stating that “the human sexual drive is enormously powerful and that an open declaration that one is a homosexual is a rather reliable indicator as to the direction of one’s [sex] drive.”
How later courts described this case
- stating that “the human sexual drive is enormously powerful and that an open declaration that one is a homosexual is a rather reliable indicator as to the direction of one’s [sex] drive.”
- evaluating a rational-basis, equal protection challenge to a DOD directive that prohibits homosexuals from serving in the Navy, and observing that “where ... a statute or regulation has some concededly constitutional applications, a successful challenger must demonstrate that the statute is unconstitutional as ‘applied to the particular facts of [his] case.’ ”
- following Padula v. Webster, 822 F.2d 97, 103 (D.C.Cir.1987) (“It would be quite anomalous, on its face, to declare status defined by conduct that states may constitutionally criminalize as deserving of strict scrutiny under the equal protection clause")
- recognizing the highly deferential standard set forth in Goldman and that “even the First Amendment must yield at times to the exigencies of military life”
Written by the judges who cited it.
The opinion
BUCKLEY, Circuit Judge,
with whom Circuit Judge RANDOLPH joins, concurring in part:
I agree with the court’s analysis in every respect but one. I cannot concur in its holding, in part III.B., that Steffan lacked standing “to bring his particular challenge to the DOD Directives.”
In his complaint, Steffan acknowledges what he describes as his “homosexual orientation,” notes that there was “no allegation [in the proceedings before the Brigade Performance Board] that [he] had committed any homosexual acts or conduct,” and alleges that his forced separation from the Naval Academy was “predicated solely on [his] sexual orientation” and on laws and regulations that he considers unconstitutional because, among other things, they “punish[ ] his thoughts, speech and status, as opposed to his conduct.” Complaint, ¶¶ 17, 22, 30, & 34. Fairly construed, these allegations amount to a claim that Steffan suffered an injury directly caused by allegedly unconstitutional regulations.
It seems to me that this is sufficient to open the door to the courthouse. Once inside, of course, it was incumbent on Steffan to offer evidence to support his contention that he was required to resign based on his thoughts (or “desires”) rather than on the inferences as to his conduct and intentions that the Board was entitled to draw from the statement, “I am a homosexual.” To say that he failed to prove his contention is surely not to say that he lacked standing to make the attempt.