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Court Lets Stand Ruling Saying Prejudice Cannot Justify Gay Ban

By Joan Biskupic
The Washington Post

WASHINGTON

The Supreme Court Monday let stand a ruling that said the prejudice of others, by itself, cannot justify the military's ban on homosexuals, giving momentum to President-elect Bill Clinton's promise to end the U.S. prohibition on gay people in the armed services.

Between 1980 and 1990, about 17,000 men and women were discharged from the armed services because of their homosexuality, about 1,500 annually, according to a General Accounting Office report issued in June.

The Bush administration had urged the court to take the case of Dusty Pruitt, who was denied a promotion to major in the Army Reserve and eventually discharged when military officials read a newspaper interview in which she acknowledged being a lesbian.

Pruitt, a Los Angeles minister, sued for reinstatement. A federal district court dismissed the lawsuit, saying Pruitt failed to make the case that her rights had been violated. But an appeals court last year revived it, saying Pruitt should have a chance to argue that she has been denied her Fifth Amendment right to equal protection under the law.

Without comment, the Supreme Court let stand the appeals court ruling in Cheney v. Pruitt, allowing Pruitt to continue seeking reinstatement into the Army Reserve.

The 9th U.S. Circuit Court of Appeals had rejected the proposition that social disapproval of homosexuality justifies the Army's regulation and said the government must come up with other reasons for proving that the discrimination is "rationally related to a permissible governmental purpose."

It is uncertain what kinds of evidence the government might try to put forward to meet the heightened test required by the appeals court.

But the overriding issue could become moot if Clinton lifts the military regulation, as he has insisted he will.

"I'm very optimistic Clinton will do what he promised," Pruitt said Monday. She added that she will continue to press her lawsuit to rejoin the reserve and win possible back pay. Pruitt had served in the Army from 1971 to 1976. She left active duty to become a minister, serving in the reserve for 10 years.

Lawyers for Pruitt had asserted that the high court should not take the case because Clinton's presidency would alter the litigation.

Solicitor General Kenneth W. Starr countered in his petition that, "This court should not make its docketing decisions based on statements made by candidates running for public office.

"The current policy remains in full force; whether it will be changed, when, and how are purely matters of extra-record speculation." The solicitor general also noted that Clinton said he will be consulting with numerous people to determine how to handle the regulation and suggested it might be awhile before the ban would be rescinded.

The government has long contended that the presence of gay people in the military "seriously impairs the accomplishment of the military mission." It has barred people "who engage in homosexual conduct or who, by their statements, demonstrate a propensity to engage in homosexual conduct."

There was no evidence in court documents that Pruitt engaged in homosexual conduct while in the reserves, but the government's petition said she stated in a 1983 Los Angeles Times article that she had gone through two homosexual marriage ceremonies and one divorce proceeding, suggesting a propensity. It also said she did not rebut a presumption that she had committed homosexual acts.

Pruitt was honorably but involuntarily discharged in 1986.

The appeals court's rejection of the military's reliance on community hostility toward homosexuals for the ban hinged in part on a 1984 Supreme Court case in which a majority said social disapproval of interracial marriage did not justify denial of child custody.

Starr tried to distinguish interracial marriage, which cannot be prohibited, with homosexual sodomy, which nearly half of the states outlaw. The Supreme Court in 1986 narrowly upheld a Georgia law making it a crime to engage in homosexual acts.

"If homosexual conduct may constitutionally be criminalized," Starr wrote, "then homosexuals do not constitute" a class entitled to special protection in court hearings.

Gay-rights activists praised the Supreme Court's position.

"This is a further sign that the military's policy of discriminating against lesbian women and gay men is coming to an end," said Jon W. Davidson of the ACLU Foundation of Southern California, one of the groups that represented Pruitt.