Nunn’s Offer on Military Gays: Don’t Ask, Don’t Tell

WASHINGTON —  As the Senate Armed Services Committee opened hearings Monday on gays in the military, Sen. Sam Nunn (D-Ga.), its powerful chairman, offered a compromise on the issue: The military would stop asking about sexual orientation but would continue to require homosexuals to keep their sexuality secret.

Nunn’s offer appeared to be a bargaining stance on the highly contentious issue. It is far from any position that gay rights groups and the White House are likely to consider acceptable, but the suggestion quickly helped frame debate over what has been the most explosive issue of Bill Clinton’s young presidency.

Nunn said that making any change in the military’s current ban on gays is unwise. But he backed the widely circulated “don’t ask, don’t tell” compromise as one that would be more acceptable than other options.

“I see problems with every direction, from backwards to forward to standing still,” Nunn told reporters at the end of nearly seven hours of testimony by legal experts. “But I see less problem with that” option.

The compromise Nunn suggested is identical to policy adopted nearly two months ago as Clinton sought to quiet an erupting controversy over the issue, while gaining time for a thorough review of military treatment of homosexuals. Defense Secretary Les Aspin is to oversee the review and report to Clinton before July 15, when Clinton has pledged to propose a formal initiative clarifying the status of homosexuals in the armed services.

Monday’s hearings by Nunn’s committee were the first of a series that is expected to stretch over many months. The opening witnesses told lawmakers that in a legal showdown between the executive and legislative branches over the issue, Congress would have the upper hand.

“The courts are much more eager to defer to Congress” in controversial cases involving the military, said David A. Schleuter, a law professor at St. Mary’s University in San Antonio. “No one envies you in having to decide this very emotional issue.”

At the same time, legal experts said that if Congress is going to play a role in the debate, it must provide detailed guidance to the White House and military services on whether and how to integrate gays into military ranks. If it does not, warned one expert, the courts may abandon a long tradition of deference and step into the fray.

“One can tend to underestimate the tendency of the judiciary to see a problem and move to deal with it,” said Stephen A. Saltzburg, a law professor at George Washington University here.

In a day of sparring among lawmakers over the complexities of lifting the ban, the testimony of legal experts clearly established that, in the words of Sen. John McCain (R-Ariz.), “the devils are in the details” of Clinton’s proposal to lift the military’s ban on gays.

Several lawmakers grilled experts on existing legal precedents that would help answer such questions as whether the military would be legally obliged to provide separate housing and bathing facilities for homosexual and heterosexual soldiers. One opponent of lifting the ban, Sen. Richard C. Shelby (D-Ala.), asked whether disgruntled heterosexual soldiers would be able to sue the government for breach of contract if the ban is lifted.

Another, Sen. Dirk Kempthorne (R-Ida.), asked whether American GIs, exercising their rights to free speech and religion, could legally disobey an order to deploy with gay service members.

On virtually all such questions, Schleuter and Saltzburg told senators that legal precedents do not provide clear predictions of how such challenges would fare in court.

“We are definitely in uncharted waters,” Schleuter told lawmakers.

Civil rights activists and gay and lesbian groups criticized the hearings for their narrow focus on the technical challenges to lifting the ban.

Thomas B. Stoddard, a gay-rights leader coordinating the Campaign for Military Service, called the testimony “confused, incomplete and often beside the point.” Gregory King, spokesman for the Human Rights Campaign, called the hearings “a dull and deplorable display of ignorance and misinformation.”

Before Monday’s hearing, several civil rights leaders threw their support behind those who favor lifting the ban, and complained that Nunn’s hearings are so narrowly focused that they would not elicit comments about possible parallels between military opposition to lifting the ban and its opposition in the late-1940s to the racial integration of blacks in the military.

“This is a fundamental civil rights issue,” said Ralph Neas, executive director of the Leadership Conference on Civil Rights. “The ban is based on fear, prejudice and stereotypes. It is eerily, disturbingly reminiscent of the efforts to keep blacks” out of the ranks 45 years ago, Neas said.