Gays In Military Policy Ruled Unconstitutional

A federal judge in Brooklyn ruled Thursday that the Clinton administration’s policy on gays in the military is unconstitutional because it violates federally protected rights to free speech and equal protection.

In a tersely worded 39-page decision, U.S. District Judge Eugene Nickerson declared the so-called “don’t ask, don’t tell” policy “Orwellian” and “invalid” under the First and Fifth amendments.

Thursday’s ruling, the first legal challenge to the policy, was limited to only the six plaintiffs who had brought the case, but it could have wider ramifications if it reaches the U.S. Supreme Court.

The government long has banned gays from military service, but this policy, passed by Congress in 1993, allows gays to serve if they conceal their sexual orientation. It discharges them if they acknowledge their homosexuality.

Nickerson said the policy is “inherently deceptive” and “offers powerful inducements to homosexuals to lie” about their sexual orientation to stay in the service. He said that by admitting they are gay, the plaintiffs “have done no more than acknowledge who they are” but that it was “transmogrified into a statement of misconduct.”

“To presume from a person’s status that he or she will commit undesirable acts is an extreme measure,” Nickerson wrote. “Hitler taught the world what could happen when the government began to target people not for what they had done but because of their status.”

Nickerson’s decision barred the government from firing the six gay service members who brought the suit. The military had begun proceedings to discharge three of the plaintiffs. Four reservists and two activeduty service members filed the suit.

Deputy White House press secretary Ginny Terzano, in Florida with President Clinton, said, “I don’t think you should take as a given that this is going to be appealed.”

Terzano said the White House was reviewing the decision and other pending cases that challenge the policy. She said the White House might recommend appealing another case with more favorable facts.

Justice Department spokesman John Russell said, “We believe the challenged policy is constitutional and we remain committed to defending it.” He said no decision had been made regarding an appeal.

Although the plaintiffs’ lawyers noted that Nickerson’s ruling was limited to their clients, they hailed it as a “first step.”

“I’m thrilled obviously that my clients’ constitutional rights have been vindicated,” said David Braff, a litigation partner at Sullivan & Cromwell who was the plaintiffs’ lead attorney. “This is clearly the correct decision. There is not room for question that the policy violates the Constitution, and I have no doubt that the Court of Appeals will sustain it.”

Beatrice Dohrn, a lawyer for the Lambda Legal Defense and Education Fund, which joined the suit, cautioned that the decision does not protect other gays in the military.

“We’re very concerned that lesbian and gay service members should understand that we have struck a very important blow to the ban and that this is a first step,” Dohrn said. “… Today, or tomorrow, a person other than our six plaintiffs won’t be treated any differently by their commanding officer if they announce they are a homosexual.”

None of the plaintiffs could be reached for comment, their lawyers said.

Lawyers for the government had argued to Nickerson that homosexuals impaired military readiness, increased sexual tension, threatened heterosexuals’ privacy and polarized military units that depend on cohesion for survival.

But Nickerson said this argument was based on “irrational prejudices,” writing that “such a belief does not justify a discriminatory policy.”

The judge noted there was no more privacy for heterosexuals after the policy was enacted: “The showers, the latrines and the barracks became no more private than they were before.”