The administration is putting off a showdown on the constitutionality of the military's policy toward homosexuals but asked a federal court to reconsider its ruling in favor of a gay midshipman.

"You have to choose your fights," a senior Defense Department official said of the decision to contest the case of former Naval Academy midshipman Joseph Steffan on more narrow legal grounds.The Justice Department, on behalf of the Pentagon, filed a petition Thursday for rehearing the Nov. 16 decision of the U.S. Circuit Court of Appeals in Washington. The three-judge court held that the Pentagon's old policy on military service by homosexuals was unconstitutional and ordered that Steffan be granted a diploma from the Naval Academy and be commissioned as a naval officer.

The petition said the judges exceeded their authority by ordering the commission. It said that under the principle of separation of powers, only the president may appoint, and the Senate confirm, military officers.

The Pentagon expressed "profound disagreement" with the ruling that the old policy was unconstitutional but decided not to seek a rehearing on that aspect because the old policy has now been superseded by new regulations.

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The administration, after a year of struggling with Congress and the military over the ban on gays, earlier this month announced details of its "don't ask, don't tell, don't pursue" policy that retains the ban on homosexual activity but forbids unwarranted questions about a service member's sexual orientation.

"We have a new policy. That's where the energy should be directed," the Pentagon official, speaking on condition of anonymity, said in explaining the decision not to pursue the constitutional question now.

One of Steffan's attorneys, Evan Wolfson of the Lambda Defense & Education Fund, said: "We are disappointed by the government's petty effort to continue denying an outstanding midshipman his commission." He said Lambda, a gay legal rights organization, said he will soon file a court challenge to the new regulations on gays.

Steffan was a model student who in his junior year was selected commander of half his class.

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