year.
Thomasson originally sought an injunction to keep the Navy from discharging him; he was booted from the service after a federal district judge ruled against him. He has pressed the case in hopes of getting the policy declared unconstitutional.
``Every single Navy witness who's ever served with the man has testified that he is outstanding,'' Moore said. He called 21 fellow sailors as witnesses for Thomasson when the case was tried in a federal district court early this year, he reminded the judges.
``What harm has Mr. Thomasson done to the military?'' Judge Kenneth K. Hall asked Kneedler.
There is no need to prove any harm by an individual gay soldier or sailor to justify a discharge, Kneedler asserted. The law reflects Congress' conclusion that service by openly gay members undermines the discipline that is essential to military units, he said, and Congress has a right to make that decision.
Deputy Solicitor General Kneedler argued that service members like Thomasson, who are processed for discharge based solely on their statements, have an opportunity to present evidence rebutting the law's presumption that they have ``a propensity to commit'' homosexual acts.
But Moore argued that such evidence is impossible to obtain. At his court-martial, Thomasson declined to testify, telling a panel of superior officers that ``I will not go further in degrading myself by disproving a charge about sexual conduct that no one has made.''
Tuesday's hearing also included a challenge to the policy by the Family Research Council, a conservative group which argues that the court should read the law as an attempt by Congress to ban all military service by gays.
William Woodruff, a Campbell University law professor representing the group, told the judges the administration has misinterpreted the law by declaring that gays can stay in uniform if they keep their orientation secret.
The appeals court gave no indication Tuesday of how soon it might decide the case; typically, there is a gap of several weeks between oral arguments and a final opinion. The case is not expected to reach the Supreme Court until late in 1996. ILLUSTRATION: Color photo
Lt. Paul Thomasson told superiors he was gay - a statement that
created a presumption of conduct.
KEYWORDS: GAYS IN THE MILITARY U.S. NAVY TEST CASE by CNB