THE United States military's exclusion of homosexuals is being chipped away by legal challenges even as President-elect Clinton weighs ending the ban on his own.
Gay-rights advocates say they still expect Mr. Clinton to fulfill his campaign pledge to allow homosexuals in the armed services. Top Pentagon officials may well believe the same thing, as they have noticeably softened their tone on the subject in recent weeks.
But even if Clinton does not end the ban, the courts now might. A recent US Supreme Court action on a case brought by an Army captain discharged for being a lesbian shows "a court would not hesitate to strike this down as unconstitutional," claims one of the officer's lawyers, Mary Newcomb of the Lambda Legal Defense Fund.
The high court action in question is one of those whose importance lies not in what justices did, but in what they did not do.
Early this month, without comment, the Supreme Court declined to take up the case of Dusty Pruitt, an Army Reserve captain who was denied promotion to major and then discharged from the service after revealing in news interviews that she was a homosexual.
By refusing to get involved, justices let stand a 9th US Circuit Court of Appeals ruling that in essence says the Department of Defense has to come up with better evidence that allowing homosexuals to enlist would impair the ability of the armed services to carry out their military missions. Simply pointing out that many people are prejudiced against gays isn't enough to justify the exclusion, said the lower court ruling.
The ruling allows Ms. Pruitt, a Los Angeles-area minister, to continue to pursue her legal attempts to gain reinstatement into the Army Reserve.
The Supreme Court's reasoning in declining to accept the case is important because historically civil courts have deferred to the Pentagon's judgment on this matter. Judges have simply taken at face value military assertions that gays would impair readiness and fighting ability.
Now, say Pruitt's lawyers, for every commander who takes the stand and testifies that the presence of gays would degrade his unit, they will be able to produce a current member of the military who is gay and has received positive performance ratings.
They could produce, for instance, Keith Meinhold, a petty officer rated one of the Navy's best airborne sonar analysts and instructors. Mr. Meinhold was kicked out of the service last year after revealing he was gay during an ABC TV interview. Earlier this fall, a US district judge ordered Meinhold reinstated to his job, pending the outcome of his suit for reinstatement.
In his ruling on the Meinhold case, District Judge Terry Hatter Jr. stated that he believed it likely the Pentagon's ban on gays would be found to violate the equal-protection clause of the Constitution.
The Pentagon itself now says gays are no more susceptible than heterosexuals to blackmail and thus a security risk. All their remaining reasons for their ban "are related to stereotypes about gays," Ms. Newcomb says.
But there are still many precedents that the Supreme Court could follow in upholding the military ban on gays, if it comes to that kind of legal test, point out other experts.
Contested discharges for homosexuality have been upheld in both the military review process and the civilian court system, says a Congressional General Accounting Office report issued earlier this year. "This has been true even in cases involving personnel with exemplary service records," the GAO study says.
The Supreme Court has also said it is legal to outlaw homosexual acts.
"Once the Supreme Court has said that about the sexual activity of gay people, it is not terribly likely the court would say they are entitled to special status and can't be discriminated against," says Ruth Colker, a Tulane University law professor and expert in gay civil rights.
"But it is not impossible that the court could hold both ways," Ms. Colker adds.
The chairman of the Joint Chiefs of Staff, Gen. Colin Powell, still strongly supports the ban. Among other top officers, he has said he is pleased President-elect Clinton is willing to listen to his views on the issue. Yet in a recent speech, General Powell also said that eliminating the ban would neither "break the armed forces" nor cause waves of people to leave the services.
"We will take our instructions from the President and the Congress," Powell said in a speech last month to a student audience.