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About Just out. (Portland, OR) 1983-2013 | View Entire Issue (April 15, 1994)
j u s t o u t ▼ a p rii 15. 1 M 4 ▼ 9 e W ftV My Resources supporting and empowering women M ilita ry ban loses a g a in in court A federal judge secures the right of six servicemembers to challenge the ban without reprisal ▼ by Bob Roehr .S. District Court Judge Eugene should they be discharged or inhibited from making Nickerson issued a preliminary injunc their case. He downplayed the government’s asser tion prohibiting the Pentagon from tak tion of disruption to “good order” and “unit cohe ing any action toward investigating or sion” in the military. “The preservation of rights of discharging six service members free speech and equal protection seems to this court mounting the first legal challenge to the “new” quite as much in the public interest as a claim that discriminatory military policy of “don’t ask, don’t the pursuit of this lawsuit by six plaintiffs consti tell” which took effect Feb. 28. tutes a serious threat to the military integrity of the The ruling came April 4, in Brooklyn, in the case armed forces,” Nickerson stated. of Able vs. USA. The plaintiffs in Able are two However, he made clear that the injunction only active-duty and four reserve members of various applied to the six plaintiffs. “Were this a class action branches of the military ser suit affecting all homosexu vices. They maintain the als in the services the bal policy is unconstitutional, ance of hardship analysis violating their rights of free might be different.” speech under the First This seemed to be a sig Amendment and of equal nal by Nickerson that he would not view favorably protection under the Fifth Amendment. any attempt to expand the case by adding plaintiffs or “The court holds that plaintiffs have established by expanding it to a class action suit. He was clearly serious questions going to aware of the broader injunc the m erits,” wrote tion issued by U.S. Circuit Nickerson in his highly de Judge Terry Hatter in the tailed 25-page injunction Keith Meinhold case. That order. “The court does not injunction was subsequently prejudge the merits. But the cut back on appeal by a evidence presented in other higher court, so that it ap courts casts doubt on the extent of any harm to be anticipated from the pres plied only to Meinhold and not all military person nel. ence of homosexuals in the military.” The parties will be back in court April 15 to The Act under challenge, passed by Congress argue on an earlier government motion to dismiss last fall, prohibits service for a person who engages, the case. In light of the injunction there is virtually attempts to engage, has a propensity to engage, or no chance of dismissal. Arguments on the merits of intends to engage, in homosexual acts. It “creates a the case will come at a later date. rebuttable presumption” that a person who has This is believed to be the first written injunction stated that he or she is homosexual will engage in that the long-sitting Carter appointee has issued. such prohibited action. Nickerson does not have a reputation as a judicial Nickerson was dubious in his evaluation of this argument by the government: “Neither the Act nor activist. “It indicates that the court has an understanding the Directives suggest how one who is bom with an innate tendency, a ‘propensity,’ to commit a homo of the way this policy actually punishes identity and speech in the guise of punishing behavior or con sexual act can prove that he or she does not have duct,” said Beatrice Dohm, legal director of the such a propensity. To invite someone to prove that Lambda Legal Defense and Education Fund, part of he or she does not have an inborn tendency seems the legal representation on this case. like a hollow offer.” He countered the government’s arguments that Pending cases the policy affects only conduct and not orientation: Other pending challenges to the military ban “The fact that the officials implementing the policy include: are directed not to ask service members ‘to reveal Joseph Steffan: A favorable panel decision from their sexual orientation ’ shows that the Act is really the D.C. Circuit Court was vacated and the appeal concerned not so much with ‘conduct’ but with the will be reheard en banc by the entire circuit. Oral attitudes of others when they learn of statements of arguments are scheduled for May 11. homosexual orientation.” Keith Meinhold: He is awaiting a decision from He directly negated the government’s assertion a three-member appeals panel in the 9th U.S. Circuit that the “new” policy represents a departure from Court in California. Oral arguments were heard in the old: “The allegedly new policy makes the same December, a decision could come at any time. distinction between homosexuals and heterosexu Tracy Thome: The Navy returned him to active als as did the prior policy.” duty under the old regulations but, according to his One important theme of Nickerson’s order was the importance of plaintiff s freedom of speech, to attorney, notified Thome that they will soon begin to process him for discharge under the new regula speak of homosexuality, in order to have access to tions. Litigation seems likely. the courts and pursue their constitutional challenge. Dirk Sellin: He and the Pentagon mutually agreed He wrote, “This court holds that there is a serious to drop the suit and injunction under the old regula question as to whether a regulation goes beyond tions, with the understanding that the Navy will what is reasonably necessary to protect any possible eventually move to discharge him under the new government interest when it inhibits six service regulations. They will be back in court. members from continuing to speak in court to make Justin Elzie: He continues to serve on active a constitutional challenge.” duty at Camp Lejeune under a court ordered injunc To Nickerson, the balance of hardship clearly tion under the old regulations. fell hardest upon damage the plaintiffs would suffer U A LESBIAN-OWNED BUSINESS O PEN 7 DAYS Mon-Sat, 10am-7pm Sun, 11am-5pm 4526 SE Hawthorne, Portland OR l (corner o f 45th, by the 7-11) (503) 236-0505 KEEP OREGON LEAN T he A ll A lumnium The M 60 0 N ow O nly *799 Reg $849. 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