Court Refuses To Block Discharge Gay Machinist’s Mate Could Be Booted From Navy Today

A federal appeals court panel has refused to delay a judge’s ruling that paves the way for a gay petty officer to be discharged from the Navy.

Tuesday’s action by a two-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco means Machinist’s Mate 2nd Class Mark Philips could be discharged today, said Jett Whitmer, Philips’ attorney.

Philips, in a telephone interview Tuesday night, said he was prepared for that eventuality and will start looking for another job.

“Tomorrow will be officially the last day. Today is probably the last day I do anything but pick up things and move,” he said.

The appellate panel refused to grant Whitmer’s emergency motion, filed Friday, asking that Philips be allowed to stay in the service until his appeal of U.S. District Judge William Dwyer’s ruling is resolved.

Dwyer on March 17 reluctantly upheld the Navy’s recommended discharge of Philips under the Clinton administration’s “Don’t ask, don’t tell policy” of excluding active homosexuals from the military. Dwyer’s ruling was tinged with regret.

“A service member may not be ischarged solely because of homosexual status, but may be because of homosexual acts,” Dwyer wrote.

“The current regulations reflect that distinction, and are a modest step toward tolerance. They still result, however, in a loss to the nation of soldiers and sailors who serve with honor. This case is an example.”

A federal judge in New York last week ruled the “don’t ask, don’t tell” policy is unconstitutional. That decision continued an order barring the Defense Department from starting discharge proceedings against six plaintiffs.

That ruling doesn’t directly apply to Philips’ case, but Whitmer has said it could be helpful in his appeal.

“We’re pinning hopes on the appeal,” Whitmer said.

Added Philips: “It’s a very good sign. Anytime you have conflicting rulings and you’re on the losing side, that means someone else out there is on your side.”

Philips performed administrative duties with an explosive ordnance disposal team at the Bangor submarine base near Bremerton, west of Seattle. He was serving aboard the aircraft carrier USS Nimitz when he disclosed his homosexuality shortly after Clinton was elected president in November 1992. Clinton had vowed to end the military ban on homosexuals.

In December 1992, while responding to questions from his ship’s legal officer, Philips said he had sex with men and would continue to do so.

In July, a Navy panel recommended Philips be honorably discharged under the new policy, which took effect Feb. 28, 1994.

Philips sued, contending the policy violates First Amendment guarantees of free speech, Fifth Amendment rights of equal protection and his right to privacy.