WASHINGTON A federal judge in Brooklyn, N.Y., expressed doubtMonday that the military would be harmed by having homosexuals in itsranks, and temporarily stopped the Clinton administration fromdischarging six gays.
Judge Eugene H. Nickerson became the first federal judge to acton the administration's policy against gays, which took effect Feb.28, and on the 1993 law that Congress passed in support.
This marked the sixth time in the last year that a federal courthas stopped the military from discharging service members becausethey are gay. The five previous rulings involved restrictions ongays that have been replaced by the administration.
Administration lawyers have argued that the new policy is moretolerant of gays' remaining in the service, so long as they do notengage in homosexual acts and do not discuss their homosexuality.
The policy, called "don't ask, don't tell, don't pursue," isaimed at homosexual behavior, not at the abstract idea thatindividuals may think of themselves as gay or lesbian, those lawyershave said. Homosexuals, they add, may remain in uniform if theyprove - when challenged - that they are not homosexual.
But Nickerson noted in a 25-page opinion that the policyrequires the discharge of those found to have merely "a propensity"to engage in homosexual conduct, and does not give such individuals arealistic option to counter that finding.
"To invite someone to prove that he or she does not have aninborn tendency seems like a hollow offer," the judge wrote. "Themessage to those with such an orientation appears to be not to avoidprivate homosexual acts but to stay in the closet and to hide theirorientation."
Nickerson did not issue a final ruling. His ban on disciplinaryaction by the Pentagon against gays is limited to protection for thesix people who filed the constitutional challenge and stays in effectuntil a final ruling.
The Justice Department had no comment on whether it would ask ahigher court to lift the limited ban imposed by Nickerson.
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