Conduct Unbecoming?

By Jill Smolowe

Few midshipmen at Annapolis shone as brightly as Joseph Steffan. He not only ranked among the top 10 in his class at the U.S. Naval Academy in 1987 but as a battalion commander, had under his command one-sixth of the school's students. Then, just six weeks before graduation, Steffan told a fellow midshipman that he was gay. Although there was no evidence that Steffan had ever engaged in a homosexual act, a disciplinary board determined that his sexual orientation was reason enough for discharge. Academy officials downgraded Steffan's military performance from A to F, and Steffan was forced to resign.

Last week a federal appeals court rearranged that report card: Steffan got an A; the military got an F. After concluding that Steffan's constitutional rights had been violated, a three-judge panel ordered that the 29-year-old former midshipman be granted a diploma and commissioned as a second lieutenant. As for the military's aversion to gays, the panel offered a rebuke so stinging that there is question whether the Pentagon's new policy of "Don't ask, don't tell" will be able to withstand constitutional scrutiny. "America's hallmark has been to judge people by what they do, and not by who they are," wrote Chief Judge Abner Mikva. "It is fundamentally unjust to abort a most promising military career solely because of a truthful confession of a sexual preference different from that of a majority, a preference untarnished by even a scintilla of misconduct."

As Steffan enjoyed his sweet vindication, the new policy toward gays, folded into Congress's proposed $261 billion military budget, reached the Oval Office for the President's signature. Caught off guard by the court's verdict, Pentagon spokeswoman Kathleen DeLaski insisted that the "Don't ask, don't tell" policy was still on track because the Steffan decision applied to the old 1982 policy, which in effect warns gays, "Don't even think about it." But White House spokeswoman Dee Dee Myers vaguely allowed that the ruling does have implications for the new policy.

Gay advocates, now including prestigious law firms, are determined to prove Myers right. Steffan's case, which the Pentagon can appeal, is just one of 50 wending their way through the court system in hopes of upsetting the Pentagon policy. They variously attack the policy as violating the due-process, equal- protection and free-speech rights of gay soldiers. As a collective challenge, the cases seek to remove gay rights from the political arena and force a judicial review by the Supreme Court. The strategy is evocative of the civil-rights struggle, which in the 1950s turned to the Supreme Court to rectify racial injustices.

More and more, the courts are being prodded to legitimize a sea change in societal norms that legislators have refused to recognize. One day after the Steffan decision, a New York court ordered the state university's law school in Buffalo to halt campus interviews by military recruiters, because, said Judge Diane Lebedeff, "there is no dispute the military currently engages in sexual-orientation discrimination in its employment practices." With two such clear strikes against the Pentagon's practices, it is only a matter of time before the Supreme Court takes up the issue.

With reporting by Bruce van Voorst/Washington