Gay ruling is erased on appeal

January 08, 1994|By Lyle Denniston | Lyle Denniston,Washington Bureau

WASHINGTON -- A conservative majority of the federal appeals court here yesterday erased gay former Midshipman Joseph C. Steffan's legal victory in his fight to serve in the Navy, forcing the Clinton administration to defend military policy against homosexuals sooner than it wanted.

A majority of the U.S. Circuit Court of Appeals here, in a surprise order, voted to reconsider a decision in November by a three-judge panel that Mr. Steffan was discharged unconstitutionally from the United States Naval Academy and must be reinstated in the Navy and given his commission as an ensign.

Yesterday's order by a majority of the full 10-judge Court of Appeals raised the possibility that Mr. Steffan's case would become the major constitutional fight over the whole concept of treating gay soldiers and sailors differently solely because they say they are homosexual.

The Clinton administration did not want the Steffan case to become the key test, because it preferred to make its constitutional defense later when President Clinton's new compromise policy on gays goes into effect and is challenged in a new lawsuit.

Mr. Steffan won his case under an old Pentagon policy banning homosexuals.

The new policy relaxes the ban, allowing homosexuals to serve in the military as long they keep their sexual orientation a secret.

Justice Department lawyers wanted to wait for a new lawsuit against the policy -- a lawsuit they felt more comfortable defending.

Last month department lawyers asked the Circuit Court only to reconsider whether Mr. Steffan should get a commission, not whether his discharge was a violation of his constitutional right to equal treatment.

The Circuit Court, however, chose to take up -- before all 10 judges -- the whole Steffan case. It did so after one of its own judges asked the full court to resolve everything, not just Mr. Steffan's commission.

Highly unusual

That is a highly unusual action for a federal appeals judge, since parties involved in a case usually are the ones who take the initiative on such questions.

A reconsideration of a ruling by the full Circuit Court could have been ordered only by at least six judges -- a clear majority of the 10.

Since the three judges who ruled in Mr. Steffan's favor were the court's only remaining liberal members, and since panel members usually do not vote to reconsider their own decision, it appeared that six and possibly seven of the court's conservative members voted to look at the entire case at the request of one of their number.

When the full Circuit Court reaches a decision, it will take a majority of at least six to prevail.

If, as expected, Mr. Steffan's side holds the three liberals, his lawyers would have to get the votes of only three of the seven conservatives to win.

Mr. Steffan's lawyer, Marc Wolinsky of New York City, said last night that "we expect again to prevail" before the full court.

Discharged in 1987

Mr. Steffan, 29, was discharged from the Naval Academy just weeks before his graduation in 1987 after he admitted, when asked, that he is gay. He has vowed to fight for his ensign's commission.

It has been clear over the past month that the Clinton administration wants to focus on the new compromise policy rather than defending the 50-year-old ban.

Just yesterday, the Defense Department said that all of those service members who had been threatened with discharge under the now-replaced ban would be given a new chance to defend their opportunity to stay in uniform.

The Circuit Court's order, however, had the effect of switching the legal emphasis entirely back to the old policy and of keeping the legal status of homosexuals in the military in an uncertain state.

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