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LAVENDER LAW IV
The Fourth Biennial Conference of the
National Lesbian & Gay
Law Association
October 21-23,1994
Portland, Oregon
OUR FAMILY ABROAD
European vacations for gay travelers
(Escorted tours or
independent city stays)
Please call for domestic and
international air fares.
(
503 ) 223-1062
Clint Schrader
M ember PARA & IGTA
121 SW Morrison, Suite 270
Portland, OR 97204
Featurins sessions on:
A ID S Law; A nti-G ay In itiatives,
Censorship Threats & The Gay
Fam ily Under Siege; Fam ily Law
and much more
For registration information:
WRITE: NLGLA,PO Box 77130,
National Capital Station,
Washington, DC 20013-7130
CALL: NLGLA at 202/389-0161 or
contact your local Lesbian & Gay
Law Association
The Crimson Phoenix
A Sexuality Bookstore for Lovers
Featurins Portland’s largest selection of condoms.
We have lotions, potions, herbs, cards and gifts.
We sell woman-friendly products.
Over 300 book tides to choose from.
Astrologer and psychic available by appointment.
Watch for dass schedule.
Gift certificate available.
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national news
M einhold stays
in the N avy
Federal judges continue to chip away at ban
on gay men and lesbians in the military
▼
by Bob Roehr
he Navy cannot kick out Keith
Meinhold simply because he says he is
gay, ruled the 9th Circuit Court of
Appeals on Aug. 31.
The decision hewed to a line of
judicial restraint by avoiding broad constitutional
questions to resolve the case on narrower grounds.
It crafted fine lines between the status of being gay
or lesbian, the speech of saying one is gay or
lesbian, and proof of actual sexual conduct out­
lawed by the Uniform Code of Military Justice.
“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,” wrote Pamela
Ann Rymer for the three-member panel of conser­
vative judges.
Thus the court affirmed “homosexual status,”
while still deferring to the military on the issue of
“homosexual conduct” being detrimental to good
order and discipline. Furthermore, it began to
attack the “presumption” that saying one is lesbian
or gay carries with it the intent to act upon that
orientation, and hence vio­
late the code. It began to
outline the type of language
that would cross the bound­
ary between the two.
The decision marks the
eighth consecutive time in
the last 20 months that fed­
eral judges have chipped
away at the policy banning
gay men and lesbians in the
military.
“The decision was a little
bit more than we filed the
suit expecting,” said
Meinhold’s attorney, John
Maguire. “All we were
looking for was to get ori­
entation carved out as a safe
place where the government
can’t tell you what you can
do and can’t do because of
your orientation. Now you
can also declare your orien­
tation.”
He views the narrow­
ness of the decision as posi­
tive, calling it “insurance
against the Supreme Court Keith Meinhold
overturning it.” He sees the 9th Circuit Court as
unlikely to hear further appeals and even questions
the wisdom of the government pursuing such ac­
tion.
Maguire is encouraged by the fact that the panel
did not find the regulation unconstitutional, be­
cause, he said, when that happens, “The govern­
ment goes back to the drawing board. What she
[Rymer] has basically done is redraw it for them.”
“What she is saying is that for it to be constitu­
tional, you can’t take action against people for
either being gay or acknowledging that they are
gay”
New York law professor Art Leonard said, “It
is a narrow win (because it only applies to
Meinhold]. But it contains the seeds of a powerful
refutation of the philosophy behind ‘don’t ask,
don’t tell.’ ”
“The fact that he said he was gay doesn’t allow
them to make all of these assumptions about his
behavior,” noted Beatrice Dohm, legal director
with the Lambda Legal Defense and Education
Fund. “In itself that is quite a victory.”
She is particularly pleased with a section of the
decision that reads: “Construing the regulation to
apply to the ‘classification of being homosexual’
clearly implicates equal protection.... At least a
serious question is raised whether it can ever be
rational to presume that one class of persons will
violate regulations whereas another class will not.”
Dohm sees this point being pressed further in
the Able case being pursued by Lambda as the lead
challenge to the “new” regulations of “don’t ask,
don’t tell” promulgated this year. That case is now
in preliminary motions and seems likely headed
for trial in the spring.
“If the sexual acts that we are talking about are
detrimental to the military mission, then why are
they differently detrimental if you think, or know,
or suspect that a person is engaging in them with a
person of the same gender versus the opposite
gender? If you look behind that, then what you get
is it’s all about gay identity, it’s not about sex,”
Dohm said.
Opponents had much
the same read on the deci­
sion as did their gay and
lesbian counterparts. “It
casts a shadow over the
military’s new homosexual
law,” said retired Col. Bob
Maginnis of the Family
Research Council.
He went on to accuse
government attorneys of
mishandling the case, call­
ing it “another attempt by
the Clinton administration
to overstep its boundaries
in regulating the military .”
Meanwhile, Zoe Dun­
ning heads into adminis­
trative discharge hearings
with the Navy on Sept. 26.
She is charged with being a
lesbian. She thinks the
Meinhold ruling “helps our
chances, both in the
intramilitary proceedings
and eventual federal court
challenge.”
Dunning said, ‘‘The
government is sending out
a special ‘don’t ask, don’t tell’ SWAT team to
prosecute my case. I’m expecting them to do as
much mud-slinging as they can. Fortunately, my
record is as clean as they come, but that doesn’t
make it any less scary a proposition.”
Dixon O sburn, attorney with the
Servicemembers Legal Defense Network, said of
the Meinhold case, “One thing that service mem­
bers who are gay need to understand about this
decision is, it really will not affect their daily lives,
yet.”
He warned that the law works very slowly.
“They [service members] are still going to be
kicked out if they make a statement today.” He
urged caution.
Servicemembers Legal Defense Network,
(202) 328-3244, is the principal national
organization assisting those in the military
charged with being lesbian or gay.