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
GINSBURG, Circuit Judge,
concurring in part, dissenting in part and concurring in the judgment:
The Supreme Court has held time and again that “[t]he judicial power of the United States defined by Art. Ill is not an unconditional authority to determine the constitutionality of legislative or executive acts.” Valley Forge Christian College v. Americans United For Separation of Church and State, 454 U.S. 464, 471 , 102 S.Ct. 752, 758 , 70 L.Ed.2d 700 (1982). Hence, a federal court must decide the controversy presented to it and only that controversy. Cf. Broadrick v. Oklahoma, 413 U.S. 601, 610-11 , 93 S.Ct. 2908, 2915 , 37 L.Ed.2d 830 (“[Ujnder our constitutional system courts are not roving commissions assigned to pass judgment on the validity of the Nation’s laws”).
As this case comes to us on appeal, Joseph Steffan challenges only the constitutionality of the Department of Defense Directives promulgated in 1991. Steffan clearly states in his brief that his complaint is that he “was discharged from the [Naval] Academy pursuant to servicewide regulations promulgated in 1981 as part of Department of Defense Directives 1332.14 and 1332.20.” Because Steffan does not challenge the Academy’s own separate regulation concerning homosexuality, I do not believe that the court should address that regulation, much less render a constitutional decision concerning it.
The constitutionality of the Academy’s regulation is an important question that ought not be addressed until a litigant who actually claims to have been injured by its application comes before the court. As he has framed *701 his arguments before this court, Steffan is not such a litigant. Because the court nonetheless reaches out to decide that question, it renders what is, in essence, an advisory opinion. I therefore dissent from Part II of the court’s opinion.
Insofar as Steffan has brought before the court his attack upon the constitutionality of the DOD directives, I agree with Judge Sil-berman that Steffan does not have standing to sue and that he may not bring a facial challenge to those regulations. I therefore join in Part III.B of Judge Silberman’s opinion and concur in the judgment of the court.
Dissenting opinion filed by Circuit Judge WALD, with whom Chief Judge EDWARDS and Circuit Judge ROGERS join.