U.S. appeal to limit scope of fight over gay ex-Mid

December 30, 1993|By Lyle Denniston | Lyle Denniston,Washington Bureau

WASHINGTON -- The Clinton administration is planning to fight a court order requiring the Navy to give a commission to gay former midshipman Joseph C. Steffan but is not expected to use his case to make a full defense of the military's power against homosexuals, government sources said last night.

If the planned legal maneuver succeeds, Mr. Steffan might be able to serve in the Navy, but not as an officer. He might also be eligible to get back pay covering the six years since he was forced out of the Naval Academy, just before graduation and after a much-decorated career as a midshipman.

A full-scale defense by the government of the Pentagon policy on gay service members probably will wait until the government's new compromise regulations -- just announced last week -- become directly at issue in a future lawsuit. Such a lawsuit is expected to be filed next month by gays now in uniform.

The decision by the U.S. Circuit Court of Appeals in the Steffan case went the furthest of any in recent months to protect gays in the military from being discharged solely because they are gay. The decision also nullified the military's long-standing ban on gays in uniform -- a policy that has been relaxed somewhat by the new compromise worked out by the administration and codified by Congress.

The new policy allows homosexuals to serve in the military as long as they keep their sexual preference a secret. The military will not ask recruits if they are gay, and commanders are not supposed to engage in "witch hunts" against suspected gays in the ranks unless there is credible evidence of homosexual acts.

Since the ruling in Mr. Steffan's favor in mid-November, the Justice and Defense departments have been negotiating over how to deal with that case.

Some Pentagon officials have reportedly urged government lawyers to challenge all aspects of the Circuit Court decision in order to defend military prerogatives to the fullest, but Justice Department officials have argued that federal lawyers would be on stronger ground defending the new policy. Only the old policy banning gays was at issue in the Steffan case.

Today, the Justice Department is expected to reveal the option the two agencies have reportedly agreed to accept: only a plea for the courts not to order that Mr. Steffan be granted a commission. That strategy was revealed last night by several sources inside and outside the government, who insisted on anonymity.

The strategy apparently is also a compromise: to defend the president's constitutional power to decide who gets a military commission without rallying behind the old policy used against Mr. Steffan.

Under the Constitution, the power to appoint "officers of the United States," including military officers, is given to the president, with approval by the Senate. It is that authority that the Justice Department is preparing to invoke in the Steffan case.

Under the Circuit Court decision, the Pentagon was ordered to give Mr. Steffan a Naval Academy diploma, reinstate him in the Navy and give him an officer's commission -- presumably, as an ensign.

Federal law provides that a Naval Academy diploma carries with it a commission, but the Justice Department reportedly will argue that a court may not interfere with the president's power to decide who gets a commission.

The department would be able to make that plea, it appears, without having to fight the broader part of the court ruling saying that Mr. Steffan was forced to quit under an unconstitutional policy based on prejudice against homosexuals.

Mr. Steffan, now 29, is attending law school and lives in Sharon, Conn. He was not available for comment on the new development, nor were his attorneys.

Evan Wolfson, a staff lawyer for the Lambda Legal Defense Fund, a gay rights group, denounced the government strategy as "a petty effort to continue denying an outstanding midshipman his commission. . . . After this long a fight, he is entitled to the relief ordered by the court. We are confident of getting that."

But he said he was pleased that the Justice Department appeared to be opting not to challenge the basic constitutional principles that led the Circuit Court to strike down the former anti-gays policy.

The ruling favoring Mr. Steffan was made by a three-judge panel of the Circuit Court. It appears that the challenge will be made in a plea to the full ten-member court.

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