THE VIRGINIAN-PILOT
Copyright (c) 1996, Landmark Communications, Inc.
DATE: Saturday, April 6, 1996 TAG: 9604060286
SECTION: FRONT PAGE: A1 EDITION: FINAL
SOURCE: BY WARREN FISKE, STAFF WRITER
DATELINE: RICHMOND LENGTH: Medium: 80 lines
A federal appeals court on Friday upheld President Clinton's ``don't ask, don't tell'' policy for gays in the military.
In a 9-4 decision, the 4th U.S. Circuit Court of Appeals said ``the judiciary has no authority to make rules for the regulation of military forces.''
The ruling was issued in the case of former Lt. Paul Thomasson, who was dismissed from the Navy last June after writing a note to his commanding admiral stating: ``I am gay.''
Although there are at least eight other legal challenges nationwide to the controversial policy, Thomasson's case is the first to be ruled on at the federal appeals level.
Thomasson said in an interview soon after the ruling that he once hoped to become ``the Navy's first openly gay admiral,'' and is considering an appeal.
``I want to do what's best for the cause, and if that means taking my case to the Supreme Court, I'll do it,'' he said.
To date, judges across the country have shown little agreement in their rulings on the policy. In the eight other cases that have been decided in federal district courts, judges have ruled five times that the policy is legal and three times that it is unconstitutional.
That ambivalence was found among the nine appeals court judges who upheld the policy on Friday. They agreed that the overarching principle is that the courts have no power to overrule a president's military policies.
``To do so would not only overturn the efforts of the elected branches of government to resolve a significant question of national military policy,'' said Judge J. Harvie Wilkinson III, in writing the majority opinion. ``It would also violate much plain and settled Supreme Court precedent.''
They said the policy is a political matter. ``In the end, the best service the courts can render is to return this debate to where it began - to the halls of democratic governments, where many Americans affected by decisions such as these can participate directly in their resolution.''
But six of the nine judges upholding the policy added that they believe the regulations are unfair to gays. They said the policy fails to live up to the president's statements that gays should be expelled only if openly exhibiting homosexual conduct.
``The statute requires the discharge of homosexual service members who merely say they are homosexual . . . regardless of whether they have actually engaged in homosexual conduct or are likely to engage in such conduct,'' wrote Judge J. Michael Luttig.
Thomasson, 33, said he admitted he is gay because he wanted to express ``strong exceptions'' to the new law, enacted in 1993. He was working in Washington at the Bureau of Naval Personnel at the time. Thomasson has refused to say whether he had homosexual relationships while in the military.
The Navy has acknowledged that Thomasson amassed an ``enviable'' record during his 10 years of service. One evaluation by a rear admiral described him as ``a true front-runner who should be groomed for the most senior leadership in tomorrow's Navy.'' He had a commendation letter in his file from Gen. Colin Powell, former chairman of the Joint Chiefs of Staff.
Even so, the Navy ruled that Thomasson's announcement of his sexual preference ``gave rise to a propensity or intent to engage in homosexual conduct'' and demonstrated a lack of ``acceptable leadership qualities required of an officer in his grade.''
Thomasson has argued that the policy is unconstitutional because it equates the words ``I am gay'' with engaging in sexual acts banned by the military.
Judge Kenneth K. Hall wrote in a dissent that Thomasson was being punished for ``nothing more than an expression of his state of mind. The expression was not illegal, and the fact admitted not a grounds for discharge.''
Hall added: ``Lt. Paul Thomasson's career is over because it is presumed he will misbehave in a manner that is assumed to incite the prejudices of his colleagues, whom it is speculated will abandon their duties to defend the United States rather than tolerate him in their midst.'' ILLUSTRATION: Color photo
Former Navy Lt. Paul Thomasson
KEYWORDS: HOMOSEXUAL GAYS IN THE MILITARY POLICY by CNB