News - February 1996

Gays in Military Case Debated by Appeals Court

NEW YORK -- Moving closer to a widely anticipated ruling by the United States Supreme Court, a constitutional challenge to the Clinton Administration's ban on gays in the military was argued Jan. 15 before a federal appeals court in New York.

The case, Able v. USA, is the first case to directly challenge the law barring lesbians and gay men from openly serving in the military. Brought on behalf of six service members, the lawsuit contends that the so-called "don't ask, don't tell" legislation is discriminatory, based on prejudice, and in violation of free speech and equal protection.

"It's shocking that, in 1995, the government is still arguing that it can discriminate against lesbians and gay men simply because some harbor biases against us," said Beatrice Dohrn, legal director of Lambda Legal Defense and Education Fund, which brought the case jointly with the American Civil Liberties Union. "The government admits that the ban isn't about the ability of lesbians and gay men to serve. The question now is, does the Constitution allow the government to force us into the closet, because that's where many prefer us to remain."

"This ban, like its predecessor, is at war with the most basic assumptions of our Constitution," said Matthew Coles, director of the ACLU's Lesbian and Gay Rights Project, who argued the case before the court. "Laws designed to discriminate, with no justification except to coddle some people's prejudices, can not pass constitutional muster and must be struck down."

Arguments in the case were heard before a three-judge panel of the Second Circuit Court of Appeals comprised of Judge Wilfred Feinberg, a Johnson appointee, Judge Pierre N. Leval, a Clinton appointee, and Judge John M. Walker, Jr., a Bush appointee. The appeal was initially scheduled for argument on Dec. 19th, but one of judges assigned to hear the case recused himself at the last minute in order to avoid any appearance of partiality.

The challenge is on appeal from a federal district court in Brooklyn, which dealt a major blow to the military's new ban in March. The lower court ruled that the law violated the First and Fifth Amendments, and was based solely on the fears and prejudices of heterosexual troops.

"Congress may not enact discriminatory legislation because it desires to insulate heterosexual service members from statements that might excite their prejudices," wrote Judge Eugene Nickerson in a sharply-worded decision striking down the ban. "The Supreme Court has held that the First Amendment will not countenance the proscription of the expression of an idea because others find it repugnant."

The current ban -- which subjects lesbians and gay servicemembers to discharge if they say or do anything that reflects their sexual orientation -- marked the first time the military's discriminatory policy was codified into law.

Signed by President Clinton in November 1993 as a "political compromise" with Congress, the law sought to modify the previous 1981 guidelines, under which 17,000 service members were discharged, at a cost of $500 million to taxpayers, according to a study issued by the General Accounting Office.

But the new ban has done very little to change how service members become the subject of discharge proceedings when fellow officers suspect that they are gay or lesbian, say military observers. In fact, the text of the regulations remains largely unchanged.

In place of guidelines stating that "homosexuality is incompatible with military service," the current law holds that open lesbians and gay men pose "an unacceptable threat to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability."

The six plaintiffs in the case come from a variety of ranks and military branches: Lieutenant Colonel Jane Able (a pseudonym), Petty Officer Robert Heigl, First Lieutenant Kenneth Osborn, Sergeant Steven Spencer, Lieutenant Richard von Wohld, and Seaman Werner Zehr. They were not facing discharge proceedings when the case was brought

Although a ruling in this case is not likely to be handed down for several months, the U.S. Supreme Court --which has never before examined the issue -- is expected to take up the law as early as next year. Another case in Virginia, Thomasson v. Perry, in which the ACLU and Lambda filed an amicus brief, is also making its way up through the courts, as is Phillips v. Perry in Washington State.

"The military's ban on gays is explicit government-sanctioned prejudice," said Lambda's Dohrn. "We are determined to end this chapter of American history. Policies based on prejudice should never be given the power of law."

"In America, we don't pass laws that single out one group of citizens for discrimination in order to make another group more comfortable," said the ACLU's Coles. "But that is what this law does: it keeps lesbians and gay men, who are every bit as capable as heterosexuals, out of the military just because the government thinks they make some heterosexuals nervous. That is not acceptable."

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