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
HALL, Circuit Judge,
dissenting:
Before I explain why I would reverse the judgment of the district court, I must comment on the extended discussion of the military context of this case in the majority opinion.
I recognize that our duty in weighing the constitutionality of a statute is “ ‘grave[ ] and most delicate,’ ” and I do not propose to “ ‘lightly second-guess’ ” any decision of Congress or of the President. 1 Though the delicacy of the situation stems from the respect we owe the legislature and executive, the gravity inheres in our duty to defend the Constitution against the trespasses of those branches, no matter how carefully or pedantically they be constructed, and notwithstanding their popularity. The Founders gave us lifetime tenure to assure that we would not shrink from that duty. 2
Likewise, though raising the armies and commanding them are the exclusive tasks of the Congress and President, we have a role — a vital one — in ensuring that the military remains submissive to the Constitution and civil authority. We have now had a large standing army for half a century, and the Republic has endured. In the annals of history, our experience must be counted as the exception rather than the rule, and I am convinced that the presence of a strong and independent judiciary, upon which the people may rely to guard individual rights, deserves much of the credit for this good fortune. Freedom is not inherited; it is earned through eternal vigilance. The military is a sentinel in its way, and we in ours.
With that said, I must and do concede that the military is a unique society within a society. The discipline and self-sacrifice that characterize military service have little in common with the liberty and self-interest of civilian life, and rules of constitutional law designed for the latter must sometimes be tailored to the special needs of the military. 3 Those rules nonetheless apply; they must apply.
Implicit in the term “national defense” is the notion of defending those values and ideals which set this Nation apart. For almost two centuries, our country has taken singular pride in the democratic ideals enshrined in its Constitution.... It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties ... which makes the defense of the Nation worthwhile.
United States v. Robel, 389 U.S. 258, 264 , 88 S.Ct. 419, 424 , 19 L.Ed.2d 508 (1967). Aside from cheapening our national values, a broad “military exception” from the Constitution in the interest of defending us from foreign danger could transform the military into a domestic danger. Love of one’s own liberty is inborn; love of another’s must be learned. *950 Permitting disrespect of constitutional rights to flourish within the military would inevitably cause disrespect of them without it. Consequently, while I will defer, as I ought and must, to the professional judgment of military commanders on things military, I may never defer to their judgment on things constitutional.
I.
It is critical in this case to resist falling into discussion of generalities, as if each homosexual were a clone of some preening archetype. This case is about Lieutenant Paul Thomasson, and only him. The behavior of others is beside the point. Even without the challenged policy, some homosexuals would be unfit for military service, and some among them whose sexual misconduct were the root of their unfitness. The same, of course, can be said for heterosexuals. One need only to read the newspaper to know that the libidos of heterosexual American servicemen are not always restrained by military codes of conduct. But most are.
So, why was Lt. Paul Thomasson discharged?
It was not because of “conduct” in any ordinary sense of the word. To say his service record is “spotless” risks understatement; “sparkling” is a better choice. In his decade in the Navy, Lt. Thomasson rose through the ranks from ensign to full lieutenant. He has excelled in every task assigned him. In April 1991, he was chosen over numerous peers to be an intern to the Joint Chiefs of Staff at the Pentagon. He spent a year there, preparing briefings for Joint Chiefs Chairman Gen. Colin Powell and Secretary of Defense Richard Cheney, and he accompanied them to Congressional hearings on the military budget and force reductions. He was awarded the Joint Service Commendation Medal for “superlative performance” of that role, and, at the end of his internship, Gen. Powell thanked him in a personal letter for “contribut[ing] immeasurably” to the Joint Chiefs’ success. Thomasson closed his career in the service of Rear Admiral Albert Konetzni, who, ironically, was in charge of implementing the policy on homosexuality at issue here; nevertheless, Admiral Konetzni recommended him for immediate promotion to Lieutenant Commander on the very day of his discharge. 4
The performance coin has no other side: the Navy does not complain that Thomasson ever rendered middling, let alone deficient, service. Moreover, the Navy has no proof that Thomasson has engaged in sodomy or broken any other conduct rule, high or petty. Conduct cannot be the cause of his discharge.
Likewise, the discharge cannot be explained by Thomasson’s homosexual status per se. Under the policy, 5 homosexuals are expressly permitted to serve.
It is only because he has said that he is homosexual.
There is no difference between being and saying except that saying produces a reaction in others. The issue, then, is whether saying, and producing a reaction, is a ground for discharge that may constitutionally be applied to Lt. Thomasson. I believe that it is not.
II.
A classification violates equal protection if effecting an impermissible purpose was a (not the) motivating factor for the classification, because
*951 [r]arely can it be said that a legislature or administrative body operating under a broad mandate made a decision motivated solely by a single concern, or even that a particular purpose was the “dominant” or “primary” one.
Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 265 , 97 S.Ct. 555, 563 , 50 L.Ed.2d 450 (1977).
Private prejudice is a private matter; we are free to hate. But the same concept of liberty for all that protects our prejudices precludes their embodiment in law. “The Constitution cannot control such prejudices but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.” Palmore v. Sidoti, 466 U.S. 429, 433 , 104 S.Ct. 1879, 1882 , 80 L.Ed.2d 421 (1984). This rule applies even though the group targeted by the prejudice is not a “suspect” or “quasi-suspect” class for equal protection analysis. City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 448 , 105 S.Ct. 3249, 3258 , 87 L.Ed.2d 313 (1985) 6 Consequently, the desire to disadvantage a politically unpopular group is never a legitimate governmental interest. Id. at 447 , 105 S.Ct. at 3258 ; United States Dep’t of Agriculture v. Moreno 413 U.S. 528, 534 , 93 S.Ct. 2821, 2825 , 37 L.Ed.2d 782 (1973).
There is a great deal of evidence that the statute was motivated by a desire to accommodate prejudice against homosexuals. In announcing the policy, the President stated that “those who oppose lifting the ban are clearly focused not on the conduct of individual gay service members, but on how nongay service members feel about gays in general and, in particular, those in the military service.” Assistant Secretary of Defense Edwin Dorn testified that “much of the resistance to gays is grounded in fear and prejudice.” Retired Admiral Thomas Moorer, former Chairman of the Joint Chiefs of Staff, served on an advisory committee during development of the new policy. He was quite blunt about his views: homosexuals engage in “a filthy, disease-ridden practice,” are “inherently promiscuous,” and have no place in the military. He stated that many other “military people” share his views. Finally, Lt. General John Otjen, who chaired the Military Working Group, stated that “there’s a collective sense in the military ... that homosexuality is wrong.” Gen. Otjen believed that all members of the Military Working Group shared this “collective sense.” Moreover, he conceded that, but for fear of and prejudice against homosexuals, the policy would be unnecessary.
The evidence that prejudice against homosexuals is a purpose of “don’t ask, don’t tell” is therefore quite strong.
III.
A.
We are told, though, that tolerating this intolerance is essential to “unit cohesion.” Even if accommodating the supposedly widespread disdain for gays were a permissible governmental purpose — and it is not — there is no evidence that the discharge of Lt. Thomasson will rationally further that purpose. Indeed, there is only speculation that the discharge of any homosexual would do so.
Dr. Lawrence J. Korb, Assistant Secretary of Defense under President Reagan, offered this critique of the “unit cohesion” rationale:
There are at least three ... major problems with the “unit cohesion” argument. First, it represents a severe and somewhat defeatist underestimation of the ability of today’s servicemembers to keep their focus on professional military concerns; it also represents a uniquely curious (and, I believe, incorrect) admission that our soldiers and sailors could not effectively follow orders and do their jobs if we lifted the ban. Second, kowtowing to the prejudices of some by excluding others has never been an acceptable policy rationale, either in the military or in our society at large. And third, in the several units where acknowledged homosexuals are serving today (usu *952 ally, by court order), there are no signs of unit disintegration or bad morale.
General Otjen, while a strong supporter of the “unit cohesion” hypothesis, admitted that it was based on the personal views of members of the Military Working Group rather than hard facts. The lack of real evidence is not for lack of investigating. In 1992, the General Accounting Office investigated similar organizations that permit open homosexuality in their ranks, and, the next year, the Secretary of Defense commissioned a study of analogous organizations and foreign mili-taries by the Defense Research Institute of the RAND Corporation. Both studies reported no serious problems resulting from the presence of open homosexuals. See Able v. United States, 880 F.Supp. 968, 978 (E.D.N.Y.1995).
In any event, we have in the record before us a real homosexual, a real unit, and hence a real test of the “unit cohesion” hypothesis. Lieutenant Thomasson served for over fifteen months after admitting his homosexuality. His stellar job performance continued. There were in fact persons in his unit who disapproved of homosexuality, but they continued to do their duty and had no difficulty working with Lt. Thomasson. In fact, some were forced to question them preconceptions in light of Lt. Thomasson’s example. 7 Not a single sailor testified that he had suffered even mildly diminished morale.
B.
The actual experience in Thomasson’s unit should not surprise us. The ability of the American soldier to put duty before prejudice has been tested before.
“Unit cohesion” is a facile way for the ins to put a patina of rationality on their efforts to exclude the outs. The concept has therefore been a favorite of those who, through the years, have resisted the irresistible erosion of white male domination of the armed forces. Though the prejudices underlying such resistance have doubtless outlived the erosion, they have not manifested themselves in a loss of “unit cohesion.”
Race is the obvious example. “Don’t ask, don’t tell” was formulated when the chairman of the joint chiefs of staff was a black man, a black man whose presence in the otherwise all-white inner circle of our military caused no apparent friction or decay in its morale, performance, or cohesion. Likewise, I am enough of a realist to know that there are racists serving in our armed forces, racists to whom Gen. Powell’s high rank must have been distasteful. They did their duty anyway. Lest the irony escape anyone, consider the opinion of a committee, much like the Military Working Group behind “don’t ask, don’t tell,” that studied the proposed racial integration of the Navy in the 1940s:
Enlistment for general service implies that the individual may be sent anywhere, — to any ship or station where he is needed. Men on board ship live in particularly close association; in their messes, one man sits beside another; their hammocks or bunks are close together; in their common tasks they work side by side; and in particular tasks such as those of a gun’s crew, they form a closely knit, highly coordinated team. How many white men would choose, of their own accord, that their closest associates in sleeping quarters, at mess, and in a gun’s crew should be of another race? How many would accept such conditions, if required to do so, without resentment and just as a matter of course? The General Board believes that the answer is “Few, if any,” and further believes that if the issue were forced, there would be a lowering of contentment, teamwork and discipline in the service.
*953 Experience is the dread enemy of prejudice, and experience has routed the views of the General Board.
C.
Another incongruity of the “unit cohesion” hypothesis behind “don’t tell” is that it encourages lying in the interest of building and maintaining “bonds of trust” among the troops. A relationship built on deception is anything but a “bond of trust.” As the court observed in Able, 880 F.Supp. at 979 ,
[T]he court deems extraordinary ... the almost total lack of concern evidenced in the Congressional hearings and the Committee reports as to the impact on unit cohesion of the attempt to enforce secrecy on homosexuals and to enlist them in the perpetration of a hoax on heterosexuals. Common sense suggests that a policy of secrecy, indeed what might be called a policy of deception or dishonesty, will call unit cohesion into question.
... [HJeterosexuals and homosexuals alike would be entitled to think it demeaning and unworthy of a great nation to base a policy on pretense rather than truth.
The sad corollary of this “policy of pretense” is that moral courage like that displayed by Lt. Thomasson is punished.
IV.
The policy also operates in an unconstitutional manner. Its bedrock is a presumption that everyone will fail to comply with rules of conduct — a declared homosexual is bound to misbehave, and the members of his unit will doubtless allow private prejudice to override discipline. A presumption of misconduct from a person’s status, or even from his private prejudices, does not comport with due process.
An analogy offered by Lt. Thomasson at oral argument makes the point well. The Supreme Court has upheld the constitutionality of the military’s uniform regulations, notwithstanding that they bar the wearing of yarmulkes. Goldman v. Weinberger, 475 U.S. 503 , 106 S.Ct. 1310 , 89 L.Ed.2d 478 (1986). Now suppose a serviceman writes a letter to his superior stating, “I am an Orthodox Jew.” Has he broken the uniform regulations? Of course not. Should he be disciplined or discharged on account of his presumed “propensity” to wear a yarmulke? Of course not. Should he be discharged because his status and accompanying presumed propensity are presumed to stir up antiSemitism among the majority gentiles? Of course not. In America, we presume that individuals obey the rules until they prove otherwise. If persons do not obey rules with which they disagree, or are presumed to act upon every urge or desire whatever the legal consequences, then rules are a vain exercise indeed.
[MJost people obey the law even when they disapprove of it. This obedience may reflect a generalized respect for legality or the fear of prosecution, but for whatever reason, the law’s prohibitions are matters of consequence.
Jacobson v. United States, 503 U.S. 540, 551 , 112 S.Ct. 1535, 1541 , 118 L.Ed.2d 174 (1992). See also Powell v. Texas, 392 U.S. 514, 543 , 88 S.Ct. 2145, 2159 , 20 L.Ed.2d 1254 (1968) (Black, J., concurring) (“Punishment for a status is particularly obnoxious ...; the mental element is not simply part of the crime but may constitute all of it.”) Cf. Robel, 389 U.S. at 262-71 , 88 S.Ct. at 423-428 (member of Communist Party could not be presumed to have the specific intent to further its unlawful goals).
V.
The intolerability of a presumption of misconduct from a status renders irrelevant the majority’s unremarkable holding that the First Amendment does not bar the evidentia-ry use of an “admission.” Of course it does not. But Thomasson did not “admit” anything that could justify his discharge. He said, “I am gay.” Let us take that as admitted. “A member’s sexual orientation is considered a personal and private matter, and is not a bar to continued service ... unless manifested by homosexual conduct....” 8 *954 Thomasson has not “admitted” any homosexual conduct.
The rejoinder, of course, is that the statute and policy define speech as “conduct.” This definition fails to withstand constitutional scrutiny, for two reasons. First, as I have already discussed, it impermissibly presumes that homosexuals are unable to obey rules of conduct. Second, it creates a classification among homosexuals based solely on speech. Because there is no reason even to “rationally speculate” 9 that declared homosexuals are more likely to break the rules than undeclared — the opposite speculation seems far more accurate — this rule must be targeted at suppressing the speech itself. 10 Here we meet up with the First Amendment, but on much different ground than the majority tackles it.
Suppressing speech is “grave[ ] and most delicate” stuff. The military has a broader power to control speech than a civilian government, Brown v. Glines, 444 U.S. 348 , 100 S.Ct. 594 , 62 L.Ed.2d 540 (1980), but even there the power is exceedingly narrow: speech may be suppressed only if it is likely to interfere with vital prerequisites to military effectiveness. Id. at 354 , 100 S.Ct. at 599 . The “vital prerequisite” here is, I suppose, the accommodation of the prejudices of heterosexual servicemen. I very much doubt that such accommodation — never a legitimate legislative end — can ever be a “vital prerequisite” to the military’s mission. In any event, Lt. Thomasson has proved beyond any doubt that his speech had no deleterious impact at all, let alone to some “vital prerequisite” to military effectiveness. If anything, the expulsion of a fine officer in retaliation for his speech will ultimately prove worse for the Navy.
VI.
Lt. Paul Thomasson has been declared unfit to defend our country based on- nothing more than an expression of his state of mind. The expression was not illegal, and the fact admitted is not a ground for discharge. His record of service is superb, and the Navy presented absolutely no evidence that he has violated any military rule of conduct in any way at any time, and absolutely no evidence that his exemplary record is not indicative of his likely future behavior.
Lt. Paul Thomasson’s career is over because it is presumed that he will misbehave in a manner that is assumed to incite the prejudices of his colleagues, whom it is speculated will abandon their duties to defend the United States rather than tolerate him in their midst. There is no proof of any of these hypotheses in the record, and there is abundant disproof. In the final analysis, the expression of Lt. Thomasson’s thoughts, without more, is the cause of his “honorable” banishment from .the Navy..
“I think we must let his mind alone.” 11
I dissent.
Judges ERVIN, MICHAEL and MOTZ join in this dissent.
. See supra at 923 (quoting Blodgett v. Holden, 275 U.S. 142, 148 , 48 S.Ct. 105, 107 , 72 L.Ed. 206 (1927) (opinion of Holmes, J.), and Board of Educ. of Westside Community Schools v. Mergens, 496 U.S. 226, 251 , 110 S.Ct. 2356, 2372 , 110 L.Ed.2d 191 (1990)).
. As Alexander Hamilton argued at the time:
Considerate men of every description ought to prize whatever will tend to beget or fortify that temper [independence] in the courts; as no man can be sure that he may not be tomorrow the victim of a spirit of injustice, by which he may be a gainer today
That inflexible and uniform adherence to the rights of the Constitution, and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission.
Federalist No. 78 (Hamilton), at 470-471 (Rossi-ter ed.1961).
.E.g., Brown v. Glines, 444 U.S. 348, 354 , 100 S.Ct. 594, 599 , 62 L.Ed.2d 540 (1980) (permitting restrictions on speech likely to interfere with vital prerequisites t.o military effectiveness).
. The high esteem reflected by this recommendation was nothing new. In 1990, Commander T.M. Feelcs noted that Thomasson "routinely outperforms many lieutenant commanders." In 1992, Air Force Brigadier General C.V. Jones of the Joint Chiefs of Staff, who had directly supervised Thomasson during his internship, reported that "he is ready now for promotion to Lieutenant Commander." Rear Admiral Alexander Kre-kich, who shared supervisory responsibilities with Gen. Jones, concurred in this recommendation. Adm. Krekich described Thomasson as “a super star- — one of the Navy's future leaders" and as "the top intern among a group of superlative junior officers.” He concluded, "I would personally seek out to serve with me again! Outstanding 'Flag lieutenant’ & 3 or 4 star material. Groom early.” I could go on and on, inasmuch as the effusive tone of this praise pervades Thom-asson’s entire service record.
. The policy explicitly states that "homosexual orientation is not a bar” to "service entry or continued service.” Department of Defense Directive 1332.30 at 2-1 para. C (March 4, 1994).
. It is not necessary, therefore, to decide here whether homosexuals are a suspect or quasi-suspect class.
. The views of Yeoman Third Class John J. Broughton arc typical:
At first [after Thomasson’s disclosure], I was shocked and did not know whether or not to back out [of a volunteer assignment to work with Thomasson] and work in my old office. I did not know whether I could work with a homosexual. I decided to stick with the decision I made prior to knowing of LT Thomas-son’s disclosure. I am glad I did. The knowledge I have gained ... from LT Thomasson is invaluable_ He was always professional towards me. LT Thomassonf] in my opinion, is the best "LT” in the Navy.... His sexual orientation had no adverse effect on myself or to the Navy. With so few good naval officers, the Navy should definitely keep LT PAUL THOMASSON.
. Directive 1332.30, para. C.
. See Heller v. Doe, 509 U.S. 312, 318-20 , 113 S.Ct. 2637, 2642 , 125 L.Ed.2d 257 (1993) (stating constitutional minimum. for legislative findings underlying a classification).
. Hence, the popular label for this prong of the policy — "don't tell” — is quite accurate.
. American Communications Ass’n v. Douds, 339 U.S. 382, 444 , 70 S.Ct. 674, 706 , 94 L.Ed. 925 (1950) (Jackson, J., concurring and dissenting).