Brief urges letting military handle issue of gays

March 30, 1994|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- The Clinton administration has urged a federal appeals court to let the military keep out gays in order to shield other service men and women who may object for religious or moral reasons to having such comrades.

Commanders and Pentagon officials, the government's new legal argument contends, have no duty to try to find out exactly why members of the service would not want gays in their ranks.

It is enough that the military believes those negative attitudes exist on "the complex issue of homosexuality" and assumes that morale and military effectiveness could suffer if those attitudes are not respected, according to the legal brief filed in court late Monday and made available here yesterday. The courts must not second-guess those assumptions, the brief contends.

The Justice Department document is the latest to sum up the administration's defense of an anti-gay policy for the military services. It was filed in an appeals court here to support the Naval Academy's refusal to allow the graduation in 1987 of a midshipman after he acknowledged being gay.

The former midshipman, Joseph C. Steffan, who now lives in Sharon, Conn., is asking the court to order the Navy to give him his diploma from the academy and to allow him to be commissioned as an ensign. The Justice Department argued in its new filing that even if Mr. Steffan succeeds in striking down the policy that led to his discharge or succeeds in his claim that he was given a "bum's rush," he still is not entitled to a commission and may not be entitled even to a diploma.

Administration lawyers are involved in court cases around the country on the military policy on gays. They are trying, in Mr. Steffan's case and in several others, to salvage a now-discarded policy in order to justify past discharges of gays. And in a new case in federal court in Brooklyn, N.Y., administration lawyers are trying to justify a new and somewhat changed anti-gay policy put into effect at the end of February.

In the Brooklyn case, U.S. District Judge Eugene H. Nickerson is expected to rule soon on a plea by gays now in the military to stop the Pentagon from enforcing the new policy until a constitutional challenge to it is decided in court. Judge Nickerson was strongly critical of that policy at a hearing earlier this month.

Although the new and old policies are identical or closely similar in many ways, the administration has argued that the new policy is more tolerant of gays remaining in the military so long as they do not engage in any gay sex and do not even say they are gay. In return for their silence, the new policy vows there will be no attempt to identify those who think of themselves as gay.

That policy is not at stake in Mr. Steffan's case. But the Justice Department used Congress' endorsement of the policy in its argument in favor of the idea that the courts should stay out of the military's gay policy, leaving it to the military as a "specialized society separate from civilian society."

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