DATE: Thursday, July 3, 1997                TAG: 9707030651

SECTION: FRONT                   PAGE: A3   EDITION: FINAL 

SOURCE: THE WASHINGTON POST 

                                            LENGTH:   54 lines

``DON'T ASK, DON'T TELL'' PREJUDICIAL, JUDGE SAYS

A federal district judge in New York, who was one of the first to invalidate the Clinton administration's ``don't ask, don't tell'' law on homosexuals in the military, expanded his ruling Wednesday and declared the policy was designed to encourage anti-gay prejudice.

In 1995, U.S. District Court Judge Eugene H. Nickerson held that the law violated the free speech rights of homosexual personnel. Wednesday he went further, saying rules prohibiting homosexual conduct violated the constitutional right of gays and lesbians to equal protection of the laws.

``It is hard to imagine why the mere holding of hands off base and in private is dangerous to the mission of the armed forces if done by a homosexual but not if done by a heterosexual,'' Nickerson wrote in a 48-page opinion.

Homosexual rights advocates applauded the decision, saying that its wide sweep gives them hope that the New York case might become one that will ultimately place the Clinton administration's controversial policy before the Supreme Court.

``We are now one step closer to having this archaic law overturned once and for all,'' said Matt Coles, director of the American Civil Liberties Union's Lesbian and Gay Rights Project. Beatric Dohrn, legal director of the Lambda Legal Defense and Education Fund, expressed delight at the scope of Nickerson's ruling. ``It's as broad and as deep as the significance of this case could be,'' she said.

So far, however, federal appeals courts have upheld the law.

Wednesday's ruling was as direct and critical of the Pentagon policy as was the judge's 1995 ruling, when Nickerson likened the government's policy toward homosexuals to Hitler's persecution of the Jews. The 2nd U.S. Circuit Court of Appeals sent that ruling back to the judge, saying he had dealt only with the free speech rights of the six homosexual military personnel who had sued to block the policy as unconstitutional.

The appeals court told Nickerson he needed also to examine the Pentagon's prohibitions on certain forms of conduct mentioned in the policy. The judge said he could find no acceptable basis for those rules. ``There can be no doubt that the purpose of the act is to foster or at least acquiesce in the prejudice of some heterosexuals,'' the judge declared.

Military law allows the dismissal of ``someone who, for example, kisses or holds hands off base in private or has done so before entering the service,'' the judge said. Yet, he said ``no such sanction is imposed on a heterosexual who . . . does the same thing.''

``The obvious basis for defining `homosexual act' to include such an act as holding hands was not because the act is inherently dangerous but because of what the act says about the actor, namely, `I have a homosexual orientation,' '' the judge wrote. KEYWORDS: POLICY GAYS IN THE MILITARY HOMOSEXUAL GAYS

LESBIANS RULING

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