.#200 San Francisco Examiner August 31, 1993 page 1 Gay sailor ordered reinstated to Navy U.S. judge rules military ban illegal by Robert D. Davila McClatchy News Service SACRAMENTO - In a sweeping attack on Pentagon efforts to ban gays and lesbians from the military, a federal judge in Sacramento has ruled that the controversial policy is unconstitutional because it is based on illegal prejudice. U.S. District Judge Milton Schwartz also ordered the Navy to reinstate Mel Dahl, an ex-sailor who sued after he was discharged in 1982 because he is gay. "No governmental entity, even the military, can enact and enforce prejudicial policies without doing violence" to constitutional guarantees of equal protection of the laws, Schwartz said Monday in a 43-page opinion. Dahl, who argued his own case in federal court in 1989 while a first-year student at Sacramento's McGeorge Law School, said that he was "very pleased that this 11-year battle for me may now be resolved." Dahl, now a practicing attorney in Boston, said he might be willing to re-enter the Navy as a lawyer, if the government does not appeal the case. Assistant U.S. Attorney Michael Hirst of Sacramento, who argued on behalf of the Navy, said he could not comment because he had not read the judge's opinion. The ruling targeted Defense Department rules against gays and lesbians that were in effect when Dahl served during the early 1980s - not the policy of "don't ask, don't tell" announced by President Clinton this summer. But critics have argued that Clinton's new policy actually differs little from the previous rules. Last month, the administration launched a defense of both sets of provisions in two federal appellate courts. Dahl, who joined the Navy in October 1980, acknowledged during an interview with Navy officials in 1981 that he was gay, but denied engaging in any homosexual conduct. He was honorably discharged under the military ban on gays and lesbians in January 1982. Schwartz, a senior jurist on the Sacramento bench, is only the second federal judge nationwide to rule on the constitutionality of rules barring gays and lesbians from serving in the armed forces. Last January, U.S. District Judge Terry Hatter Jr. of Los Angeles struck down the Pentagon's 50-year-old exclusionary policy and forbade the Defense Department from discharging or denying enlistment to gays and lesbians. Hatter also ordered the reinstatement of Moffett Field sonar operator Keith Meinhold, who was discharged from the Navy after announcing on national television that he is gay. Meinhold's attorney, Christopher Rudd, said Monday the federal government is appealing several court decision ordering the reinstatement of specific gays and lesbians who were discharged from the military. The cases include the decision in Meinhold's case, which the Clinton administration appealed in July in the 9th U.S. Circuit Court of Appeals in San Francisco. But the second blow by a lower-court judge on the constitutionality of the policy itself "is an indicator of the way the tide is turning," Rudd said. In a broad declaration Monday, Schwartz ruled that military regulations requiring discharge on the basis of sexual orientation violate the Fifth Amendment guarantee of equal protection. In Dahl's case specifically, Schwartz ordered the Navy to reinstate the former sailor and to expunge from his records all statements by Dahl or others regarding his sexual orientation. The judge also ordered the Navy not to take any adverse action against Dahl simply because of his sexual orientation and not to seek his discharge under "the purported authority" of any Pentagon rules barring gays and lesbians in uniform. Schwartz granted Dahl's motion for summary judgment after a methodical review of the appropriate law and an extensive analysis of the Navy's arguments supporting the ban on gays and lesbians in the military. In a key analysis, the judge faulted the Pentagon's contention that its goal of preventing impermissible sexual conduct in the ranks is achieved by rules that ferret out men and women who declare their homosexuality but do not reach gays and lesbians who "don't tell." "The distinction is not only facially illogical, but also unsupported by any evidence," Schwartz said. - - * Truth v2.03 * I exist, therefore I get junk mail. -- Craig Canada - via FidoNet node 1:125/1 UUCP: ...!uunet!kumr!shelter!28!Craig.Canada INTERNET: Craig.Canada@f28.n125.z1.FIDONET.ORG