Four other courts this year have invalidated the old Pentagon rules. But the decision last week reinstating midshipman Joseph Steffan was more significant, because of both the appeals court’s prestige and its sweeping language. “The government cannot discriminate against a certain class in order to give effect to the prejudice of others,” wrote Chief Judge Abner Mikva for the court. “Even if the government does not itself act out of prejudice, it cannot discriminate in an effort to avoid the effects of others’ prejudice. Such discrimination plays directly into the hands of the bigots.” Mikva, along with concurring judges Harry Edwards and Patricia Wald, are among the most liberal jurists in the nation, all appointed by Jimmy Carter. So their opinion may hardly be the last word. Yet it still puts the administration in a political bind about what to do next.
The Justice Department could appeal to the full nine-member appeals court in Washington, which rarely agrees to reconsider panel decisions. Or it could ask the Supreme Court to hear the case next year. If the justices did, most prognosticators predict a reversal, given the court’s traditional deference to military policies and its unsympathetic view of constitutional rights for homosexuals. In 1986, the justices said it was “facetious” to suggest that two gay men engaging in sodomy in their own home were entitled to privacy under the Constitution. A Supreme Court defeat might cost Clinton with gay activists. “They could set back the cause for gays and lesbians in the military for years,” says Kevin Cathcart, cocounsel in the Steffan case. “Is that what this administration wants?” The cleverest approach for the administration might be to do nothing. The rationale: the Steffan decision applies only to the old policy, which is history, so why waste more judicial time? That would save the administration any further embarrassment, as well as leave on the books a judicial sentiment that Clinton agrees with.
The ruling orders that Steffan, 29, be graduated from the Naval Academy and commissioned as a junior-grade lieutenant. He was expelled from Annapolis in 1987 and is now finishing law school at the University of Connecticut. Steffan says that he intends to pursue the military career he planned long ago. He even has a job in mind. “There are naval lawyers in the judge advocate general’s corps,” he says. There sure are–and in the past they’ve had to litigate the dismissals of homosexuals. If Joseph Steffan winds up there, his legal saga would have the most ironic of endings.
