The Clinton Administration sought a rehearing Thursday of a court order to commission gay midshipman Joseph Steffan, but as expected sidestepped the larger battle over whether banning gays from the military is constitutional.
The Justice Department, filing the petition on behalf of the Defense Department, focused instead on the narrower issue of whether the U.S. Circuit Court of Appeals in Washington exceeded its authority in ruling that Steffan be given his Naval Academy diploma and commissioned as an officer.
The court, it said, raised “the gravest legal questions” in regard to the principle of separation of powers that holds that military officers must be appointed by the President and approved by the Senate.
The three federal judges on Nov. 16 ruled that expelling Steffan solely on the basis of his sexual orientation violated the equal protection guarantee of the Constitution.
The government petition expresses the Pentagon’s “profound disagreement” with the opinion.