Lawyers Says Military Policy On Gays Illegal

The military’s “don’t ask, don’t tell” policy is unconstitutional and fosters discrimination against gays and lesbians in the military, an attorney for a discharged gay sailor argued in federal court Monday.

The regulation creates a different set of rules for heterosexuals than for homosexuals, said attorney Matt Coles, representing former petty officer Mark A. Philips.

“You can’t have two sets of rules,” Coles told a federal appeals court panel.

“If Mark had said that he was seeing a wonderful woman we wouldn’t be here right now,” Coles said.

Philips, 25, was discharged last April after U.S. District Judge William Dwyer reluctantly upheld the Navy’s recommendation under the Clinton administration’s policy of excluding active homosexuals from the military.

The policy states that gays may serve in the military but cannot publicly disclose their homosexuality. The military cannot ask recruits about their sexual orientation or purge gays from service unless they announce their homosexuality.

Philips was kicked out after disclosing that he was having a homosexual relationship off base. He appealed to the 9th Circuit Court of Appeals.

The military’s policy violates constitutional guarantees of equal protection and free speech and is based “on the fear that heterosexual troops will be discomforted by lesbians and gay men,” Coles argued.

Roy Hawkens, a Justice Department attorney representing the secretary of the Navy, told the three-judge panel the policy is the only way to maintain military readiness.

“There are no parallels in civilian life to the rigors” that members of the military endure, Hawkens said. “It’s critical to recognize the purpose of the military.”

Hawkens argued that current policy is designed to “maintain privacy, avoid sexual tension and maintain unit cohesion.”

A decision on Philips’ case is expected sometime in the next six months, attorneys for both sides said. Any ruling is likely to be appealed to the U.S. Supreme Court.

Coles, who is also the director of the National Lesbian and Gay Rights Project for the American Civil Liberties Union, said the appeal is the first case to focus on the conduct portion of the ban.

In a news conference after the court hearing, Coles said the policy permits heterosexuals to engage in private sexual conduct, but forbids all intimate relationships for lesbians and gay men.

“The basic premise to our appeal is that this policy violates the Constitution by creating a set of rules that apply to only one set of people and you can’t do this in this country,” Coles said.

Philips, who was present at Monday’s hearing, said he hopes to be reinstated and finish out the two years he had on his military contract before being kicked out.

“I think it’s important for me but it is also much more important for all those others who are living a lie,” he said. “I want the policy to change because I don’t think anyone has the right to regulate thought or opinion.”

Philips performed administrative duties with an ordnance disposal team at the Bangor submarine base near Bremerton.

He was serving aboard the USS Nimitz when he disclosed his homosexuality shortly after President Clinton was elected 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.

“The policy actually encourages someone to lie, but Mark decided to tell the truth and take a stand,” Coles said.