Report: Mixed court views on gays in military

WASHINGTON — Conflicting Supreme Court rulings on homosexual rights make it difficult to predict whether any new laws protecting gays who want to serve openly in the military would be upheld, a congressional report concludes.

The legal analysis by the Congressional Research Service comes as Democratic lawmakers push legislation to repeal the 1993 “don’t ask, don’t tell” law that blocks gays’ military service if they disclose their sexual orientation.

“Unsettled legal questions remain as to whether a discharge based solely on a statement that a service member is gay transgresses constitutional limits,” concluded the CRS report, dated Sept. 2. A copy of it was obtained Wednesday by The Associated Press.

The report cites two conflicting Supreme Court cases, and noted that lower courts have struggled to reconcile them.

In 1986, the Supreme Court ruled in Bowers v. Hardwick that consensual homosexual sodomy is a not a fundamental right. Seventeen years later, the court overruled itself in Lawrence v. Texas, declaring in 2003 that a Texas law prohibiting sexual acts between gays and lesbians was unconstitutional.

The Lawrence ruling gave gay-rights supporters the legal grounds to challenge the Pentagon on “don’t ask, don’t tell” by arguing that the policy limits the privacy rights of gay members of the military. However, the CRS report concluded, there’s still a question whether the ruling provided a standard for judicial review that would give challengers the right to press in court.

The Supreme Court has repeatedly turned down requests to hear challenges to “don’t ask, don’t tell,” most recently in June.

President Barack Obama signaled during last year’s election campaign that he supported repealing the law. But to the chagrin of his gay-rights supporters, he has made no move to do so since taking office in January. The White House has said it will not stop the military from dismissing gays and lesbians who acknowledge their sexuality.

Last year, 634 members of the military were discharged for being gay, or .045 percent of the active-duty U.S. force, according to an Aug. 14 CRS report. The largest number of gays who were ousted under the “don’t ask, don’t tell” policy came in 2001, when 1,227 were discharged, or .089 of the force.

The House is considering legislation to repeal “don’t ask, don’t tell” and allow people who have been discharged under the policy to rejoin the military. The law is being pushed chiefly by Rep. Patrick Murphy, D-Pa., a former captain in the Army’s 82nd Airborne Division who served in Bosnia and Iraq.