If Schroeder's bill fails, the regulation could also be changed by presidential executive order. Democratic candidate Bill Clinton said, during the Tracy Thorne Nightline segment, "I think there ought to be a presumption in favor of Americans being able to serve their country."
And the ban could be overturned in the courts, though the U.S. Supreme Court has twice refused to hear cases regarding gay soldiers. Miriam Ben-Shalom's case was the first. The Wisconsin drill sergeant was expelled from the Army in 1975, but lower courts forced her reinstatement in 1987. That decision was appealed by "those baggy-assed old men in the Pentagon," as she describes them, and the case was reversed in 1990. Ben-Shalom was classified an "erroneous enlistment" and subsequently released without a formal discharge and without benefits. Ironically, during the years of her reinstatement she won recognition as best drill sergeant instructor at her base. "The people I worked with were just fine," she insists.
When Paniccia returned to work after his TV admission, his supervisor, Senior Master Sergeant Larry Bearden (who was not permitted to speak to New Times), grasped for words, and Paniccia picked them out for him. "I hope it's business as usual," Paniccia said.
"That's just what I want," answered Bearden.
Paniccia's lawyers, Karen Peters and Mark Freeze of the Phoenix firm Squire, Sanders & Dempsey, are watching a California case in which an Army Reserve captain (and Methodist minister) named Dusty Pruitt filed for reinstatement on the grounds of freedom of speech. The Ninth U.S. Circuit Court of Appeals denied Pruitt's appeal on that basis, but remanded the case to the district-court level to determine if she could claim her rights to equal protection under the law.
Peters and Freeze have taken Paniccia's case on a pro bono basis. They are young, and eager to go to the Supreme Court if they can. Peters has a lava lamp in her office; Freeze is a dead ringer for Kiefer Sutherland. Says Freeze: "The Supreme Court has not ruled on this issue. They have ruled on sexual issues, but the narrow issue is: Is this military policy unconstitutional under the equal-protection clause of the Constitution? Other circuits have ruled on it. The Ninth has not, but they're making noises. If they rule for Pruitt, there would be a split in the circuits." And a precedent set, though no one is holding his breath.
@rule:
@body:Staff Sergeant Tom Paniccia sat alone at a table in an off-base McDonald's restaurant. His battle fatigues were pressed and flawless, his black boots buffed to incandescence. He was not allowed to talk to New Times while in uniform, and he was trying hard not to give the Air Force any grounds for issuing a less-than-honorable discharge by disobeying that order.
If closet military life had been lonely, this was exile and abandonment. None of his friends in the Air Force--the only friends he has--would talk to New Times on his behalf, not even the superiors who wrote such glowing evaluations of his service. They had been instructed by the Air Force not to talk to the press. When a Tucson television station tried to do man-on-the-street interviews with airmen in uniform outside the gates of the base, nearly all declined comment.
He has no idea when he will be separated from duty, when he will stop receiving his paycheck, when he will be granted a hearing. He remains stubbornly committed.
"I said three words--I am gay," he says, by way of dismissal. "Does that change anything?"
On the Sunday after he came out, Paniccia was looking for inspiration on his knees in a church in Tucson, wondering what his late mother would think of him and praying, "God, give me strength. Help me to know I did the right thing. Help me to know that You still love me."
The gravity of his situation had sunk in: He would likely lose the only career and life he has known. But he left church calm, his resolve intact.
A day later, he was called into his commander's office to meet with Air Force investigators. His senior master sergeant and his captain went with him for moral support and listened as the investigators politely read him his rights. At the end of the week, when the commander returned to the base, he cordially informed Paniccia that the discharge procedure had begun. The two exchanged pleasantries, but the rules are firm: Paniccia had seven days to make a choice. He could waive his rights and quietly leave the Air Force or request a formal hearing. Last Friday he chose the hearing. That was the point from the outset. It will likely touch off a long and bloody battle. And if Tom Paniccia gets shot down while stoically and futilely waving the colors of his idealism, he won't be the first military hero to do so.
OBJECTION D'ART SAY, BUB, WHAT'S THE EX... v8-12-92
