Military Can Oust Gays, Court Rules : Pentagon: Federal panel says admission of homosexuality is grounds for dismissal. Case involved Navy’s move to discharge a cadet.

In a setback for gay-rights activists, a federal appeals court ruled Tuesday that the Constitution does not bar the military from discharging a serviceman simply because he admits that he is a homosexual.

In their legal challenges to the Pentagon’s ban on gays in the ranks, gay-rights lawyers have contended that the government cannot punish persons solely because of their “status,” or sexual orientation.

But on a 7-3 vote, the judges of the U.S. Court of Appeal for the District of Columbia rejected that argument, and ruled that a serviceman’s admission that he is gay is, for all practical purposes, the same as admitting he has engaged and will continue to engage in homosexual acts.

“The military may reasonably assume that, when a (service) member states that he is a homosexual, that member means that he either engages or is likely to engage in homosexual conduct,” wrote Judge Lawrence H. Silberman.

The decision upholds the Navy’s move to discharge Joseph C. Steffan, a midshipman at Annapolis who had a stellar record but admitted in 1987 that he is gay.

Since then, lawyers for gay-rights groups have fought his discharge as a test case challenging the Pentagon’s discriminatory policy.

Beatrice Dorhn, legal director for the Lambda Legal Defense Fund in New York, said that the new ruling in Steffan’s case is “obviously disappointing” because it endorses a policy that “subjects gay and non-gay service members to completely different rules.”

She said that her organization has not decided whether to appeal to the Supreme Court.

If nothing else, Tuesday’s ruling demonstrates again that gay-rights activists have an uphill fight in challenging as unconstitutional the military’s ban on admitted gays.

None of the federal judges who have ruled on this issue has concluded that gays deserve special protection under the Constitution, similar to blacks, Latinos or women.

The judges have split, however, on whether it is “rational” to discharge gays based on the mere admission of their sexual orientation.

The generally liberal U.S. 9th Circuit Court of Appeals in San Francisco has taken the view that it is unfair and irrational to punish gays or lesbians who do nothing more than acknowledge their orientation. In August, a three-judge panel of the 9th Circuit upheld an order requiring the Navy to reinstate Keith Meinhold, a sailor who admitted his homosexuality on a TV show.

Since the military does not make “the assumption” that heterosexual members of the military will engage in prohibited acts such as adultery or sodomy, it should not make the automatic assumption that gays will engage in prohibited homosexual acts, Judge Pamela Rymer said.

The more conservative appeals court in Washington dismissed that view. “The government’s presumption is certainly rational given that the human sexual drive is enormously powerful and that an open declaration that one is a homosexual is a rather reliable indication as to the direction of one’s drive,” wrote Silberman, an outspoken conservative and an appointee of President Ronald Reagan.

Last year, a panel of the same court ruled for Steffan in an opinion authored by then-Chief Judge Abner J. Mikva, now White House counsel to President Clinton. The dissenters Tuesday were Judges Patricia M. Wald and Harry Edwards, both of whom were appointed by President Jimmy Carter, and Judge Judith Rogers, a Clinton appointee.