Navy is ordered to give gay Mid his commission

WASHINGTON — WASHINGTON -- A federal appeals court, in a wide-ranging ruling that cast new legal doubt on the government's policy against gays in uniform, ordered the Navy yesterday to give an officer's commission to a gay man denied a Naval Academy diploma in 1987.

The Pentagon said it would obey the ruling -- a victory after five years of court fights for Joseph C. Steffan of Sharon, Conn.


"I was discharged from the Naval Academy and denied an opportunity to serve my country because of who I am," Mr. Steffan said at a news conference in New York. "Today I am back in the military, and I am very grateful for this."

He had been forced out of the Academy just six weeks before graduation, just when it seemed that "the sky was the limit" for his promising Navy career, the U.S. Circuit Court of Appeals here remarked in its decision.


It was the fifth straight federal court decision this year overturning Pentagon actions against gays. But no other federal court has gone as far in recent rulings on gays in the military as the three-judge panel did in its unanimous decision.

"America's hallmark," the court said, "has been to judge people by what they do, and not by who they are. It is fundamentally unjust to abort a most promising military career solely because of a truthful confession of a sexual preference different from that of the majority. . . ."

Although the Clinton administration said nothing definite yesterday about taking the Steffan case on to the Supreme Court, such an appeal is likely because of the broad sweep of the ruling and its precedent-setting effect on the entire issue.

The Academy had no comment.

Gay rights lawyers saw the ruling as a landmark victory. Kevin M. Cathcart, executive director of the Lambda Legal Defense and Education Fund, said he hopes the decision "will help bring the government to its senses and convince it to stop . . . ruining the careers of its men and women, like Joseph Steffan."

By his second year at the Academy, Midshipman Steffan was called "gifted" by his teachers and described as an "asset to the Academy." He was named a battalion commander in his senior year, making him one of the ten highest ranking students at Annapolis.

But, when Academy officials learned in early 1987 that he was gay, his military performance rating dropped instantly from A to F.

Now 29, he is a law student at the University of Connecticut, set to finish next spring. Then he would like to rejoin the military as soon as possible, saying yesterday that "my dream job" would be working in the Pentagon to end bias against gays.


Arguments denounced

The Circuit Court decision in his favor roundly denounced every legal argument the government has made to justify treating gays differently in the services, and even rejected some arguments the government had not offered. The court said Midshipman Steffan's discharge denied him his constitutional right to equality.

The discharge and the refusal to commission him as an ensign, the court said, were based solely on the simple fact that he said he is a homosexual, a sexual preference "untarnished by even a scintilla of misconduct," in the words of Chief Judge Abner J. Mikva.

The court used the most lenient constitutional formula for judging the Academy's discharge of Midshipman Steffan, and still struck it down. The Navy's action, the court declared, was ultimately based on little more than the military view that bTC non-gays in uniform will be "offended or angered" by having to serve with gays in the ranks.

"The Constitution does not allow government to subordinate a class of persons simply because others do not like them," the opinion concluded. "The government . . . cannot discriminate in an effort to avoid the effects of others' prejudices. Such discrimination plays directly into the hands of the bigots; it ratifies and encourages their prejudice."

The Circuit Court stressed that it was ruling only on military regulations that were in effect in 1987. A permanent, new compromise policy, due to go into effect soon, was worked out last summer by the White House and military and congressional leaders. Under that policy, gays are not automatically discharged, but still would be ousted for saying they are gay.


The "don't ask, don't tell" compromise policy does not differ greatly from the previous rules used against Midshipman Steffan.

Pentagon spokeswoman Kathleen deLaski said the court ruling was on "the old policy, so we believe it does not prevent us from proceeding with our gays-in-the-military implementation." The compromise policy is expected to be implemented after Congress formally ratifies it in a pending bill.

Among the Pentagon arguments the court rejected was a sweeping claim that the courts should leave the military alone and let it use its discretion as it sees fit in making personnel policy.

No 'military exception'

"A court need not close its eyes to the dictates of the Constitution whenever the military is involved," Judge Mikva wrote. "There is no 'military exception' to the Constitution." The Mikva opinion was supported in full by Circuit Judges Harry T. Edwards and Patricia M. Wald -- appointees of Democratic President Jimmy Carter.

Their ruling was a major defeat for another Democrat, President Clinton, who had vowed last year to do away with the military ban on gays, but altered his position when it caused a political furor.


Mr. Clinton had been in office less than ten days when a Los Angeles judge found the Pentagon's long-standing policy against gays unconstitutional and ordered the Navy to reinstate a gay sailor, Petty Officer V. Keith Meinhold.

Under every version of the gays policy, the military bars any gay who actually engages in homosexual conduct -- that is, has sex with a person of the same gender. The Circuit Court said yesterday "there is no dispute" that a ban on actual homosexual conduct is constitutional.

The Clinton administration, and administrations before it, however, have argued that a gay person also engages in forbidden "conduct" if he or she admits to being a homosexual and thus shows "a propensity" to engage in gay sex. That argument has been made to support the new policy as well as prior approaches.

The Circuit Court flatly rejected that argument, saying it is "illegitimate as a matter of law" because it operates on an assumption that sexual desire will lead to sexual "misconduct."