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Military Policy on Gays Upheld

September 24, 1998

NEW YORK (AP) _ Six members of the military are in line for dismissal now that an appeals court has rejected their challenge of the Pentagon’s ``don’t ask, don’t tell″ policy, their lawyer said.

The 2nd U.S. Circuit Court of Appeals on Wednesday reversed a 1997 opinion by a federal judge who said the policy is discriminatory.

Now the military careers of all six _ two on active duty and four reservists _ could end ``just because they came forward and said, `I’m gay and I don’t think the policy treats us fairly,‴ said lawyer Beatrice Dohrn.

The plaintiffs _ Navy Petty Officer Robert Heigl, Seaman Werner Zehr and four Army reservists _ sued shortly after the policy was enacted in 1994.

A Defense Department spokesman, Lt. Col. Tom Begines, said the Pentagon had no immediate comment on the ruling or the fate of the plaintiffs. The Justice Department also had no comment.

The Clinton administration adopted the ``don’t ask, don’t tell, don’t pursue″ policy as a compromise between the views of gay-rights advocates and those opposed to homosexuals in the military.

The policy states gays can serve as long as they keep their sexual orientation to themselves and do not engage in homosexual acts. Otherwise, they can be honorably discharged. In addition, commanders may not ask a service member his or her sexual orientation.

The military discharged 3,229 people for homosexual conduct between 1994 and 1997, according to a recent Defense Department report.

U.S. District Court Judge Eugene Nickerson said last year that the policy infringes on the due process clause of the Fifth Amendment by subjecting only gay and lesbian troops to a separate, discriminatory set of regulations.

But the appeals court said the policy is constitutional and Congress was right to heed military experts who said that ``those who engage in homosexual acts would compromise the effectiveness of the military.″

``We will not substitute our judgment for that of Congress,″ the panel said.

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