Administration Slow to Pick Gays-in-Service Case to Defend

The Supreme Court eventually will decide the dispute over gays in the military, but lawyers on both sides of the issue say they expect a decision will come later rather than sooner.

In recent weeks, Clinton Administration lawyers have signaled that they do not want to contest cases begun under the previous Pentagon policy that demanded a total ban on homosexuals.

Instead, the Administration apparently prefers to wait for a test case of the new Pentagon policy, which takes effect this month. That policy can be more easily defended in court, government attorneys say, because it is based on conduct, rather than on evidence or indications of sexual orientation.

According to the new policy, “homosexual conduct is grounds for separation,” but “sexual orientation is considered a personal and private matter . . . unless (it) is manifested by homosexual conduct.”

Since this represents a distinct change, the Justice Department told a federal appeals court in Washington that it is “not seeking further review” of a November ruling by a three-judge panel that declared unconstitutional the Navy’s refusal to commission midshipman Joseph C. Steffan. Officials at Annapolis had dismissed Steffan in 1987 solely because he had acknowledged he was gay.

Steffan’s lawsuit and that of Petty Officer Keith Meinhold in California have been seen as the leading test cases of the Pentagon’s policy of excluding gays. Both men had won rulings declaring the ban unconstitutional, which could have cleared the way for an early Supreme Court test.

But the Administration’s strategy is likely to delay such a showdown for at least another year.

And like the government attorneys, gay-rights legal strategists are not seeking a speedy Supreme Court decision on the issue.

BACKGROUND: The Supreme Court has never ruled squarely on whether government discrimination based on sexual orientation violates the constitutional guarantee of “equal protection of the laws.” But over the years, the justices have repeatedly refused to hear appeals from gays who were discharged from the military.

Traditionally, the high court defers to the wishes of the military and rarely intervenes, even when individuals say that their constitutional rights were violated.

For that reason, gay rights advocates have never been confident that they would win in the Supreme Court in a direct challenge to the Pentagon’s ban on gays.

But the justices may be more inclined to outlaw anti-gay bias in other areas. A test could come soon if the Colorado attorney general asks the high court to reinstate a state constitutional amendment banning ordinances that deal with sexual orientation.

State judges have ruled that the amendment violates the U.S. Constitution by limiting the rights of gays to participate in the political process. If the Supreme Court were to affirm that judgment, gay-rights lawyers think it could provide a useful precedent in a variety of cases, including the showdown over gays in the military.

NEXT STEP: Two federal appeals courts will issue rulings soon in pending cases involving gay servicemen, but neither is likely to be reviewed by the Supreme Court.

On Dec. 16, the U.S. 9th Circuit Court of Appeals in San Francisco heard arguments in Meinhold’s suit. After acknowledging that he is gay, Meinhold was kicked out of the Navy, but U.S. District Judge Terry J. Hatter Jr. in Los Angeles ruled the action unconstitutional. The 9th Circuit Court will rule on the government’s appeal.

Similarly, the conservative majority of the U.S. Court of Appeals here announced last month that it will reconsider the entire Steffan case, even though the government had asked for a review on narrow legal grounds only--avoiding the larger question of whether the military ban was constitutional.

Gay rights lawyers say they will file a new lawsuit this month, known tentatively as Doe vs. Aspin, which will challenge the new policy. That suit, on behalf of several individuals, is likely to take many months to move up through the court system.