A federal appeals court ruled Wednesday that the Navy could not discharge a homosexual flight instructor merely because he said he was gay.
The ruling directly challenges the military’s old policy regarding homosexuals and casts legal doubts on the Clinton administration’s new regulations.
The ruling, by the U.S. Court of Appeals for the 9th Circuit here, upheld in part an earlier decision by a federal judge in Los Angeles. That ruling said that “a military service cannot discharge a service member solely because of a statement of sexual orientation devoid of a concrete, expressed desire to act on his homosexual propensity.”
The ruling Wednesday said that the court would defer to the Navy’s judgment that homosexual conduct “seriously impairs the accomplishment of the military mission.” But the court rejected the argument that a declaration of homosexuality was reason enough for discharge.
“No similar assumption is made with respect to service members who are heterosexual” unless they are guilty of such prohibited conduct as adultery, sodomy or bigamy, the court said in a unanimous ruling by a three-judge panel.
The decision Wednesday came in the case of Keith Meinhold, a petty officer with a distinguished 13-year record who two years ago told a television interviewer, “Yes, in fact, I am gay.”
Meinhold’s forced discharge in 1992 and court-ordered reinstatement shortly afterward came under old military regulations barring homosexuals from service.
But representatives on both sides of the case, and in similar cases working their way through the courts around the nation, said Wednesday that the ruling could influence the courts as they considered lawsuits challenging the newer regulations, the so-called, “don’t ask, don’t tell, don’t pursue” policy.
A spokesman for the Justice Department said Wednesday that the government was reviewing the opinion and that it had yet to decide its next move.
After a similar ruling last year by a federal appellate panel in Washington, the department was granted a rehearing by the entire court.
In that case, the appellate panel had said that the U.S. Naval Academy acted unconstitutionally when it discharged a midshipman, Joseph Steffan, for declaring his homosexuality. The full court has yet to rule.
Meinhold’s lawyer, John McGuire, said Wednesday’s ruling could have a great effect on the Clinton policy.
“The question is, will the new policy still be constitutional, given the reasoning in this decision,” he said.
“This decision says it is improper for the government to make a presumption that a person who says he or she is gay will conduct himself or herself in prohibited conduct. That presumption is the linchpin for the Clinton administration policy.”
The new policy, a compromise that evolved after Clinton vowed to lift unconditionally the military ban on homosexuals but met stiff resistance from the Pentagon and Congress, allows homosexuals to serve and ends a longstanding practice of asking new recruits their sexual orientation and aggressively pursuing investigations of those suspected of being gay.
But the Clinton administration policy, while it seeks to distinguish between conduct and orientation, seems to continue the old practice of discharging those who declare themselves to be gay, as in the cases of Meinhold and Steffan.
The one court challenge so far filed under the new rules, in federal court in Brooklyn, involves six plaintiffs from different branches of service who contend that their only offense was in declaring themselves homosexuals.
