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Army's Homosexual Ban Upset by Appellate Court : Gays Praise Decision in Seattle Case

February 10, 1988|Times Wire Services

SAN FRANCISCO — The Army's ban on homosexuals was ruled unconstitutional today by a federal appeals court, which said concerns cited by the military about morale and discipline "illegitimately cater to private biases."

In a case from Seattle, the U.S. 9th Circuit Court of Appeals ruled 2 to 1 that Army rules banning soldiers with a "homosexual orientation" violate constitutional guarantees of equal protection of the laws.

The ruling, first of its kind by a federal appeals court, comes less than two years after a Supreme Court decision upholding a Georgia anti-sodomy law that allowed criminal prosecution for private homosexual acts, and it was immediately praised by gay leaders.

"I think it's about time that the courts recognized that gay people have been denied their rights," said Leonard Graff, legal director for National Gay Rights Advocates in San Francisco.

"What is especially pleasing is that the court is finally . . . scrutinizing the rational for keeping gays out. It's exactly the same rationale as they used for keeping blacks out," he said.

Applies to All Branches

Although the case decided today involved only the Army, the ruling applies to all branches of the military because the regulations were issued by the Defense Department, according to James Lobsenz, a Seattle attorney hired by the American Civil Liberties Union to represent ex-Sgt. Perry J. Watkins of Tacoma, who was discharged in 1981.

"We're extremely pleased by Judge Norris' decision and we think that finally we have a court that recognizes this type of discrimination is incompatible with the fundamental rights guaranteed by the Constitution," Lobsenz said.

Lobsenz said he expects the Army will seek a rehearing by a full 11-judge panel of the appeal court and, failing there, move to the U.S. Supreme Court.

Other appellate rulings, including one by Judge Anthony M. Kennedy of the 9th Circuit before his recent appointment to the Supreme Court, have allowed the armed forces to discharge people based on homosexual acts.

But the appeals court said today that the Army's 1981 regulations go further by targeting a soldier's sexual orientation, regardless of conduct. Judge William A. Norris noted that if a male homosexual soldier and a heterosexual soldier engaged in a drunken sexual act, only the homosexual would be discharged under the Army rules.

A ruling that specific sexual conduct can be forbidden by criminal laws cannot be translated into "a state license to pass 'homosexual laws'--laws imposing special restrictions on gays because they are gay," Norris said.

Acknowledged Homosexuality

The court ruled in favor of Watkins, who was ordered discharged by the Army in 1981 after 14 years of service. He had repeatedly acknowledged his homosexuality, starting with a statement on a pre-induction medical form in 1967.

Watkins was not found to have committed any specific sexual acts and the Army never contended that his job performance was impaired, the court said. A performance review after his discharge had been blocked by a lower court gave him a perfect job rating and called his performance "outstanding in every regard."

In the court's ruling, Norris said homosexuals, as a relatively powerless minority that has been the target of discrimination, were entitled to the same protection as racial minorities against unequal application of the laws.

"Laws that limit the acceptable focus of one's sexual desires to members of the opposite sex, like laws that limit one's choice of spouse (or sexual partner) to members of the same race, cannot withstand constitutional scrutiny absent a compelling governmental justification," he said.

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