As the Pentagon puts the finishing touches on regulations to carry out President Clinton's policy on homosexuals in the military, the transition from the former policy has caused divisions over legal strategies within the administration and created new problems for gay troops.
The new rules and accompanying guidelines, which the Pentagon could issue in the next several days, will spell out in precise terms how commanders should enforce Clinton's new policy of "don't ask, don't tell, don't pursue." Lawyers writing the regulations have kept them under close wraps.But even before the rules are issued, the Defense Department and the Justice Department are divided over how to handle a federal appeals court decision that found the former rules unconstitutional. Because the new policy derives important elements from its predecessor, military lawyers fear that a successful challenge to the former plan could imperil Clinton's policy. They argue that the government should appeal the ruling, although some Justice Department lawyers believe they should let it stand.
When the appeals court ruled in November, it said it was not considering the constitutionality of the new regulations, but it said the equal protection guarantee of the Fifth Amendment did not permit the government to remove members of the military merely because they said they were homosexuals.
Indeed, gay rights groups say that is what is happening now in the interim period between the old and new rules. They maintain that military commanders, who do not yet have the revised regulations, are nonetheless using the new policy's broader definition of prohibited conduct to punish troops who acknowledge they are homosexual more harshly than they did under the former policy.
Under the administration's policy, which Clinton signed into law last month, military personnel can no longer be asked about their sexual orientation but can be dismissed for acknowledging their homosexuality. But the new policy links such a declaration with conduct by strengthening the presumption that troops who say they are homosexual engage in or are likely to engage in homosexual acts, which are violations of the military's criminal code.
"The new policy has broadened the definition of conduct, and, therefore, is ensnaring many more people in more dangerous ways," said Michelle M. Benecke, a former Army captain who is a director of the Servicemembers Legal Defense Network, a new legal advocacy organization in Washington.