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Supreme Court Maintains DoD Policy on Homosexuals

By Joan Biskupic
The Washington Post

The Supreme Court Monday rejected a challenge to the "don't ask, don't tell" military policy on homosexuals, leaving in place for now one of the most controversial stands of President Clinton's administration and one that continues to dog him during the current presidential campaign.

The case, brought by a former Navy lieutenant who had a stellar record but declared in a letter to commanding officers, "I am gay," marked the first dispute over the 1993 "don't ask, don't tell" mandate to reach the high court.

By declining to take the case, the justices leave intact a historic policy that for the first time allows gays to serve in the military so long as they kept silent about their sexual orientation.

Interest in the legal fate of the policy was heightened because the justices ruled earlier this year that Colorado could not add an amendment to its constitution that denied equal rights to homosexuals. In that May ruling, the high court emphasized that government cannot show "animus" toward people based on their sexual orientation nor make any class of people "a stranger to its laws."

Monday's action, taken in a one-sentence order and without any comment from the justices, was not a decision on the merits of the military's policy and does not bar future constitutional review of the military policy, which is at the core of numerous other lawsuits working their way up to the high court.

The Navy lieutenant who filed the suit, Paul G. Thomasson, was discharged in 1994 after declaring his homosexuality. He claimed that the policy violated his right of free speech and unconstitutionally discriminated against him based on sexual orientation. Other cases pending in lower courts more broadly challenge the policy's prohibition on homosexual statements and conduct.

In their action Monday, the justices left in place a ruling by the Richmond, Va.-based 4th U.S. Circuit Court of Appeals emphasizing the military's broad authority to regulate its own affairs and the importance of judicial regard for a "political consensus."

The "don't ask, don't tell" policy was the product of a strained compromise reached between Congress and Clinton during the early months of his presidency.

Clinton, who had promised during his 1992 campaign to lift the ban on gays in the military, saw the policy as a face-saving concession, while many members of Congress and the Pentagon feared that allowing gays in the military would disrupt the troops.

The appeals court said it could not "award by judicial decree what was not achievable by political consensus. Our power to resolve particular controversies carries with it an obligation to respect general solutions."

The appeals court also said the policy reflected a legitimate legislative choice based on the military's need for unit cohesion.

"I think we had a very compelling case," Thomasson's lawyer, Allan B. Moore, said Monday. "His career came to an end because he wasn't willing to live under a gag rule."

Thomasson, 33, who had served in the Navy 10 years, most recently as a personal aide to four admirals, had received the highest possible evaluations, according to court filings. He now manages a restaurant on Capitol Hill, Moore said.

In Thomasson's petition to the justices, he said, "At issue is whether the government may restrict the freedom of an accomplished and dedicated military officer to utter a fundamental statement about who he is, solely on the basis of the anticipated discomfort of others."

The Justice Department, which had urged the court not to take the case, noted that all of the appeals courts that have reviewed the policy have upheld it, so there was no reason for the high court to resolve any split among the lower courts.

The department also emphasized that, to Congress, the statute at issue did not embody "an irrational prejudice against gays and lesbians." Justice Department officials also noted that past court rulings have said the military "constitutes a specialized community governed by a separate discipline from that of the civilian."

The policy allows homosexuals to serve in the military but requires that service members keep their sexual orientation quiet. If an officer professes homosexuality, he or she faces possible discharge.

Thomasson protested the fact that an officer's words, not actions, could be grounds for dismissal.