Military Ins and Outs

By DAVID VAN BIEMA

Some would suggest it was a silly question to bother her with, at this stage in a brilliant career; a little like pestering a star athlete who has led his team to a brace of championships about his religious preference. National Guard Colonel Margarethe Cammermeyer had earned a Bronze Star for supervising a hospital during the Vietnam War; in 1985 the Veterans Administration named her Nurse of the Year over 34,000 other candidates; and most recently, she had served as chief nurse of the Washington National Guard. But somebody's curiosity got the better of him: during a security clearance in 1989 for her admission to the Army War College, Cammermeyer was quizzed about her sexual preference. And so she answered: she is gay.

Her subsequent discharge from the armed forces in 1992 attracted headlines around the country and eventually helped persuade the Clinton Administration to change its policy on gays in the military last year. At the time, her superiors fought her ouster; on the day of her departure, her commanding officer wept. And last week Federal District Judge Thomas S. Zilly ordered her reinstated. The judge, a Reagan appointee, explained that the old military policy was "based on heterosexual members' fear and dislike of homosexuals." Given the Constitution's equal-protection clause, Zilly continued, such feelings "are . . . impermissible bases for governmental policies." Said a jubilant Cammermeyer: "This is what we've been waiting for. We won!"

The battle, if not the war. Zilly's decision was the seventh lower-court ruling against the old military rules on homosexuality; and, like several of the other decisions, it has implications for the new regulations negotiated by Bill Clinton and Senator Sam Nunn last summer. The events that led to Cammermeyer's discharge might not have occurred under the new "don't ask, don't tell" policy, since she might never have been asked. But her answer would break the new as well as the old regulations. The current policy holds that although homosexual "status" is theoretically permissible, admitting to it signals an impermissible intent to engage in homosexual "conduct."

Judge Zilly's ruling heartened gay-rights activists. "Change in this policy is inevitable," said Joseph Steffan, whose 1987 expulsion from the U.S. Naval Academy on similar grounds was overturned by an appeals court late last year. "The only question is when, and decisions like this lead to the conclusion that it may be sooner rather than later." The military itself seems torn about whether to appeal the Cammermeyer verdict. "We have to press ahead," said one official. "If we let this decision stand . . . we'd be barred from enforcing our own policy." Yet Pentagon spokesman Dennis Boxx was more cautious. "We disagree with the judge's conclusions in the Cammermeyer case," he said, but "we need to look very hard -- along with the Justice Department -- to see how far we want to pursue that disagreement."

The hidden reference in that statement was doubtless to the Supreme Court, which is expected to encounter several appeals-court rulings on both the old and new rules on military homosexuality in the next few years. Which case it chooses to hear and how it rules may well be the final word on the topic for some time. Until then, admits Tanya Domi, a retired Army captain who is now legislative director for the National Gay and Lesbian Task force, "we're stuck. You have to continue to hide and lie."

With reporting by Ellis E. Conklin/Seattle and Mark Thompson/Washington