U.S. court split on reinstating gay former Mid

May 12, 1994|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- Former Midshipman Joseph C. Steffan, ousted from the Naval Academy after he acknowledged being gay, appeared to be a vote short yesterday in his efforts in federal court to get his diploma and commission.

The 11-member U.S. Circuit Court of Appeals showed itself to be split during a spirited 95-minute hearing on Mr. Steffan's constitutional challenge to his discharge in 1987, weeks before graduation.

Held in the largest courtroom in the U.S. Courthouse here, with nearly every seat taken, the hearing on the case is considered a major test of the government's power to order gays out of the military.

The Steffan case is one of a series of court challenges to both the Clinton administration's new policy against gays in the military, and the old policy that has been replaced but is still under challenge in leftover cases like Mr. Steffan's.

The administration insists that the new and old policies differ sharply, but gay-rights activists say both are punitive toward gays. Under the new policy, gays can stay in the military if they remain silent about their sexual orientation. They also can stay if they reveal their homosexuality but can then prove that they actually are not gay. Under the old policy, no person found to be gay could remain in uniform, under any circumstances.

Yesterday, four of the appeals judges made comments or asked questions that were favorable, sometimes strongly, toward the ex-midshipman's plea, and a fifth seemed skeptical of the Justice Department's position. But five others seemed to be siding with the military's power to discharge gays, out of fear that their presence in uniform would be disruptive in the ranks.

Six votes will be needed to win the case. Only one of the 11 remained silent: Judge Karen LeCraft Henderson, a conservative whom gay-rights advocates have not expected to favor Mr. Steffan.

The judges' actions may not reflect the way they will vote when the Circuit Court takes final action on the appeal later this year. But the preliminary indications put the ex-midshipman's challenge in doubt.

The court's three most liberal judges, in a ruling in November, decided that Mr. Steffan's discharge was unconstitutional. The Navy had ousted him, that panel of judges said, "solely because he admitted his sexual orientation."

That proved, however, to be only a temporary victory for Mr. Steffan, who is about to graduate from law school at the University of Connecticut. The conservative majority of the full Circuit Court erased the panel's ruling in January by voting to reconsider the entire case -- a fairly unusual move -- thus leading to yesterday's hearing. Mr. Steffan sat with his parents in front-row seats.

The three judges who had ruled for Mr. Steffan in November -- Abner J. Mikva, Harry T. Edwards and Patricia M. Wald -- left little uncertainty yesterday that they still are on his side. Repeatedly, they intervened in the questioning to make favorable comments about Mr. Steffan's plea. President Clinton's nominee to the court, Judge Judith W. Rogers, in her first major case, also made supporting remarks.

Judge Douglas H. Ginsburg, a conservative, appeared skeptical what he called a "paradox" in military policy: requiring the discharge of a homosexual who engages in sex with a civilian off the base, "with no impact on the military," but allowing a gay who admits on the base to being gay to remain in service if he can

show that his sexual orientation would not lead to sexual activity.

Justice Department lawyer Mark I. Levy, defending the Pentagon's rules on gays, said that the "paradox" mentioned by Judge Ginsburg was "a rational distinction" that the military should be able to make.

Marc Wolinsky of New York City, Mr. Steffan's lawyer, ran into critical questioning from conservative Judges Laurence H. Silberman and A. Raymond Randolph, and three other conservative judges displayed some sympathy for the Pentagon's rules.

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