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- <text id=93TT2054>
- <title>
- Aug. 02, 1993: See You In Court
- </title>
- <history>
- TIME--The Weekly Newsmagazine--1993
- Aug. 02, 1993 Big Shots:America's Kids and Their Guns
- </history>
- <article>
- <source>Time Magazine</source>
- <hdr>
- LAW, Page 29
- See You In Court
- </hdr>
- <body>
- <p>Gay activists hope to overturn Clinton's gay policy, but the
- odds--and Sam Nunn--are against them
- </p>
- <p>By DAVID VAN BIEMA--With reporting by Julie Johnson and Bruce van Voorst/Washington
- </p>
- <p> Last week in the cavernous hearing room of the Senate Armed
- Services Committee, Sam Nunn was again belaboring the proposed
- regulation on homosexuals in the military. The Senator from
- Georgia wanted to nail down exactly what sorts of statements
- by a soldier would trigger a "rebuttable presumption" that he
- or she was engaged in gay conduct--a legal finding that, despite
- its name, experts say is almost impossible to rebut.
- </p>
- <p> With studied dramatics, Nunn posed several possible statements
- to Defense Department general counsel Jamie Gorelick. "I am
- a homosexual," he read from his paper. "Yes," answered Gorelick,
- that would trigger the presumption. "I am a lesbian," Nunn intoned.
- "Yes." "I am bisexual," said Nunn, who once fired two staff
- members for being gay, claiming they were security risks. "Yes."
- Finally, Nunn sprung one Gorelick hadn't expected. "I have a
- homosexual orientation," he said. Gorelick hesitated. Homosexual
- "orientation" was exactly what the new regulations tolerated
- in a military man or woman; admitting to it, however, was not.
- Yes, she agreed, even that statement would probably end its
- speaker's military career.
- </p>
- <p> After the hearing, Tom Stoddard, head of the gay-rights lobbying
- group Campaign for Military Service, was despondent but preparing
- for the next battle. The policy, he says, is "so screwy I'm
- content to let the courts take over."
- </p>
- <p> Stoddard, like most of Washington's Nunn-watchers, was assuming
- that the Senator was putting the finishing touches on a work
- that was his--and the Joint Chiefs'--in all but name. The
- hearings were seen as Nunn's attempt to trim down the thin veneer
- of political correctness the President had added to the policy
- in order to claim an "honorable compromise." As irritated as
- Nunn might be at Clinton's admittedly tortured distinctions
- between gay "orientation" (to be tolerated) and gay "conduct"
- (grounds for dismissal), the betting was that he would merely
- badger Defense Secretary Les Aspin and Gorelick into effectively
- admitting that it and other pesky wordings were indeed fairly
- meaningless, and eventually give the package his blessing.
- </p>
- <p> Nunn did, but he did it his way. Last Friday, two days after
- his hearings, he unveiled his proposal--as part of the defense
- appropriations bill, passed almost immediately by his Armed
- Services Committee and very likely to become law. Devoid of
- many of Clinton's ambiguous locutions, it continued the substantive
- war Nunn had waged in the hearings. While sparing the President's
- distinction between orientation and conduct, it eliminated even
- the faintest possibility that a soldier could admit gay orientation,
- in public or private. It dropped a clause promising "equal enforcement"
- among straights as well as gays of a military code of conduct
- that forbids acts of sodomy. And there was one major difference:
- although Nunn did not return to the pre-January policy of asking
- recruits their sexual orientation, his bill left that option
- open to some future Defense Secretary "as he considers appropriate."
- Said a Pentagon official who earlier described Nunn's hearings
- as "nibbling" away at the Administration version: "He just took
- another bite of the apple."
- </p>
- <p> And yet for all the chagrin Nunn's revision caused Clinton,
- who endorsed it later on Friday, it made little difference to
- the future hopes and strategies of Stoddard and his allies,
- which are firmly--if perhaps vainly--pinned to the court
- system.
- </p>
- <p> Any constitutional challenge to Nunn's policy will employ either
- the First Amendment's free-speech guarantees or the Fifth and
- 14th Amendments' support of equal protection under the law.
- The government is already prepared to defend its policy against
- Clinton's old allies in the gay civil rights movement. In a
- memorandum to the President early last week that defended the
- new regulations as constitutional, Janet Reno wrote that First
- Amendment challenges by gays would probably be rejected by the
- courts because "the policy is not directed at speech or expression
- itself," but, presumably, at the habits the speech suggested.
- </p>
- <p> Equal-protection strategies, which have been attempted before
- by gay activists, rest on the Constitution's distaste for the
- "disadvantaging" of an individual because of a group affiliation--an argument used successfully by blacks and women. Only proof
- of "a significant State interest" can outweigh that aversion.
- </p>
- <p> Unfortunately for their cause, gay soldiers fall into two of
- the categories most likely to be exempted from some constitutional
- guarantees: soldiers...and gays. Reno's memo opened with
- the sentence, "The Supreme Court has repeatedly stated that
- the courts must review decisions by...military commanders
- deferentially." In the name of national defense, the court has
- repeatedly yielded to the military on issues ranging from a
- prohibition of yarmulkes to the internment of Japanese Americans
- during World War II. To this, Kevin Cathcart, executive director
- of the gay-rights group Lambda Legal Defense and Education Fund,
- responds, "The military has the right to put some limitation
- on things like First Amendment rights. But the question is,
- Where is the balance between constitutional protections and
- military necessity?...The military is defining it in an
- inappropriate place."
- </p>
- <p> Gays have always been among those least likely to be served
- by the courts. In the case of Bowers v. Hardwick in 1986, a
- 5-to-4 Supreme Court majority upheld a Georgia statute under
- which two men were charged with sodomy for practicing consensual
- sex in the home of one of them. Consistent with what one lower-court
- judge called this "criminalization" of homosexual acts, the
- Justices denied gays any but the lowest standing as a potentially
- disadvantaged group under the 14th Amendment. Since then, activists
- have achieved limited success with maverick lower courts by
- citing similar protections in the Fifth Amendment. However,
- Laurence Tribe, a constitutional-law scholar at Harvard, deems
- a challenge to the new regulations through equal protection
- "an uphill fight."
- </p>
- <p> None of which will dissuade the Lambda Legal Defense and Education
- Fund and the A.C.L.U.'s Lesbian and Gay Rights Proj ect from
- initiating a class-action suit against the Department of Defense
- on First and Fifth Amendment grounds this week, in anticipation
- of the policy's October introduction. Some of the plaintiffs
- will allow themselves to be named. Others have elected to remain
- anonymous--hoping to challenge Sam Nunn's rebuttable presumption
- without affording their military employers an opportunity to
- clobber them with it.
- </p>
-
- </body>
- </article>
- </text>
-
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