Monday, July 2, 2001
Court of Appeal Rules:
‘Don’t Ask, Don’t Tell’ Policy Can Apply to State National Guard
By a MetNews Staff Writer
A trial court ruling that struck down application of the federal “Don’t Ask, Don’t Tell” policy on gays in the military to the California National Guard was too broad and improperly encroached on the federal prerogative, the First District Court of Appeal ruled Friday.
In a ruling dealing with the complex interplay of the state and federal national guards, and with the differing interpretations of the state and federal guarantees of free speech rights and equal protection, the court held that a state National Guard member could not be discharged for saying publicly that he is gay—but could be excluded from any of the many positions on the guard that require “federal recognition.”
“Unless the trial court’s judgment is clarified, defendants could be put in the untenable position of having to allow individuals to obtain state active duty positions for which federal recognition is required even though they may have lost or be ineligible for federal recognition because of the [Don’t Ask, Don’t Tell] policy,” Presiding Judge William R. McGuiness wrote for Div. Three.
“Don’t Ask, Don’t Tell” was a policy introduced by President Bill Clinton during his first weeks in office in 1993 as an effort to address controversy over gays serving in the military. Under the earlier policy, military officials asked recruits and others in service whether they were gay, then discharged those who answered yes and those who answered no but were found to have lied. The new policy barred officials from inquiring or probing the sexual orientation of people in military service, but it still provided for the discharge of people whose public statements or actions affirmed that they were gay.
Although Clinton intended the policy as a step forward in defending the rights of gays to serve in the military, gays heavily criticized him for maintaining a system in which soldiers, sailors and others had to cover up their sexual orientation to keep their jobs.
Shortly after the policy was announced, California National Guard First Lt. Andrew Holmes claimed, he was “pressured” by his superiors to issue a statement that he was not gay.
Instead, he presented a memo to his commanding officer stating that as “a matter of conscience, honesty and pride, I am compelled to inform you that I am gay.” The commanding officer then moved to have Holmes’ federal recognition as a U.S. Army national guardsman withdrawn.
His federal status revoked, Holmes reverted to his former National Guard reserve post. But he said he never again was paid by or heard from the California National Guard and was never told that he was eligible for any form of state active duty employment not requiring federal recognition.
He sued in federal court and won, but the Ninth U.S. Circuit Court of Appeals held that Holmes continued to hold a position in the state National Guard that does not require federal recognition and is not subject to being called into federal service.
He filed a class action lawsuit in San Francisco Superior Court, and Judge David A. Garcia ruled that he was effectively fired from the state National Guard because of the federal policy. “Don’t Ask, Don’t Tell” requires that his federal recognition be revoked for cause, the judge ruled, and that under state regulations no one whose federal recognition was revoked for cause has ever again served in state active duty.
National Guard units have a dual enlistment system, under which anyone enlisting in a state National Guard simultaneously joins in the National Guard of the U.S.
California National Guard members are members of the state unit until called by federal authorities into active federal duty. When they are relieved from active federal duty, they return to state National Guard status.
“Federal recognition” is an acknowledgement by the federal government that the state National Guard member is eligible to serve if called up for active federal duty.
McGuiness did not say in his opinion whether there remained state National Guard positions that do not require federal recognition.
Still, he said, Garcia’s ruling went too far in that it could be read as creating a potential conflict between enforcement of state law, which bars discharge of a National Guard member for saying he was gay, and the federal “Don’t Ask, Don’t Tell” policy, “at least in those instances in which there may be an overlap between state active duty service and federal service requiring federal recognition.”
The case is Holmes v. California National Guard, A083451.
Copyright 2001, Metropolitan News Company