recounting the history of the enactment of § 654 and concluding that “[w]hat [the plaintiff] challenges, therefore, is a statute that embodies the exhaustive efforts of the democratically accountable branches of American government and an enactment that reflects month upon month of political negotiation and deliberation”
How later courts described this case
- recounting the history of the enactment of § 654 and concluding that “[w]hat [the plaintiff] challenges, therefore, is a statute that embodies the exhaustive efforts of the democratically accountable branches of American government and an enactment that reflects month upon month of political negotiation and deliberation”
- agreeing with plaintiff that the purpose of Congress in passing the Act was to mandate exclusion of all known homosexuals based on their orientation or status “regardless of whether they have actually engaged in homosexual conduct or are likely to engage in any such conduct”
- acknowledging the position of both parties that "the question of the validity of the regulation is not before us,” and asserting nonetheless that "I would simply invalidate the Administration's regulation as in excess of its statutory authority”
- holding that § 654(b)(2) does not violate the Fifth Amendment’s rights to equal protection and substantive due process or the First Amendment’s right to free speech
Written by the judges who cited it.
The opinion
MURNAGHAN, Circuit Judge,
concurring:
I concur. Because an extended discussion of judicial deference to the military is unnecessary, I would dispose of the matter much more simply. The case concerns a rebutta-ble presumption which Thomasson did not rebut. Whether the employer was a military or nonmilitary body, it is enough that the presumption used is rational and thus constitutional.