ROANOKE TIMES
Copyright (c) 1995, Roanoke Times
DATE: Wednesday, December 6, 1995 TAG: 9512060059
SECTION: VIRGINIA PAGE: C-3 EDITION: METRO
DATELINE: RICHMOND
SOURCE: Associated Press
The Clinton administration's ``don't ask, don't tell'' policy on gays in the military came under sharp scrutiny Tuesday in a hearing before a federal appeals court.
All 13 full-time judges of the 4th U.S. Circuit Court of Appeals heard former Lt. Paul Thomasson's appeal of his dismissal from the Navy, the first challenge of the policy to reach a federal appeals court. Nearly all the judges jumped in with questions during the 11/2-hour hearing.
Some judges questioned whether Thomasson's statement to his commander that ``I am gay'' should have been sufficient to end his career. Others suggested the courts should not interfere with military policy.
``What harm has Mr. Thomasson done to the military?'' Judge K.K. Hall asked Deputy Solicitor General Ed Kneedler, who defended the policy.
Kneedler said the military has the right to discharge an openly homosexual member to protect unit cohesion.
``It is not prejudice. It is prudence,'' he said.
Kneedler said Thomasson's statement could be used as evidence that he was likely to engage in homosexual conduct, which is grounds for dismissal from the military. Thomasson offered no evidence that he would refrain from homosexual acts, Kneedler said.
``One's sexuality is a deeply ingrained and powerful force in one's life,'' he said.
Thomasson's lawyer, Allan B. Moore, argued that the policy violates the constitutional right to free speech.
``Lieutenant Thomasson had the courage and the honesty to say who he is,'' Moore said. ``This policy is based on the irrational concerns of some heterosexuals.''
But Judge Paul Niemeyer suggested it's rational to assume Thomasson would engage in homosexual conduct. ``By saying, `I am gay,' you open that door,'' he said.
A few judges questioned whether a service member would be dismissed for making other statements that could be linked to illegal acts. For example, Judge Diana Motz asked whether someone who described himself as an old-fashioned Mormon would be assumed to engage in bigamy.
Other judges seemed reluctant to interfere with the authority of Congress and the president to run the military. ``Isn't it rash for us to jump in and say discharges reached under this statute are unconstitutional?'' asked Judge J. Harvie Wilkinson III.
The appeals court usually rules a few months after hearing arguments. The case then is likely to go to the U.S. Supreme Court.
LENGTH: Medium: 54 linesby CNB