The Perils of Ignoring an F.O.B.

President Clinton obviously doesn't recognize a friend when he sees one. Judge Terry Hatter Jr. has given Clinton a shot at political redemption, but if the president is grateful, he has a strange way of showing it.

Last month, Hatter, a Los Angeles Federal District Court judge, ruled that the military ban on homosexual service is unconstitutional, giving the president a clear opportunity to fulfill (finally) his campaign pledge to end the ban. Instead of gratitude, though, Hatter got a promise that the Clinton administration will appeal his decision.

Granted, Hatter's ruling complicated things just when Clinton thought he could put the contentious issue behind him. The last thing Clinton needs now that he's finally getting his presidency on track is another messy battle over a "marginal" issue that will distract him and the nation from his crusade for health care reform. On the other hand, if he were to win such a battle, Clinton might finally assert some authority over a renegade Democratic Congress, which has demonstrated little respect for the Democratic president it awaited for so long. Besides, the decision to contest a ruling that he would have praised a year ago underscores the schizophrenia-bordering-on-hypocrisy that has plagued Clinton's actions (or inaction) on nearly every issue--from Haiti to Bosnia--since Inauguration Day.

Judge Hatter twice has deemed the military's exclusion of gays and lesbians unconstitutional, a position that should win the enthusiastic approval of a president who said as much when he was a candidate. Hatter enforced his rulings on September 30 (the day before Clinton's laughable "compromise" was to take effect) by issuing an injunction ordering the military to cease punishing service members or recruits because of their sexual orientation.

President Clinton should welcome this ruling as a blessing. It lends judicial authority to his desire to end the ban, and pronounces him constitutionally correct in his early opposition to the military's discrimination.

So why is the president asking a Court of Appeals to lift Hatter's injunction while it awaits December arguments on the constitutionality of the ban? Because Hatter's ruling jeopardizes Clinton's carefully-crafted "compromise," which cloaks its betrayal of gays and lesbians in the meaningless promise that as long as they remain in the closet no one will try to kick open the door.

As he is known to do, Clinton pretended the don't ask, don't tell policy was a victory for himself and for individual rights. But he couldn't deny that the policy resulted not from any moral imperative but from political realities he had failed to anticipate when he was a candidate.

These political realities--an electorate frightened by the prospect that people don't choose their sexual orientation, a Congress which reflects the prejudice and Puritanical intolerance of the citizenry and a senator more devoted to preserving his turf than protecting civil rights--these realities defined the debate over gays in the military and determined its outcome.

But even political realities must bow to the Constitution. Although Clinton had found a middle route that displeased just enough people to ensure its passage, there was never any guarantee that the "new" policy would withstand a constitutional challenge--Janet Reno warned him of this risk in July.

The beauty of an independent judiciary is that the courts have no obligation to uphold a policy simply because it was framed by political realities. Judge Hatter has demonstrated that he will not sacrifice the constitutional guarantee of equal protection to the political needs of a president who lacks the courage and the conviction to challenge bigotry and prejudice forcefully.

With Hatter's sanction, Clinton now has an opportunity to regain moral authority and end the unjustified exclusion of homosexuals from the military. All he has to do is one thing: nothing. He should decline to appeal Hatter's ruling, forcing the Pentagon to comply with the injunction.

Clinton didn't want the "compromise," and he shouldn't have to spend tax dollars persuading the courts to uphold it. Don't ask, don't tell is Sam Nunn's policy--let him defend it.

Let Senator Nunn draft legislation codifying the original ban if he is unhappy with Hatter's ruling. If Nunn successfully pushes such legislation through both the Senate and the House, Clinton should be true to his moral convictions, as well as the constitution, and veto it. Then let Sam Nunn try to round up enough bigots in both houses to override the veto.

If he succeeds, the issue will inevitably return to the courts. With luck, civil rights will triumph over irrational intolerance, and the courts will continue to strike down the ban.

But even if the courts ultimately were to uphold the original ban, gays and lesbians would be in no worse shape than if Clinton wins a reversal of Hatter's ruling. First of all, the compromise is hardly better than the original ban anyway: While homosexual recruits previously had to lie about their sexual orientation, now they're simply not allowed to tell the truth.

Second, the Clinton administration's legal strategy so far has been to defend the constitutionality not only of the compromise but also of the original ban. If this strategy persists and succeeds, Clinton will have won judicial sanction for the old policy. Clearly, there is much more opportunity for gain than loss in allowing Hatter's ruling to stand, even if it means risking Sam Nunn's bigoted and selfish wrath.

President Clinton jeopardizes his credibility and perpetuates his schizophrenic approach to governing when he asks a court to uphold policies he once denounced. He should demonstrate leadership and consistency by applauding Hatter's ruling, instead of appealing it.