NO PANACEA CALIFORNIA CASE WON'T GUARANTEE GAY ARIZONAN'S AIR FORCE REINSTATEMENT

Tom Paniccia came into the New Times Building dressed in a black suit, his shoes still buffed to a military sheen--the habit of 11 years in the Air Force--and grinning from ear to ear with the thought that he would not be out of uniform much longer.

Paniccia, 28, was discharged from Davis-Monthan Air Force Base in Tucson on October 7, after admitting that he was gay on national television (Out of the Air Force Closet," August 12). Early this week, his lawyers were to file a complaint in U.S. District Court in Phoenix declaring the former staff sergeant's discharge to be unconstitutional and filed as well a motion for preliminary injunction asking that he be reinstated in the Air Force pending trial. And in the wake of Navy petty officer Keith Meinhold's temporary victory in California, Paniccia was optimistic.

"I talked to Keith the other day and he was ecstatic," Paniccia says. "We're using his documents and we're using his strategy."
Paniccia's lawyers, Mark Freeze and Karen Peters, however, keep their optimism well-guarded. "Meinhold's case really isn't of precedential value," says Peters.

Despite media coverage to the contrary, Meinhold, the 30-year-old Navy sonar instructor, has not won his case against expulsion from the military. He has only been granted an injunction to remain in the Navy until the outcome of a trial. However, if President-elect Clinton ends the ban on gays in the military, as he has promised, the trial may never happen. The injunction, Freeze and Peters are quick to point out, depends on two things: that they prove the merits of the case and the likelihood that it would be judged in their favor, and that they prove irreparable harm to the complainant.

Meinhold's attorney was able to argue that if Meinhold had to await trial, he would lose track of the fast-changing technology on which his career depends. In Paniccia's case, Freeze and Peters intend to argue that any absence would impede Paniccia's ability to qualify for Officer Training School, something he must do before he turns 30. They expect a ruling on the injunction within 30 days, which could put Paniccia back in the Air Force; a trial could be years away.

Meinhold's case may influence Paniccia's for better or for worse. "There's a chance [the court] will say, 'They did it in California, we'll do it here,'" Freeze says.

Peters counters instantly, "There's an equal chance they'll say, 'They did it in California, we sure as hell won't do it here.'"

Meinhold's complaint has several prongs: His lawyers plan to argue that his discharge does not explicitly state that he was expelled for being homosexual, and, furthermore, Meinhold had freely admitted his sexuality for years before his dismissal.

"We're going straight for the constitutional issue," says Freeze, and he and Peters intend to prove that Paniccia's equal protection guarantees under the Fifth Amendment have been violated. Then, if Clinton tarries and the case loses in U.S. District Court, they expect to follow it into the Ninth U.S. Circuit Court of Appeals.

Paniccia's battle to be openly gay in the military has been frustrating on the whole. "One thing I've learned is that it's not a question of allowing gays, but of acknowledging gays," he says.

Though he knew few other gay soldiers when he was in the Air Force, he has been surprised by the number he has met, most of them officers, since he was discharged.

The September 21 hearing that resulted in his ouster was decidedly stacked against him. His exemplary record was discounted as evidence and expert testimony on sexuality was disallowed. The prosecution ran the tape of the July 23 Good Morning America segment where he admitted he was gay. When Freeze and Peters interviewed officers as potential board members in the hearing--similar to jurors in a civilian trial--two of these quoted Scripture denouncing homosexuality. Freeze wanted to make a clear distinction between sexual orientation and sexual behavior. Paniccia had said he was gay, but there was no evidence that he had actually engaged in homosexual acts. Furthermore, he raised cases where heterosexual military men had been caught performing homosexual acts, but claimed they were drunk when it happened and consequently were not punished. Freeze jokingly refers to those cases as "the gay for a day exceptions."

The board ruled against Paniccia and recommended his honorable discharge. "When it was official they were going to kick the fag out of the Air Force, that was it," Paniccia says. He was told not to report to his job as a training systems manager pending his official discharge, and he lost the support of his co-workers, who up to that point pretended that it was "business as usual."

"It was worse than coming out of the closet," he says. "After they cut up my ID card, I went back to my car and I cried. I felt more isolated and alone than before I came out."
On Election Day, Paniccia cast his ballot for Clinton in Tucson, then moved to Phoenix so that he could be closer to his lawyers and the eventual trial. He has enrolled in college and has been approached to go on a speaking tour to lecture on gay rights. He was expecting a long wait to get back into uniform.

If Keith Meinhold's case carries any weight, Paniccia may be back in Tucson sooner than expected.

 
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