Ousted gay Mid escalates fight for job

April 10, 1994|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- Lawyers for ousted Naval Academy midshipman Joseph C. Steffan, who is gay, have escalated in court their efforts to get him into the Navy as an officer.

In a surprise revelation, the attorneys told the U.S. Circuit Court of Appeals here that President Ronald Reagan in 1987 had proposed Mr. Steffan for an ensign's commission and the Senate had approved. Both actions came weeks after he left the Academy in disgrace that year, the new legal document indicated.

The lawyers' brief Friday did not offer an explanation for the presidential and senatorial action, and the Navy and Justice Department refused to comment. Although it is possible that the White House and Senate had acted without paying close attention to the list of officers they were approving, the government recently made a major constitutional issue out of the "sensitive matter" of who has authority to act on commissions.

In fact, Clinton administration lawyers used that as their sole plea in getting the Steffan case reopened. It would be unconstitutional, the administration had said, for a court to step in and grant a commission that only the president and Senate can confer. But lawyers for Mr. Steffan now counter that those branches have acted, so all that is needed is to hand over the commission.

Justice Department lawyers did not want to make a full-scale defense of the policy that led to Mr. Steffan's ouster as a midshipman, so they settled on the narrow issue of his commission. The policy used then has since been replaced by one that the administration regards as more tolerant of gays.

Mr. Steffan left the academy on April 1, 1987, after he acknowledged being gay when asked by a superior officer. He had a distinguished career there, he has noted, claiming that his homosexuality alone led the Navy to deny him a diploma and a commission.

The new legal gesture, lawyers involved in the case said, was designed partly to embarrass the Clinton administration for its handling of the Steffan case and partly to undercut the narrow legal argument the administration had settled on to rescue its defense of his ouster.

One of Mr. Steffan's attorneys, Beatrice Dohrn of the Lambda Legal Defense Fund, said the lawyers "didn't go look for this [proof of presidential and Senate approval] until they [administration lawyers] made such a big deal out of this."

In November, a three-judge panel of the Circuit Court here ruled that Mr. Steffan had been ousted from the academy unconstitutionally and was entitled to a diploma and commission.

In December, the Clinton administration urged all 10 members of the Circuit Court to reconsider the case, and the full court agreed in January to do so.

Friday's filing by the Steffan attorneys was part of the process leading to a court hearing May 11.

JTC Yesterday, Mr. Steffan's lawyers attacked as "frivolous" the administration challenge to the commission. They told the court: "The political branches have already acted."

They cited congressional files showing that Mr. Reagan nominated Mr. Steffan on May 11, 1987, to be an ensign, the Senate Armed Services Committee approved May 14 and the full Senate agreed May 15 -- six weeks after Mr. Steffan had left Annapolis.

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