Uniform Treatment for Gays

By WILLIAM A. HENRY III

Civil rights cases are among the thorniest faced by courts because they so often involve competing principles of social justice: protecting affirmative action for blacks vs. honoring seniority in the workplace; providing equal job access for women vs. giving civil service preference to veterans, who are mostly male. Striving for balance, while zigzagging through such moral thickets, often leads to apparently contradictory precedents. Having ruled for one side, the same court may find for the other the next time an issue comes up.

Last week a three-judge panel of the U.S. Ninth Circuit Court of Appeals in California dismayed the Reagan Administration by doing just that in the nettlesome debate of the military vs. homosexuals. In 1980 the court upheld the Navy's discharge of three people accused of homosexual conduct. In 1981 it ruled against a soldier who charged the Army with selective prosecution because the military antisodomy law was not being enforced in heterosexual cases. This time, however, Judges William Norris and William Canby sided with openly gay Sergeant Perry Watkins, 39. They said the Army had improperly refused to re-enlist him and marshaled constitutional reasoning that could, if upheld, enable gays to win pleas against all levels of government.

What made Watkins' case different, said the judges, was that he was charged only with being gay, not with a specific act of sodomy. Wrote Norris: "Any attempt to criminalize the status of an individual's sexual orientation would present grave constitutional problems." Watkins has never denied his orientation. The son of a career Army man, he admitted "homosexual tendencies" when he enlisted in 1967, at 19. Later he worked during off-duty hours, with his commander's permission, as a female impersonator. In his job rating, he was regularly praised for spit-shined professionalism. Although previous investigations had upheld Watkins' right to stay in the Army, regulations were tightened in 1981. Since Watkins' 1984 discharge three years short of retirement, he has had trouble finding work and has filed for bankruptcy.

Judges Norris and Canby refuted some commonly cited reasons for excluding gays, including hostility from other soldiers and a threat to morale. Wrote Norris: "Even granting special deference to the policy choices of the military, we must reject many of the Army's asserted justifications because they illegitimately cater to private biases." Judge Stephen Reinhardt dissented, arguing that he was bound by earlier cases, but denounced antigay laws and regulations and predicted some precedents would one day be overturned. "Were I free to apply my own view" of the Constitution, he wrote, "I too would conclude that the Army may not refuse to enlist homosexuals."

Gay activists hailed the words of the three judges, all appointed by President Carter. "This opinion is thrilling in its breadth," said Executive Director Jeff Levi of the National Gay and Lesbian Task Force. "It says that government conduct can't be based on reflexive dislike of a group of people." For gays the legal terrain of late has been mostly bleak. During the 1970s and early '80s, homosexuals sometimes won legislative repeal or judicial invalidation of sodomy laws, which remain in force in about half the states and the District of Columbia, and also persuaded some jurisdictions to enact bans on discrimination in housing and employment. But the gay-rights movement lost steam politically after June 1986, when the U.S. Supreme Court by a 5-to- 4 vote upheld a Georgia sodomy law, ruling that the constitutional right to privacy does not extend to homosexual sodomy. The new case offers an alternative argument: the judges focused on the concept of equal protection and held that homosexuals have been unjustly discriminated against as a class.

The Reagan Administration is expected to appeal the Watkins case either to the full Ninth Circuit or to the Supreme Court, where deference to military authority is relatively high and sympathy for gay causes is not. The court's newest and ideologically least-known member, Justice Anthony Kennedy, wrote the Ninth Circuit's 1980 opinion upholding the Navy's dismissal of homosexuals. Last week's action by his former colleagues suggests he may have to thrash through the issue again.

With reporting by Anne Constable/Washington and Dennis Wyss/San Francisco