U.S. to Appeal Ruling Against Military Gay Ban

The Clinton Administration plans to file a narrow legal appeal today to a court ruling that threw out the U.S. military’s longstanding ban on homosexuals, sidestepping the larger issue of whether the prohibition is constitutional, an Administration source said Wednesday.

The Justice Department and the Pentagon have agreed to a strategy under which the government will argue that a federal court had no constitutional authority to order that U.S. Naval Academy midshipman Joseph Steffan receive a commission as an officer. Steffan resigned from the Academy when a disciplinary board gave him a failing grade after he admitted under questioning that he was gay.

But the Administration apparently will not contest the two other elements of the ruling by a three-judge panel of the U.S. Circuit Court of Appeals here: that Steffan should be reinstated and that he should receive a Naval Academy diploma.

The Administration’s strategy borrows from both sides of the gays-in-the-military debate. Military leaders want the court ruling appealed, and gay-rights advocates oppose the military ban.

By limiting the scope of its appeal, the Administration also avoids a full-scale legal clash over the basic elements of the military ban, which was relaxed under new regulations issued last week.

The new regulations still allow the military to dismiss homosexuals, but they forbid the military from asking new service members about their sexual orientation and they sharply limit the power of military commanders to investigate reports that individual service members are homosexuals. Gay-rights activists have vowed to challenge the new regulations in court.

By avoiding the larger legal questions, the Administration is “saving its ammunition to defend the new policy” instead of “fighting old battles,” the Administration source said. The appeal will make it clear, however, that the Administration does not agree with the court’s decision, the source said.

In ruling in the Steffan case last month, the Circuit Court panel went further than any other U.S. court has in overturning the old military ban. Steffan was about to graduate from the Naval Academy in 1987 with numerous honors and a ranking among the top 10 midshipmen in his class, when an Academy disciplinary board changed the grade of his performance from an ‘A’ to an ‘F’ after he admitted he was gay.

Steffan resigned and filed a lawsuit.

The Administration’s appeal will argue the limited legal point that under the Constitution, the power to appoint military officers is held by the President, with approval by the Senate, and that the court overstepped its constitutional authority by ordering the military to commission Steffan as an officer.

“The bottom line is that we can’t do what the court ordered us to do,” the source said.

The appeal will ask the full Circuit Court to review the Steffan case. The three judges who issued the original ruling, who were selected at random to hear Steffan’s lawsuit, were appointed by former President Jimmy Carter and are the only Democrats on the court. The other members were appointed by former Republican presidents Ronald Reagan and George Bush.

An attorney for Steffan expressed disappointment over the planned appeal.

“It’s very clear that the President and the Congress are governed by the Constitution, and the courts have the power to remedy discrimination,” said Evan Wolfson, a senior attorney for the Lambda Legal Defense and Education Fund, a gay-rights organization.

“They’re not disputing the court’s ruling that it is unconstitutional,” but instead are arguing that “the court has no power to rectify the wrong done to Joe,” Wolfson said. “So once again they’re trying to give the military some special exemption from the Constitution.”

Steffan, 29, is now a third-year law student at the University of Connecticut. His case is one of five in Washington and California in which district court judges have dismissed elements of the ban on gays in the military as unconstitutional.