Justices rule US must give fired gay a court review

Homosexuals may not be fired from government service as ``security risks'' without the benefit of a court review and a determination as to whether their constitutional rights have been violated. This was the finding of the United States Supreme Court yesterday in a case involving the Central Intelligence Agency's authority to dismiss an employee on security grounds solely because he was homosexual.

The justices' 6-to-2 vote kept alive a CIA worker's lawsuit against the government.

(Another key individual rights ruling was handed down in the criminal-justice area, bolstering so-called Miranda protections for those accused of crimes. Page 2.)

The ruling in the CIA case could have broad implications for other legal actions regarding the rights of homosexuals, including a current dispute likely heading for the high court involving the policy of banning homosexuals from the armed services.

The Supreme Court has up to now reviewed only a handful of cases on gay rights. In 1986 the justices - by a 5-to-4 vote - ruled in a Georgia case that homosexual conduct is not constitutionally protected. It did not, however, specifically address the issue of whether a federal agency may discriminate against individuals because of their sexual orientation.

The high court deadlocked 4 to 4 (with one member not voting because of illness when the case was heard) on an Oklahoma statute banning the advocacy of homosexuality or homosexual conduct.

A federal appeals court had struck down the state law as unconstitutional. As a result of the tie vote, the appeals court ruling stood, but no precedent was set.

The justices' decision yesterday in Webster v. Doe is seen as a sharp rebuff to the Reagan administration, which had argued that the CIA should have absolute latitude to dismiss workers if such action was ``in the interests of the United States.''

Solicitor General Charles Fried told the court in January: ``There does come a point where the agency simply must be able, without giving reasons ... and without triggering inquiry within open court,'' to dismiss an employee deemed a security risk.

Mr. Fried said that the 1947 law establishing the CIA gives the agency's director the power to fire an employee if the dismissal is deemed ``necessary or advisable'' to protect the interests or intelligence sources of the nation.

The law states that the decision to release a worker on such grounds is not subject to court review.

Lawyers for the dismissed worker in the case countered, however, that there are limits to the CIA director's discretion.

``People who are directly injured by an unconstitutional action of an executive agency officer can get a review of that claim in the courts,'' insisted Mark Lynch, lawyer for the former CIA agent known to the court only by the fictitious name of ``John Doe.''

Chief Justice William Rehnquist agreed.

Writing for the court's majority, Justice Rehnquist said that allegations of violated constitutional rights may be subject to judicial scrutiny.

Mr. Rehnquist rejected the administration's claim that the CIA director has absolute discretion in all employment-related decisions.

The federal appellate court had earlier ruled that Doe could be fired if found to be a legitimate security risk but that he could not be dismissed as a result of a general policy to deny jobs to homosexuals. The Supreme Court upheld this view.

``We do not think [the 1947 law] may be read to exclude review of constitutional claims,'' Rehnquist wrote.

The justices held, however, that federal courts are not bound to review non-constitutional claims stemming from CIA dismissals.

Rehnquist was joined by Associate Justices Harry Blackmun, William Brennan, Thurgood Marshall, John Paul Stevens, and Byron White.

Associate Justices Sandra Day O'Connor and Antonin Scalia dissented. Associate Justice Anthony Kennedy, who joined the court after this case was argued, did not vote.

``Doe'' had joined the CIA as a clerk-typist in 1973 and worked his way up to a covert job as an electronic technician, for which he was given excellent ratings.

In 1982, he voluntarily told an agency security officer that he was homosexual. He was then placed on paid leave, pending an investigation. That same year, he was notified of his dismissal by then-CIA director William Casey. The agency claimed that Doe's homosexuality made him a security risk. The fired worker sued the agency, demanding reinstatement. He claimed his constitutional rights were violated when he was not allowed a judicial hearing.

A federal trial judge ordered reinstatement and rejected the CIA's argument that its action could not be reviewed by the federal courts. The panel of the US Court of Appeals for the District of Columbia also confirmed the power of the courts to intervene but returned the case to the trial judge to determine whether Doe's dismissal was justified.

Wednesday's Supreme Court decision upheld this finding, sending Doe's case back to a federal trial judge. Chief Justice Rehnquist said the lower court ``should address [Doe's] constitutional claims and the propriety of equitable remedies [reinstatement and back pay] sought.''

Securities ruling

In another decision yesterday, the high court expanded the financial liability of promoters of business deals that turn sour. The justices ruled, 7 to 2, that a Texas oil man may not have to bear full financial liability for selling unregistered oil and gas leases - that a promoter of the deal may be forced to share liability. Lower court restudy of the case was ordered.

Wednesday's ruling also favors the Securities and Exchange Commission, which argued that promoters who are not themselves sellers of securities should not be immune from penalties in such cases.

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