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GAY PEOPLE'S CHRONICLE MAY 20, 1994
Full circuit court hears Steffan case
Continued from Page 1
lations contained a "rebuttable presumption"-that a person is entitled to try to prove he or she won't engage in gay or lesbian sex.
"There is no case where the presumption was rebutted," Wolinsky said.
Chief Judge Abner J. Mikva, who wrote last November's decision, said that the government appeared to have shifted its case. "I don't think the word 'propensity' came up" when the case was first argued before the Appeals Court, he said.
Judge Harry T. Edwards said the government had “blind-sided” the court by raising this new argument.
Several of the 11 judges voiced confusion over the government's assumption that desire equals intent.
What if a midshipman has dreams in which he "plays a homosexual protagonist?" asked Judge Laurence H. Silberman. Does that mean the midshipman has gay desires?
Wolinsky said he thought the standard only applied to waking fantasies.
What if a person has such waking fantasies? Silberman later asked.
"Did you enjoy the fantasies?" Judge Patricia M. Wald asked, to laughter and applause.
Judge A. Raymond Randolph appeared to have less trouble with the government's argument. He raised the possibility of a CIA employee who says he's a communist but won't act on his beliefs. “Why aren't thoughts in themselves sufficient" grounds for dismissal? he asked.
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If Steffan had said he was gay but swore to abstain from sex for his entire service, Mikva asked, "Can you tell me that a reasonable person can read that to believe he has rebutted the presumption?"
If he convinced the discharge board, Levy replied.
Wald pointed out that people often act against their propensities. For example, she said, most people obey the law even when they don't agree with it.
"Why can we have a separate policy based on presuming they will break the law?" she asked.
In November, a three-judge appeals panel ruled that the Navy's ban on declared lesbians and gays was unconstitutional.
"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 the majority, a preference untarnished by even a scintilla of misconduct," Circuit Chief Judge Abner Mikva wrote for the panel.
The Clinton administration filed an appeal in December asserting only that the judges exceeded their authority in ordering the Pentagon to commission Steffan. It did not challenge the rest of the ruling.
But the appeals court said a member of the court-who was not identified-proposed that the entire case be reheard. A majority agreed.
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Austin loses partner benefits
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gious right against lesbians and gays.
City Council had adopted the policy in September, making Austin the first Texas city to offer benefits to domestic partners. About 25 other cities and numerous corporations nationwide have similar programs.
Ninety-eight employees had signed up for partner benefits-69 registering an opposite-sex partner and 29 enrolling a samesex partner. The benefits would have cost the city about $130,000 this year.
The policy demonstrated Austin's ideological distance from the rest of Texas. Just outside of Austin in Williamson County, for example, county commissioners rejected a tax break for a new $80 million Apple Computer Inc. center because the company gives benefits to lesbian and gay domestic partners of its employees. When Apple
threatened to pull out, the commissioners compromised and gave Apple other financial incentives instead of tax breaks.
Bullock said voters also disliked the cost of Austin's program. But others said it would have saved money in the long run by making preventive care available and by keeping uninsured patients out of expensive emergency rooms.
Shelton said she and her partner are due for minor surgery later this month. But instead of insurance paying the cost, she said, the surgery will now be performed at a taxpayer-funded clinic.
Hugh Strange, a spokesman for the Mainstream Austin Coalition, which led the fight to preserve the health benefits, hoped the defeat would galvanize the city's progressive community.
"This is one battle in a continuing war," he said. "We're going to have to meet them again and again.”
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