Lawyers Cite Sexual Slur, Want Judge Off Cadet Case : Courts: Gay man is suing U.S. Naval Academy over dismissal. Jurist twice referred to him during proceedings as a 'homo.'

TIMES STAFF WRITER

Attorneys for a Minnesota man who was dismissed from the U.S. Naval Academy because of his homosexuality are expected this week to seek disqualification of a veteran federal judge who twice referred to the cadet as a "homo" during a court hearing.

In a three-year court battle, Midshipman Joseph C. Steffan, 26, has been trying to overturn an old Defense Department regulation stating that "homosexuality is incompatible with military service."

According to an official court transcript, U.S. District Judge Oliver Gasch said during a hearing in his Washington courtroom last Wednesday that he was inclined to deny a motion by Steffan's lawyers to obtain access to Pentagon studies about homosexuals in the military.

The judge, who is presiding over Steffan's challenge of his dismissal, called the request for the studies "overburdensome," adding: "The most I would allow is what relates to this plaintiff, not every homo that may be walking the face of the earth at this time."

Later, Gasch said Steffan was "not eligible to continue as a student" at the Naval Academy in Annapolis, Md.

When Marc Wolinsky, his lead counsel, contested that assertion as "an issue of fact" based on Steffan's sworn statements, Gasch replied:

"That he's a homo and knows other homos, is that it?"

Wolinsky said Steffan never had admitted nor been accused of any homosexual conduct at the academy, but simply had acknowledged that he was homosexual by orientation. He did so because the academy's honor system required midshipmen to respond truthfully to questions, his lawyers said.

An associate of Steffan said the attorneys probably would seek Gasch's removal from the case on grounds of bias or insensitivity.

Another of Steffan's lawyers, Sandra J. Lowe of the Lambda Legal Defense and Educational Fund in New York, called the judge's remarks "chilling."

"They absolutely made the hearing come to a standstill," Lowe said.

Legal authorities said Gasch's references may have violated the Code of Judicial Conduct of the American Bar Assn., which prohibits judges from making remarks that "manifest bias or prejudice."

The judge, reached for comment at his residence Saturday, said he had no regrets about his remarks.

"No, the man said he was a homosexual. I referred to him as a homo. That's about all there was to it," the judge said.

He declined further comment.

Gasch, who once served as president of the American Bar Assn., was appointed to the bench in 1965 by President Lyndon B. Johnson. He holds the title of "senior judge."

Steffan was forced to resign from the academy in May, 1987, only weeks before graduation. One of the school's top 10 seniors and commander of a battalion of 800 cadets, he said he lost everything he had worked for during four rigorous years--a degree from Annapolis and commissioned officer status.

"If I had lied (about being homosexual), I would be an officer aboard a nuclear submarine now," he told a reporter earlier this year. "But I responded truthfully. I didn't regret that decision then, and I don't now. I respected myself too much to hide."

He filed a lawsuit the following year, demanding that Defense Department policy be declared unconstitutional, that Annapolis award him his diploma and that he be reinstated in the Navy.

In late 1989, Gasch dismissed Steffan's case after he refused to answer more detailed questions in a deposition with Navy lawyers about his sexual activity.

Steffan's lawyers argued on appeal that Gasch had no right to try to force him to answer such questions. The appellate court agreed, concluding that because sexual conduct was not an issue in the dismissal action, it could not become an issue in his subsequent challenge of military policy. The appellate judges sent the case back to Gasch for trial, which is where the matter still rests.

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