The Campaign's legal and political analysis of the Meinhold appeal is based on the following facts regarding the Meinhold case and the Clinton-Nunn compromise: 1. The Navy discharged Keith Meinhold for stating that he was gay. Meinhold sued and on January 28, 1993, Judge Hatter issued an opinion that the military ban was unconstitutional and reinstating Keith Meinhold into the Navy. The judge also issued the following injunction: "The Department of Defense is perma- nently enjoined from discharging or denying enlistment to any person based on sexual orientation in the absence of sexual conduct which interferes with the military mission of the armed forces of the United States." This injunction clearly precludes the military from discharging any person based on that person's status as gay. The injunction can also be read as precluding discharges based on a person's gay conduct, unless that conduct would "interfere with the military mission." 2. Soon after Clinton's inauguration, Senate Republicans stated that they planed to introduce an amendment that would place the military ban against gay people into law. It was widely accepted on Capitol Hill that this amendment would pass unless Senator Nunn (together with other Southern Democrats) would oppose the Republican amendment. In order to gain Nunn's support, negotiations were held between Nunn, Clinton, and the Senate Democratic Leadership. These negotiations culminated in an agreement on the evening of January 28, the same day the Meinhold decision was issued. 3. On January 29, Clinton announced the agreement in a press conference. The agreement included the following: a) The Department of Defense (DOD) would conduct a review of the current policy and prepare a draft executive order by July 15, 1993 (presumably recommending lifting the ban). b) The military would refrain from asking applicants about their sexual orientation. c) The Department of Justice (DOJ) would seek continu- ances in all current cases litigating discharges -- i.e., the Administration would stop actively defending the military's policy in court as constitutional. d) Servicemembers found "guilty" of gay conduct would continue to be discharged as before. Servicemembers who stated they were gay (i.e, those "guilty" of gay status), could have their discharges changed to placement in the standby reserve -- where they would lose their pay and benefits. 4. At the Jan. 29 press conference, Clinton was asked whether DOJ would appeal the Meinhold case and whether he felt that the case strengthened his hand. Clinton ignored the ques- tion regarding a possible DOJ appeal. Instead, Clinton stated that the case strengthened his hand because he agreed with the "principle embodied in the case" and because it made the practi- cal point that this issue could potentially be decided by the courts in a way that would not deal with the range of practical concerns raised by the issue -- in contrast to the opportunity Clinton was now giving Congress and the military through his agreement with Nunn. 5. There is no evidence that the negotiations between Clinton and Nunn included any explicit agreement regarding the Meinhold injunction. (In fact, Clinton stated at the press conference that he had not yet read the opinion.) Indeed, if Clinton and Nunn had an understanding that the Meinhold injunc- tion would not be appealed, it is astonishing that Clinton did not mention this agreement at the press conference. This is because the injunction, on its face, was directly contradictory to the agreement Clinton was announcing at the time. It is also very hard to imagine that Nunn would have agreed to the Meinhold injunction not being appealed (assuming the injunction was discussed during the negotiations), because the injunction was directly contrary to what Nunn was demanding and receiving regarding military policy over the next six months--i.e., contin- ued discharges for conduct and standby reserve placements for status. 6. The Campaign believes that the full implications of the Meinhold injunction were probably not clearly understood by the negotiators (perhaps because the decision was just handed down that day), or were deliberately glossed over in order to reach an agreement. In any event, an agreement was reached with no explicit understanding regarding an appeal of the Meinhold case. Based on that agreement, Nunn supported the President and on Febuary 4, 1993, carried with him the necessary votes to defeat a Republican amendment establishing the ban permanently. Nunn successfully offered an alternative amendment giving DOD six months to develop a proposed executive order. 7. The Clinton-Nunn compromise, and the six (now five) months bought by that agreement are the lifeblood of the effort to lift the military ban. These five months give the Campaign and supporting organizations precious time to develop the lobby- ing, grassroots, media, and legal strategy necessary to win this issue in Congress this coming July. Any action that jeopardizes this compromise could result in another Republican amendment being offered AT ANY TIME on the Senate floor--an amendment that we will in all likelihood lose. The game would then be over. 8. Initial efforts were undertaken by the Campaign to develop a consensus response to the Meinhold case. Because the Meinhold injunction contradicted the Clinton-Nunn compromise, Chai Feldblum, as the Campaign lawyer, started talking with lawyers around the country over three weeks ago noting that DOD and DOJ might feel the heat at some point to deal with the injunction. These conversations occurred with Bill Rubenstein of the ACLU (one of the Campaign's founding member organizations), Jon Davidson (ACLU-LA and co-counsel on Pruitt), John McGuire (Meinhold's lawyer), Marc Wolinsky (NY lawyer heavily involved in drafting a proposed Executive Order), and Nan Hunter (former ACLU lawyer), among others. The lawyers agreed to disagree about how to deal with the expected governmental action whenever it oc- curred. 9. DOJ did, in fact, take action. On February 12, DOJ asked the district court to change its injunction to state that it did not conflict with the President's compromise or, alterna- tively, to stay the injunction. Meinhold's lawyer opposed this request and it was rejected by the district court on February 19. On March 3, sooner than we had explicitly been led to believe, DOJ took the next step of asking the Ninth Circuit to stay the Meinhold injunction. 10. The Campaign deplores the fact that DOJ asked for a stay of the Meinhold injunction. The Campaign believes, however, that DOJ's actions were inevitable and unfortunately necessary in light of the Clinton-Nunn compromise. Inaction on DOJ's part with regard to the Meinhold injunction could easily have been perceived on Capitol Hill as a breach of the Congressional agreement--precipitating a Senate vote that we would have lost. We do wish, however, that there had been better coordination between DOD, DOJ, the White House and the gay advocacy groups (including the Campaign) on this issue. It was wrong that we learned of DOJ's appeal through a news story, not from an Admin- istration contact. If we had been briefed earlier by the Admin- istration that DOJ was planning to appeal, we could have better coordinated a consensus response among the groups. 11. The bottom line, however, remains the same. DOJ never argued to the Ninth Circuit that the military ban is constitu- tional. This is a critical point. Instead, DOJ made some dislikeable legal arguments, all designed simply to buy time so the compromise could stay in effect. Our best hope also lies in having the compromise remain in effect. So, while we should deplore the fact that DOJ had to ask for a stay of this good decision, we must also be clear that this appeal was politically necessary to keep the compromise in place and thus to give us a fighting chance to win this issue ultimately in Congress.