Removal of gay midshipman upheld

November 23, 1994|By New York Times News Service

WASHINGTON -- A federal appeals court has upheld the Naval Academy's removal of a top-ranked midshipman who had acknowledged his homosexuality.

Lawyers for the former midshipman, Joseph C. Steffan, said later that they had not decided whether to appeal yesterday's 7-to-3 decision, issued by the U.S. Circuit Court of Appeals for the District of Columbia. Any such appeal, to the Supreme Court, would provide the justices their first opportunity to consider the issue of homosexuals' service in the military.

Mr. Steffan was forced to resign from the Academy under the Pentagon's old anti-homosexual rules, which were replaced by modified standards last year. The new policy permits homosexuals to serve as long as they remain silent about their sexual orientation, except in the most private of settings, and do not engage in homosexual acts. But, like the old policy, it provides for removal of those who publicly declare a gay sexual orientation.

Several civil rights lawyers said they expected that the decision would be appealed because if left in the lawbooks as a precedent, it would be considerably more difficult for gay soldiers and sailors to raise constitutional challenges to the new policy.

The decision yesterday by the appeals court is also unlikely to be the last word, since it conflicts with a San Francisco federal appeals court ruling on the old policy just a few months ago.

That decision found that the government violated the Constitution by dismissing Petty Officer Keith Meinhold, a Navy instructor, after he told a television interviewer two years ago that he was gay.

The government has until Nov. 29 to decide whether it will appeal the Meinhold case, a step that appears unlikely.

In this instance, Mr. Steffan was forced to resign from Annapolis in 1987, six weeks before he was scheduled to graduate as one of the 10 highest-ranking midshipmen in his class.

He had received consistently outstanding marks for his leadership abilities and military performance.

In his junior year, he was selected as battalion commander and placed in direct command of one-sixth of the Academy's 4,500 midshipmen.

After he told another midshipman and a chaplain at the Academy that he was gay, an investigation was begun.

Confronted by a disciplinary board, Mr. Steffan acknowledged that he was a homosexual. The board then changed the evaluation of his military performance from "A" to "F" and recommended that he be discharged.

Permanently barred from rejoining the military, he went on to law school.

Three months ago he began a clerkship with a federal judge in New Jersey.

Mr. Steffan had maintained that his forced resignation from Annapolis violated the equal protection guarantees of the Fifth Amendment because he was punished for his status as a homosexual, not for any offending conduct.

The government had responded that it had a legitimate interest in fostering good order and morale among the troops, both of which, it said, are undermined by the presence of homosexuals.

Yesterday's opinion was written by Judge Laurence H. Silberman, an appointee of President Ronald Reagan, and was joined in whole or in part by six other judges who were appointed by either Mr. Reagan or President George Bush.

Judge Silberman said that the military proscription of members who assert that they are homosexuals did not violate the equal protection clause and was no different from the Navy's height requirements or other government employment requirements on age or good eyesight.

He dismissed Mr. Steffan's argument that the policy punished sexual preference, not conduct. "Although Steffan's argument has a certain superficial attractiveness, it seems to us that upon close examination it is more clever than real," Judge Silberman said.

In their dissent, the only three judges on the panel appointed by President Jimmy Carter and Mr. Clinton said that the majority had unfairly transformed Mr. Steffan's case into one concerning homosexual behavior, even though the Navy never accused him of engaging in such conduct.

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