The Canberra Times

By Harry Melkonian

At long last, the Congress of the United States has voted to end the ''Don't Ask, Don't Tell'' policy that has resulted in the discharge of so many patriotic Americans serving in their nation's defence forces. Instigated by Bill Clinton as an ill-fated attempt to balance his campaign promise to end the ban on gays and lesbians in the military and the angry response from many legislators and military officials to a court order ending discrimination, this policy has been nothing less than a blight on American principles of equal protection and non-discrimination.

Immediately after he took his presidential oath of office in January 1993, Clinton was confronted with a Federal Court decree that ended the discrimination against gays and lesbians. I imagine that this was not the way that he would have liked to begin his administration as he was likely surprised by the vehemence of public reaction to this court order. The order emanated from the US District Court in Los Angeles as the result of a lawsuit brought by a young sailor, Keith Meinhold, against the Department of Defence. After 11 distinguished years of service in the US Navy, Meinhold had been promptly and unceremoniously discharged after he declared his sexuality during a television broadcast in San Francisco. With the assistance of some fine young lawyers, I agreed to represent Meinhold on a pro bono basis.

At the time of his discharge in 1992, the policy of the US military was simple. Gays and lesbians were deemed unfit for military service and were discharged without any evidence of improper behaviour but merely on the basis of their sexual orientation. Naively, I had assumed that gays were discharged only in cases of inappropriate sexual behaviour. I was appalled to learn that they were discharged on the basis of status alone. We promptly filed suit in the US District Court and alleged that the US Navy was acting in violation of the US constitution.

The response of the defence establishment was mind-boggling. They actually raised arguments to a federal judge such as that the military discharged gays based on their sexual status rather than based on inappropriate conduct to spare the soldiers and sailors embarrassment, that if gays were allowed to serve in combat units then US soldiers might fire on each other, or that gays and lesbians must be excluded because they were subject to blackmail and presented security risks. When we pointed out that they were subject to blackmail only because it was unlawful to be gay or lesbian, our arguments were met with silence or responses that the military lawyers are patriots and love their country, implying that those of us who actually believed in the words ''all men are created equal'' were something less.

The federal judge, Terry Hatter, was less than impressed with the Defence Department arguments. When the navy lawyers argued that soldiers and sailors would no longer fight if there were gays and lesbians in their ranks, we pointed out that Israel had no such ban. The judge asked the navy lawyers whether the Israeli defence forces had been known to rather effectively engage in combat.

When Australian Prime Minister Paul Keating terminated the ban on gays and lesbians in the Australian forces, we presented evidence of this to the court. The military response, quite offensive I might add, was that the court would be better advised to look to Britain rather than a colony.

After a number of increasingly heated court arguments, the federal judge ordered Meinhold reinstated and further ordered that the military forces of the US were enjoined from discriminating against people based on their sexual orientation. After the ruling, Meinhold appeared at the gates of his base and was still denied entry. We returned to court raising the navy's defiance of the court as a thinly disguised challenge to the supremacy of civilian authority over the military. The navy responded with a letter of apology to the court and, on November 10, the judge reordered the reinstatement to take place immediately. Perhaps as a crowning absurdity, the navy responded that it could not comply because the Veterans Day holiday had begun and the navy was not really open for business until the following week! A more convenient time was agreed upon and Meinhold returned to active duty with all-around support from his fellow sailors.

Of course, the Defence Department promptly appealed from the court's order and after prolonged scuffling, the US Court of Appeals affirmed the reinstatement of Meinhold but set aside the court's broader order against discrimination on the grounds that it was unnecessary to solve Meinhold's situation and that the political process had already resolved the issue. In other words, the court ultimately ducked the issue. Clinton's well-intentioned but deeply flawed political compromise did not solve anything. It turned out to be a victory for bigotry and prejudice. Military discharges of gays and lesbians did not abate and many fine Americans who had volunteered to serve their country were summarily discharged.

Finally, and at long last, public opinion changed and upon urging from President Barack Obama, Congress acted. Supported by most of the Democrats and some of the Republicans, Obama was able to obtain a repeal of this mean-spirited ''Don't Ask, Don't Tell'' policy. There is still a way to go and it remains to be seen how much time the implementation process will take. But, for thousands of men and women who loyally serve in their nation's armed forces, this has been a very welcome, though late, Christmas present.

Dr Harry Melkonian is a senior lecturer at the United States Studies Centre at the University of Sydney and an American constitutional lawyer.