See You in Court

By DAVID VAN BIEMA

Last week in the cavernous hearing room of the Senate Armed Services Committee, Sam Nunn was again belaboring the proposed regulation on homosexuals in the military. The Senator from Georgia wanted to nail down exactly what sorts of statements by a soldier would trigger a "rebuttable presumption" that he or she was engaged in gay conduct -- a legal finding that, despite its name, experts say is almost impossible to rebut.

With studied dramatics, Nunn posed several possible statements to Defense Department general counsel Jamie Gorelick. "I am a homosexual," he read from his paper. "Yes," answered Gorelick, that would trigger the presumption. "I am a lesbian," Nunn intoned. "Yes." "I am bisexual," said Nunn, who once fired two staff members for being gay, claiming they were security risks. "Yes." Finally, Nunn sprung one Gorelick hadn't expected. "I have a homosexual orientation," he said. Gorelick hesitated. Homosexual "orientation" was exactly what the new regulations tolerated in a military man or woman; admitting to it, however, was not. Yes, she agreed, even that statement would probably end its speaker's military career.

After the hearing, Tom Stoddard, head of the gay-rights lobbying group Campaign for Military Service, was despondent but preparing for the next battle. The policy, he says, is "so screwy I'm content to let the courts take over."

Stoddard, like most of Washington's Nunn-watchers, was assuming that the Senator was putting the finishing touches on a work that was his -- and the Joint Chiefs' -- in all but name. The hearings were seen as Nunn's attempt to trim down the thin veneer of political correctness the President had added to the policy in order to claim an "honorable compromise." As irritated as Nunn might be at Clinton's admittedly tortured distinctions between gay "orientation" (to be tolerated) and gay "conduct" (grounds for dismissal), the betting was that he would merely badger Defense Secretary Les Aspin and Gorelick into effectively admitting that it and other pesky wordings were indeed fairly meaningless, and eventually give the package his blessing.

Nunn did, but he did it his way. Last Friday, two days after his hearings, he unveiled his proposal -- as part of the defense appropriations bill, passed almost immediately by his Armed Services Committee and very likely to become law. Devoid of many of Clinton's ambiguous locutions, it continued the substantive war Nunn had waged in the hearings. While sparing the President's distinction between orientation and conduct, it eliminated even the faintest possibility that a soldier could admit gay orientation, in public or private. It dropped a clause promising "equal enforcement" among straights as well as gays of a military code of conduct that forbids acts of sodomy. And there was one major difference: although Nunn did not return to the pre-January policy of asking recruits their sexual orientation, his bill left that option open to some future Defense Secretary "as he considers appropriate." Said a Pentagon official who earlier described Nunn's hearings as "nibbling" away at the Administration version: "He just took another bite of the apple."

And yet for all the chagrin Nunn's revision caused Clinton, who endorsed it later on Friday, it made little difference to the future hopes and strategies of Stoddard and his allies, which are firmly -- if perhaps vainly -- pinned to the court system.

Any constitutional challenge to Nunn's policy will employ either the First Amendment's free-speech guarantees or the Fifth and 14th Amendments' support of equal protection under the law. The government is already prepared to defend its policy against Clinton's old allies in the gay civil rights movement. In a memorandum to the President early last week that defended the new regulations as constitutional, Janet Reno wrote that First Amendment challenges by gays would probably be rejected by the courts because "the policy is not directed at speech or expression itself," but, presumably, at the habits the speech suggested.

Equal-protection strategies, which have been attempted before by gay activists, rest on the Constitution's distaste for the "disadvantaging" of an individual because of a group affiliation -- an argument used successfully by blacks and women. Only proof of "a significant State interest" can outweigh that aversion.

Unfortunately for their cause, gay soldiers fall into two of the categories most likely to be exempted from some constitutional guarantees: soldiers . . . and gays. Reno's memo opened with the sentence, "The Supreme Court has repeatedly stated that the courts must review decisions by . . . military commanders deferentially." In the name of national defense, the court has repeatedly yielded to the military on issues ranging from a prohibition of yarmulkes to the internment of Japanese Americans during World War II. To this, Kevin Cathcart, executive director of the gay-rights group Lambda Legal Defense and Education Fund, responds, "The military has the right to put some limitation on things like First Amendment rights. But the question is, Where is the balance between constitutional protections and military necessity? . . . The military is defining it in an inappropriate place."

Gays have always been among those least likely to be served by the courts. In the case of Bowers v. Hardwick in 1986, a 5-to-4 Supreme Court majority upheld a Georgia statute under which two men were charged with sodomy for practicing consensual sex in the home of one of them. Consistent with what one lower-court judge called this "criminalization" of homosexual acts, the Justices denied gays any but the lowest standing as a potentially disadvantaged group under the 14th Amendment. Since then, activists have achieved limited success with maverick lower courts by citing similar protections in the Fifth Amendment. However, Laurence Tribe, a constitutional- law scholar at Harvard, deems a challenge to the new regulations through equal protection "an uphill fight."

None of which will dissuade the Lambda Legal Defense and Education Fund and the A.C.L.U.'s Lesbian and Gay Rights Project from initiating a class-action suit against the Department of Defense on First and Fifth Amendment grounds this week, in anticipation of the policy's October introduction. Some of the plaintiffs will allow themselves to be named. Others have elected to remain anonymous -- hoping to challenge Sam Nunn's rebuttable presumption without affording their military employers an opportunity to clobber them with it.

With reporting by Julie Johnson and Bruce van Voorst/Washington