Celibate gays could stay in uniform, lawyer says Court is reviewing academy expulsion

September 14, 1993|By Lyle Denniston | Lyle Denniston,Washington Bureau

WASHINGTON -- A Clinton administration lawyer tried to assure a federal court yesterday that a member of the military who publicly admits being homosexual might be able to stay in uniform by claiming never to have had gay or lesbian sex and vowing never to do so.

Anthony J. Steinmeyer, a Justice Department attorney, made the point during a hearing by a three-judge panel of the U.S. Circuit Court of Appeals. The panel is reviewing the Naval Academy's 1987 ouster of Midshipman Joseph C. Steffan after he said he was gay.

Mr. Steffan, 28, was forced out of the Academy just before graduation. He is seeking his diploma in a lawsuit that challenges the military's existing anti-gay policy and that raises doubts about the Clinton administration's so-called "don't ask, don't tell, don't pursue" rule due to take effect Oct. 1.

At yesterday's hearing, the judges were openly skeptical and sometimes sharply critical of the military's old and new policies against homosexuals in uniform.

Faced with that, the government's lawyer said the policies did offer some chance to avoid automatic discharge even after revealing one's homosexual status.

A truly "celibate homosexual," Mr. Steinmeyer argued, would not be considered by the military to be a "homosexual" under the Pentagon's present and past rules against gays. A "homosexual," he said, is one who "desires" sex, and a celibate does not meet that definition.

The government, he added, "does not take action against people for thoughts unrelated to conduct."

But, Mr. Steinmeyer stressed, discharge could be avoided only if military officials actually believed a soldier's claim of celibacy.

President Clinton's new policy does not explicitly give the assurances that Mr. Steinmeyer offered in court. Specific new rules are to be written this month to clarify it.

Mr. Steinmeyer's claim was dismissed as "preposterous" by Mr. Steffan's lawyer, New York attorney Marc Wolinsky.

Under the new and old policies, a gay or lesbian who acknowledges that status would be discharged unless he or she is proved not to be homosexual, Mr. Wolinsky said.

Past policy has never been interpreted the way the government lawyer suggested, he said.

Mr. Steinmeyer conceded, under questioning by Circuit Judge Patricia M. Wald, that not one homosexual has ever managed to stay in the service by making a claim of celibacy.

The lawyer's comments also prompted Circuit Judge Abner M. Mikva to accuse the lawyer of drawing such fine distinctions that he was "dancing on the head of a pin."

Mr. Steffan was appealing a ruling by U.S. District Judge Oliver Gasch who in 1991 upheld the Navy's right to expel him.

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