Petition for Writ of Certiorari — Ben-Shalom v. Stone

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Supreme Court, US.

FILED

DEC 4 1989

_No. JOSEPH F, SPANIOL, JR,

CLERK

In the a

SUPREME COURT OF THE UNITED STATES

October Term, 1989

MIRIAM BEN-SHALOM,

Petitioner,

JOHN O. MARSH, JR., Secretary

of the Army, VANCE COLEMAN,

Commanding Officer, H.Q. 84th

Division, U.S. Army Reserve,

and JOHN ALLEN, Lt. Colonel,

Commanding Officer, 509lst U.S.

Army Reception,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

PATRICK T. BERIGAN

Counsel of Record for

the Petitioner

ROBERT C. ANGERMEIER

ANGERMEIER & ROGERS

625 N. Milwaukee St.

Suite 404

Milwaukee, WI 53202

(414) 289-9200

QUESTIONS PRESENTED

l. Whether there is a rational basis to

deny reenlistment in the military to an

individual, admitted by the respondents

to be an excellent soldier, solely

because of her homosexual orientation,

even though there is no evidence of any

type of misconduct.

2. Whether military regulations, which

mandate denial of reenlistment to those

individuals who admit to homosexual

orientation but have never been found to

have committed a homosexual act, unreas-

onably chills freedom of speech.

3. Whether individuals of homosexual

orientation are members of a group which

is entitled to strict scrutiny under

equal protection anaylsis.

4. Whether the respondents' decision to

deny reenlistment to those of homosexual

orientation, even though there is no

evidence of misconduct, should be granted

broad discretion by the court.

TABLE OF CONTENTS

Table of Authorities. .....-eeeeeeeees

Opinions BelOW......eeeeeeceeeees pece

TUPLSGIction... ce wcccececceseceseees

Constitutional Provisions............

Statement of the Case... . cece eeeces

Reasons for Granting the Writ:

I. There is no rational basis

to deny reenlistment in the

military to the petitioner,

admitted by the respondents

to be an excellent soldier,

solely on the basis of her

homosexual orientation

without evidence of any

type of misconduct.

II. Military regulations which

mandate denial of reenlist-

ment to those individuals

who admit to homosexual

orientation, but have never

been found to have commit-

ted a homosexual act,

unreasonably chills freedom

of speech.

iii

III. Individuals of homosexual

orientation are members of

a group which is entitled

to strict scrutiny under

equal protection analysis.

eeeeeeesteeeeeseeneespeeeeeeeeeeee 24

Iv. The respondents' decision

to deny reenlistment to

those of homosexual orien-

tation should not be gran-

ted broad deference by the

court.

e*eeeees8s+e@eeeee#ee#eeene32«ee@*e teeee#eeee#eeee#e#* 30

GOMBAMBSEOR cccaccesceeeseseseeteseeeses 32

Opinion, Seventh Circuit

Court of Appeals, August

Ve 1989 eeee7e2ee3e8e+eensete3estenseeeeeeee#eeee#ee#eers#e#eee A-1

Opinion, U.S. District

Court, Eastern District

of Wisconsin, Jan. 10, 1989 ....... A=-55

Opinion, U.S. District

Court, Eastern District

of Wisconsin, Aug. 2, 1989 ........ A=93

Opinion, U.S. District

Court, Eastern District

of Wisconsin, Sept. 1, 1988 ...... A-lll

Order, Seventh Circuit

Court of Appeals, Nov. 1, 1989 ... A-118

Order, Seventh Circuit

Court of Appeals, Aug. 7, 1989 ... A=-120

Order, Seventh Circuit

Court of Appeals, Oct. 11, 1989 .. A-122

TABLE OF AUTHORITIES

Cases Page

Ben-Shalom v. Secretary 4

, 489 F.

Supp. 964 (E.D. Wis. 1980)

Ben-Shalom v. Marsh, *

703 F. Supp. 1372 (E.D.

Wis. 1989)

Ben-Shalom v. Secretary 4

, 826 F.2d 722

(7th Cir. 1987)

Ben-Shalom v. Marsh, 881 8,9

F.2d 454 (7th Cir. 1989)

, 347 13

U.S. 497 (1953)

Ww Vv wick, 478 15,27,28,29,30

U.S. 186 (1986)

Brown v. Glines, 444 23

U.S. 348, 353-55 (1979)

, 413 30

U.S. 1 (1973)

High Tech Gays v. 26

Defense Industrial

’

668 F. Supp. 1361

(N.D. Cal. 1987)

, 591 F.2a 852

(D.c. Cir. 1978)

McGinnis vy. Royster, 410 13

U.S. 263, 270 (1972)

Padula v. Webster, 833 29,30

F.2d 97 (D.C. Cir. 1987)

Perry v. Singermann, 408 22

F.2d 593, 597 (1972)

Rowland v. Mad River 26

Local School District,

470 U.S. 1009 (1984)

(Brennan, J., dissenting

from denial of cert.)

24,25

837 F.2d 1428 (S$th Cir.

1988), decision aff'd. en

banc on other grounds,

875 F.2d 699 (9th Cir.

1989)

Watkins v. U.S. Army, 18,29

875 F.2d 699 (9th Cir.

1989)

’ 29

871 F.2d 1068 (Fed. Cir.

1989)

Constitutional Provisions

First Amendment, 3,6,22,24

U.S. Constitution

Fifth Amendment, 3,6,12

U.S. Constitution

Fourteenth Amendment, 12

U.S. Constitution

Statutes

Article 125, UCM, 18,19

10 U.S.C. §925

28 U.S.C. §1331 6

Regulations

AR 140-lll, Table 4-2 4,7,8

Other Authority

Sexual Orientation and 28,29

the Constitution: A Note

on the Relationship

Between Due Process and

Equal Protection, Cass R.

Sunstein, 55 U. of

Chicago Law Review,

1161 (1988)

Nonconforming Sexual 11,15,16,17,21

Orientations and

Military Suitability.

Theodore R. Sarbin, Ph.D.

and Kenneth E. Karols,

M.D., Ph.D.

vii

Sk eine!

No.

In the

SUPREME COURT OF THE UNITED STATES

October Term, 1989

MIRIAM BEN-SHALOM,

Petitioner,

Vv.

JOHN ©. MARSH, JR., Secretary

of the Army, VANCE COLEMAN,

Commanding Officer, H.Q. 84th

Division, U.S. Army Reserve,

and JOHN ALLEN, Lt. Colonel,

Commanding Officer, 509lst U.S.

Army Reception,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Petitioner, Miriam Ben-Shalon,

respectfully prays that a writ of

certiorari issue to review the judgment

of the United States Court of Appeals for

the Seventh Circuit entered on August 7,

1989.

OPINIONS BELOW

The opinion of the United States

Court of Appeals for the Seventh Circuit

is reported at 881 F.2d 454 (7th Cir.

1989). The opinion appears in the

appendix at A-1l.

The first two district court

opinions (regarding respectively the

preliminary injunction and contempt

citation) are unreported. Those opinions

appear in the appendix at pages A-93 and

A-111l respectively.

The district court's decision on the

merits is reported at 703 F. Supp. 1372

(E.D. Wis. 1989) and appears in the

appendix at A-55.

JURSIDICTION

The judgment sought to be reviewed

is dated August 7, 1989, and was entered

that day. The petition for rehearing and

suggestion for rehearing en banc was

denied October 11, 1989. This court has

jurisdiction under 28 U.S.C. §1254(1).

CONSTITUTIONAL PROVISIONS

I. First Amendment, U.S.

Constitution (excerpt).

Congress shall make no law...abridg-

ing the freedom of speech...

II. Fifth Amendment, U.S.

Constitution (excerpt).

No persons shall...be deprived of

life, liberty, or property, without due

process of law.

STATEMENT OF THE CASE

Petitioner, Miriam Ben-Shalom, is

currently a member of the Army Reserves

and is a Technical Sergeant with the

509lst Reception Batallion of the 84th

Division (Training), whose headquarters

is located in Milwaukee, Wisconsin. She

is an admitted lesbian. Petitioner was

previously discharged from service

because she made statements that she was

a lesbian. In 1980 the District Court

for the Eastern District of Wisconsin

ordered her reinstated. Ben-Shalom v.

Secretary of the Army, 489 F. Supp. 964

(E.D. Wis. 1980).

In that case, the Army did not

appeal from the finding that its regula-

tions regarding homosexuality were

unconstitutional. However, the Army

continued to refuse to reinstate her

until ordered by a Seventh Circuit Court

of Appeals decision in Ben-Shalom v.

Secretary of the Army, 826 F.2d 722 (7th

Cir. 1987). That order required the Army

to reinstate the petitioner for the

remaining eleven months and two weeks of

her service contract.

Petitioner applied for reenlistment

in the early spring of 1988, but was

barred from reenlisting by the respon-

dents because she is in violation of Army

Reserve Regulation AR 140-111, Table 4-2,

which makes homosexuality a non-waivable

disqualification to enlistment.

In the petitioner's statement to her

commanding officers recommendation to bar

her from reenlistment, petitioner

acknowledged that she was an individual

of homosexual orientation, but asked the

respondents not to consider her sexual

orientation a disqualifying factor for

her reenlistment.

Notwithstanding, the petitioner's

reenlistment was barred effective March

1, 1988, the date of her commanding

officer's recommendation. Because

homosexuality is a non-waivable moral

disqualification, there were not any

other additional administrative remedies

available to the petitioner and as a

result, this action was filed on May 3,

1988.

The jurisdiction of the court was

invoked under 28 U.S.C. §1331 (general

Federal question jurisdiction) because

the petitioner alleged a violation of her

First and Fifth Amendment rights.

The petitioner attached a motion for

preliminary injunction with her conm-

plaint, which sought declaratory and

injunctive relief. On August 3, 1988,

the district court issued a preliminary

injunction which ordered, "...that the

defendants be and hereby are directed to

consider Sergeant Ben-Shalom's reenlist-

ment. without regard to her sexual

orientation until further order of the

court."

On August 11, 1988, the date the

petitioner's enlistment contract was to

expire, she was informed that, although

she otherwise met reenlistment criteria

contained within Army Regulations AR 140-

lll, her request for reenlistment was

denied and her current enlistment

contract was extended pending judicial

review.

Thereafter, petitioner's counsel

informed the respondents that it was her

position that the Army was in noncompli-

ance with the court's order of August 3,

1988. When the respondents failed to

respond to the petitioner's request to

comply with the court's order, a motion

for civil contempt was filed. On

September 1, 1988, the district court

held the Army in contempt for its failure

to obey the court's order. On September

12, 1988, the Army reenlisted the

eerie

petitioner for six years on the condition

that if the court's order is later

vacated "...this enlistment will be

voided." The respondents appealed from

that order.

During the pendency of that appeal

the district court ruled on the merits.

In a decision entered January 10, 1989,

the District Court for the Eastern

District of Wisconsin held that Army

Reserve Regulation AR 140-1lll, Table 4-2,

be and hereby is declared unconstitu-

tional on its face. Ben-Shalom v. Marsh,

703 F. Supp. 1372 (E.D. Wis. 1989). The

respondents appealed from that order as

well and the appeals were consolidated in

the Seventh Circuit Court of Appeals.

On August 7, 1989, the Court of

Appeals reversed the district court's

decision. Ben-Shalom v. Marsh, 881 F.2d

454 (7th Cir. 1989). The petitioner

filed a petition for rehearing and

rehearing en banc, which was denied in an

order dated October 11, 1989. The

petitioner then made a motion to stay the

mandate. The Court granted that motion

and the mandate was stayed to and

including December 1, 1989.

It is noteworthy to realize that

this case has no factual disputes

whatsoever. There is no dispute that the

petitioner is and continues to be an

excellent soldier. There is no evidence

of any misconduct on the petitioner's

part, and that she is being disqualified

from military service only because of her

statements that she is a lesbian. The

petitioner's argument throughout the many

years of her litigation with the respon-

dents has always been that to bar her

ell

from serving in the military simply

because of who or what she is or who or

what she says she is violates the U.S.

Constitution.

The respondents' position continues

to be that allowing homosexuals in the

military constitutes a threat to good

order and discipline. However, the

record does not reflect any study or

empirical data which back up the respon-

dents' conclusions. In fact, the

respondents have suppressed studies which

show that homosexuals are no less

suitable for military service than other

minority groups. Most recently, the

Defense Personnel Security Research and

Education Center (Perserec), a research

organization for the Pentagon, issued a

draft report dated December, 1988, to the

Defense Department}. The draft report

was suppressed by Defense Dept. personnel

for 10 months but was released to certain

members of the Congress in late October,

1989. That report reached the startling

conclusion that the military should

reexamine its policies toward homosexuals

because there is little, if any, evidence

to support the respondents' claim that

homosexuals are a detriment to the

military.

Although the respondents were fully

aware of the Perserec study, its exis-

tence was not revealed to Congress or the

public until October of this year. Even

in light of this report, the respondents

continue to advocate the position that

. Theodore R.

Sarbin, Ph.D. and Kenneth E. Karols,

M.D., Ph.D.

pennant

homosexuals, per se, are not suitable for

military duty.

REASONS FOR GRANTING THE WRIT

I. THERE IS NO RATIONAL BASIS TO

DENY REENLISTMENT IN THE MILITARY TO THE

PETITIONER, ADMITTED BY THE RESPONDENTS

TO BE AN EXCELLENT SOLDIER, SOLELY ON THE

BASIS OF HER HOMOSEXUAL ORIENTATION

WITHOUT EVIDENCE OF ANY TYPE OF MISCON-

DUCT.

There are no factual disputes in

this case. No one denies that the

petitioner is an exemplary soldier. She

has had no problems in the past working

with other soldiers and has, in fact,

been singled out for her overall excel-

lence. The respondents want to separate

her from the military because she belongs

to a group of individuals who, because of

their status, allegedly threaten the good

order and discipline of the military.

The equal protection clause of the

Fourteenth Amendment to the U.S. Consti-

tution directs that no state shall

"...deny to any person within its

jurisdiction the equal protection of the

laws." The Fifth Amendment's due process

Clause has long been held to bind the

Fourteenth Amendment's equal protection

anlaysis to actions by the Federal

government. Bolling v. Sharpe, 347 U.S.

497 (1953). Under the most deferential

standard of § scrutiny, a government

regulation that burdens a particular

group will be presumed valid under the

equal protection clause as long as that

regulation "...rationally furthers some

legitimate, articulated State purpose."

McGinnis v. Royster, 410 U.S. 263, 270

(1972).

The group burdened by the Arny

Reserve Regulation in question are those

individuals of homosexual orientation.

Petitioner is an admitted member of that

group. There is no evidence in the

record that the petitioner has engaged in

conduct which violates military regula-

tions. She is being denied reenlistment

because she has acknowledged her member-

ship in the burdened classification.

The issue of whether or not those of

homosexual orientation should ‘be granted

suspect or quasi-suspect class status is

argued below. The question here is

whether there is a rational basis to deny

membership in the military to those of

homosexual orientation.

Those of homosexual orientation are

the last minority group to which the

Federal government sanctions outright

discrimination without any evidence of

individual misconduct by members of the

group. This situation is not like the

case of Bowers v. Hardwick, 478 U.S. 186

(1986), in which the court was asked to

find that previously criminalized acts of

homosexual sodomy were protected by the

due process clause of the Fourteenth

Amendment. The case at bar is not a

"conduct" case. The petitioner is simply

asking to not be penalized because of who

she is when that status has nothing to do

with her abilities to be a good soldie:.

The respondents have never been able to

produce any empirical data whatscever

which supports their position. In fact,

a study commissioned by the Defense

Department urges a reexamination of the

military's policy on homosexuality. The

Defense Personnel Security Research and

Education Center (Perserec) generated a

draft report for the Pentagon entitled

"“Nonconforming Sexual Orientations and

Military Suitability". That draft report

was prepared by Theodore R. Sarbin,

Ph.D., and Kenneth E. Karols, M.D., Ph.D.

The Perserec report examines the existing

scientific and social data and concludes

that military policy on homosexuals

should be reexamined.

Studies of homosexual veterans

make clear that having a same-

gender or opposite-gender

orientation is unrelated to job

performance in the same way as

being left--or right--handed

(Williams and Weinberg, 1971).

Perserec report, page 33.

The Perserec report also concludes

that homosexuals should be treated as a

minority group along the same lines as

ethnic or racial minorities:

Our analysis directs us to

regard people with non-conforn-

ing sexual orientation as a

minority group. Our nation has

a long history of successfully

dealing with minority groups,

particularly ethnic minorities.

In the recent past, we have

also learned how to integrate

racial and other’ minority

group, notably women, into

nearly every aspect of po.iti-

cal and social life. The

suggestion that we perceive

homosexual men and women as a

minority group follows from our

analysis of contemporary

scientific social and legal

observations. The social

construction of homosexuals as

minority group members is more

in tune with current behavioral

science theory than the earlier

constructions: sin, crime and

sickness.

Perserec report, page 33.

Rationality of a given policy, like

beauty, is often in the eye of the

beholder. What is rational to one may

seem irrational to another based on those

individuals differing backgrounds.

However, from a legal perspective, it is

difficult to support a government policy

which holds that a particular group is

detrimental to the military, when the

military's own studies indicate just the

opposite. As further evidence of the

irrationality of the respondents position

is the obvious example of the petitioner

who is not only an acceptable soldier,

but one who excels. Petitioner is

certainly not the only homosexual to be

an excellent soldier. Other cases have

reflected homosexual individuals who have

excelled in military life. See Watkins

v. U. , 875 F.2d 699 (9th Cir.

1989); Matlovich v. Secy. of Air Force,

591 F.2d 852 (D.C. Cir. 1978).

Finally, the respondents' argument,

which is accepted by the Seventh Circuit

Court of Appeals panel, that homosexuals

should be denied military service because

they are prone to engage in criminal

sexual conduct, is also irrational. The

Uniform Code of Military Justice (UCMJ)

makes it a crime to engage in certain

types of sexual activity, including oral

and anal sex. See Article 125, UCMJ, 10

U.S.C. §925. The statute does not

differentiate between homosexual and

heterosexual sodomy. It is illegal to

engage in heterosexual acts of oral and

anal sex, as well as homosexual acts of

the same type. It is irrational to deny

admittance to the military to one group

of individuals (those of homosexual

orientation) because some of the groups

members may engage in criminal sexual

conduct and not deny admittance to

another group (heterosexuals) when some

members of that group may also engage in

that type of criminal sexual conduct.

Supreme Court precedent does not

preclude a finding that there is no

rational basis for the respondents'

regulation barring those of homosexual

orientation. There is no evidence in the

record of any empirical data supporting

the respondents' position, and in fact

the respondents were well aware of data

generated by the defense department which

contradicted that same policy. The

petitioner has showed herself to be

superbly qualified to serve her country.

The importance of this question to

homosexuals in the United States cannot

be underestimated. Although many

homosexuals have no interest in joining

the military, all have an interest in

making sure that the Federal government

does not, in any of its agencies, condone

discrimination which does not rationally

relate to any legitimate government

interest. To allow this sort of legisla-

tion to continue would invite other

government agencies to blatantly discrin-

inate against homosexuals in other areas

not related to the military. If the

respondents are allowed to continue an

irrational policy which is based on

prejudicial stereotypes and lacks

empirical data to support it injures all

homosexuals, whether in the military or

not. The recent release of the defense

department studies (Perserac) which

indicate that homosexuals are as suitable

to the military as heterosexuals and the

public interest those reports. have

generated, underscores the belief of the

petitioner that the time is ripe for the

court to examine the military's policy

towards those of homosexual orientation.

If. MILITARY REGULATIONS WHICH

MANDATE DENIAL OF REENLISTMENT TO THOSE

INDIVIDUALS WHO ADMIT TO HOMOSEXUAL

ORIENTATION, BUT HAVE NEVER BEEN FOUND TO

HAVE COMMITTED A HOMOSEXUAL ACT, UNREAS-

ONABLY CHILLS FREEDOM OF SPEECH.

The petitioner was denied reenlist-

renee

ment in the military because of her

statements that she was a lesbian. There

is no dispute that the petitioner has the

right to make those statements. The

question is whether the respondents

unreasonably chill her right to make such

statements by withholding a valuable

government benefit if she makes then.

This court, in Perry v. Sindermann,

408 F.2d 593,597 (1972) has held that the

government cannot prevent indirectly that

which it can't do directly, i.e. restrict

the petitioner's rights to say who and

what she is. The District Court, in its

January 10, 1989, decision on the merits

decided that the petitioner's speech was

protected, but that the "...protection of

the First Amendment in military life is

not coextensive with that of civilian

life." Appendix at A-69.

The court then analyzed whether the

regulation protected a substantial

government interest and also whether the

regulation restricted speech more than

was reasonably necessary tc protect the

substantial government interest. Id.

citing Brown v. Glines, 444 U.S. 348,

353-55 (1979). The court found that the

interests articulated by the respondents

(listed in the decision, Appendix at A-

71) were indeed substantial. However,

the court decided that the regulation did

not advance those government interests

for the same reasons given above with

regard to the equal protection argument.

Appendix at A-75-76. In other words,

because it is irrational to deny admit-

tance in the military to individuals of

homosexual orientation, it is just as

irrational (i.e. unreasonable) to

restrict those individual statements

regarding their sexual orientation.

First Amendment rights of a soldier

are admittedly more restrictive than

those of a civilian. However, that does

not mean that the military has the right

to unreasonably prevent a soldier from

identifying who he or she is. This court

should examine the petitioner's claim

that the military is unreasonably

restricting her right to identify herself

in light of the fact that there is no

military interest served by such restric-

tions.

Itt. INDIVIDUALS OF HOMOSEXUAL

ORIENTATION ARE MEMBERS OF A GROUP WHICH

IS ENTITLED TO STRICT SCRUTINY UNDER

EQUAL PROTECTION ANALYSIS.

In the case of the three judge panel

in Watkins v. United States, 837 F.2d

1428 (9th Cir. 1988), decision aff'd. en

banc on other grounds, 875 F.2d 699 (9th

Cir. 1989), the majority gives an

extensive analysis of why those of

homosexual orientation should be entitled

to strict scrutiny.

There is little doubt that homosex-

uals have suffered a history of purpose-

ful discrimination. Homosexuals over the

years have suffered and continue to

suffer discrimination based on prejudice

and unsupported stereotypes, which the

petitioner, by her very success in the

military proves wrong every day.

A class based on homosexual orienta-

tion is defined by a trait that there is

no relationship to the individual's

ability to contribute to the good of

society or of the military. This is

shown in the Perserec report which

reaches a conclusion that homosexuality

is unrelated to job performance in the

————————————

same way as being left or right handed.

Perserec report at page 33. See also,

High Tech Gays v. Defense Industrial

Security Clearance Office, 668 F. Supp.

1361 (N.D. Cal. 1987).

Homosexuals rarely possess the

political power to effectively bring

about the change in legislation necessary

to end such discrimination. Rowland v.

Mad River Local School District, 470 U.S.

1009 (1984) (Brennan, J., dissenting from

denial of cert.). When that occurs, they

must turn to the courts for protection.

The Court of Appeals in this case

found that homosexuals were not without

political power. In a footnote to the

decision, the court stated

Homosexuals are not without

political power. Time magazine

reports that one congressman is

an avowed homosexual, and that

there is a charge that five

other top officials are known

to be homosexual. Carlson, How

to Spread a Sexual Smear, Time,

June 19, 1989, at 33.

Appendix at A-51, n.9. It is difficult

to see how the court could find that

homosexuals have political power when the

very title of the article indicates that

being labeled a homosexual would be

considered a sexual smear.

The fact that this court has ruled

that private acts of consensual homosex-

ual sodomy are not protected by the due

process clause of the Constitution,

Bowers v. Hardwick, 478 U.S. 186 (1986),

does not preclude this court finding that

those of homosexual orientation are

entitled to suspect classification.

Concurring opinion in Bowers specifically

noted that an equal protection claim was

not being advanced by the petitioner in

that action. Bowers v. Hardwick at 196

tt rl

A recent Law Review article examines

the relationship between the due process

and equal protection clauses as they

relate to sexual orientation. See Sexual

Orientation and the Constitution: A Note

on the Relationship Between Due Process

and Equal Protection, Cass R. Sunstein,

55 U. of Chicago Law Review, 1161 (1988).

Professor Sunstein found that Bowers v.

Hardwick does not preclude this court

finding that deferential treatment of

homosexuals is constitutionally impermis-

sible under the equal protection clause.

"The conclusion that the due process

clause does not’ protect homosexual

sodomy, does not resolve the question

whether principles of equal protection

forbid discrimination on the basis of

sexual orientation." Sexual Orientation

and the Constitution, Sunstein, at 1178.

It may be useful to conclude by

suggesting that the legal

regime produced by Watkins is

coherent even in the face of

Hardwick. Watkins makes it

generally impermissible to

single out gays and lesbians

for a special disability;

deferential treatment of that

sort will face a large burden

of justification. So long as

Hardwick remains the law,

however, measures that pro-

scribe certain sexual activi-

ties may be upheld against the

due process attack so long as

the prohibitions apply regard-

less of sexual orientation.

The requirement of generality

operates as a political

safeguard, insuring that if the

heterosexual majority is to

burden gays and lesbians, it

must burden itself as well.

id. at 1177-78.

There has been a number of disagree-

ments in the Circuits as to the effect of

Bowers v. Hardwick, supra, regarding this

issue. See Watkins v. United States,

supra; Woodward v. United States, 871

F.2d 1068 (Fed. Cir. 1989); Padula v.

aaa

Webster, 833 F.2d 97 (D.C. Cir. 1987).

This court should rule conclusively as to

the effect of Bowers v. Hardwick on equal

protection claims.

IV. THE RESPONDENTS' DECISION TO

DENY REENLISTMENT TO THOSE OF HOMOSEXUAL

ORIENTATION SHOULD NOT BE GRANTED BROAD

DEFERENCE BY THE COURT.

The panel in the Seventh Circuit

Court of Appeals held that courts have

little competence in reviewing decisions

by the Armed Forces. Appendix at A-53.

This type of decision, where there is no

factual dispute and the issue is not one

which requires particular military

expertise (such as what type of weapons

to use or strategies to employ) is of the

type which the courts are well equipped

to review. In Gilligan v. Morgan, 413

U.S. 1 (1973) the issues that were

granted broad deference to the military

concern the training, weaponry and orders

in the Ohio National Guard. That is not

the case here. The issue is one of

determining the constitutionality of a

regulation regarding employment of a

broad class of citizens, and has nothing

to do with the technical aspects of the

military. If the military attempted to

enact regulations which deny individuals

admittance on the basis of race, there is

little doubt that this court would grant

no deference whatsoever to the military's

expertise on that subject. This court

should thoroughly examine the respon-

dents' alleged rationale for its policy

denying admittance to those of homosexual

orientation. This court should not rely

on the conclusions advanced-by the

military for this policy, especially in

light of the evidence which indicates

that the conclusions are without founda-

tion. This court should closely examine

the military's policy regarding homosex-

uality.

CONCLUSION

For these reasons, a writ of

certiorari should issue to review the

judgment of the United States Court of

Appeals for the Seventh Circuit.

Respectfully submitted,

PATRICK T. BERIGAN

COUNSEL OF RECORD FOR

PETITIONER.

ROBERT C. ANGERMEIER

Angermeier & Rogers

625 N. Milwaukee St., #404

Milwaukee, WI 53202

nee

In the

United States Court of Appeals

For the seventh Circuit

_ Nos. 88-2771 and 89-1213

MIRIAM BEN=-SHALOM,

Plaintiff-Appellee,

Vv.

JOHN O. MARSH, JR., Secretary of the

Army, VANCE COLEMAN, Commanding Officer,

H.Q. 84th Division, U.S. Army Reserve,

and JOHN ALLEN, Lt. Colonel, Commanding

Officer, 509lst U.S. Army’ Reception

Battalion,

Defendants-Appellants.

Appeal from the United States

District Court for the

Eastern District of Wisconsin.

No. 88-C-468--Myron L. Gordon, Judge.

ARGUED MAY 18, 1989--

DECIDED AUGUST 7, 1989

Before WOOD, JR., EASTERBROOK, and

KANNE, Circuit Judges.

WOOD, JR., Circuit Judge. This case

concerns an avowed homosexual, a lesbian,

who has’7- persistently sought and now

A-1l

secured, with district court assistance,

reenlistment in the Army. The Army

under its regulations seeks to void that

reenlistment. As might be expected the

issue is controversial, as evidenced by

the number of amici curiae all supporting

plaintiff Miriam Ben-Shalon.? The

district court has entered a permanent

injunction requiring the Army to continue

the reenlistament of plaintiff Ben-Shalom

without regard to her sexual orientation.

Background

Plaintiff is presently a sergeant in

the United States Army Reserve performing

duty with the 509lst U.S. Army Reception

Battalion in Milwaukee, Wisconsin. There

lfhe defendants are collectively

referred to as the Army.

2Filing briefs as amici curiae are

American Civil Liberties Union of

Wisconsin Foundation, Inc., American

Jewish Congress, Women's Legal Defense

Fund, and American Psychological Association.

A-2

is no complaint about the actual perfor-

mance of her military duties.

In 1976 plaintiff was discharged

from the reserves pursuant to then-

existing Army Regulation (AR) 135-178,

para. 7-5(b)(6), which provided for the

discharge of any soldier who "evidenced

homosexual tendencies, desire or inter-

est, but is without overt homosexual

acts." Plaintiff promptly filed suit

Claiming that her discharge under that

regulation violated her constitutional

rights to free speech and privacy. Judge

Evans viewed those regulations as

overbroad under the First Amendment, and

also as violative of plaintiff's consti-

tutional right to privacy that, in Judge

Evans' opinion, protected Ben-Shalom's

sexual preferences. There was found no

proof of nexus between sexual preference

and military capabilities. Plaintiff was

A-3

ordered reinstated by Judge Evans for the

remaining eleven months of her enlist-

ment. Ben-Shalom v. Secretary of Army,

489 F. Supp. 964 (E.D. Wis. 1980) (Ben-

Shalom I).

The Army did not appeal and the

district court reinstatement order became

final. After the Army failed to comply

with the reinstatement order plaintiff

sought to have the Army held in contempt.

The district court, however, declined to

enforce the reinstatement order, and

instead ordered compensation for plain-

tiff's uncompleted enlistment term. That

response did not satisfy plaintiff. On

appeal, this court held in an unpublished

order that the district court improperly

used the civil contempt proceedings to

reopen the legal or factual basis of the

original reinstatement order. The

district court's judgment was therefore

A-4

vacated and the case remanded. This

court suggested in connection with the

remand that the Army's only remedy was

pursuant to Rule 60(b) of the Federal

Rules of Civil Procedure, but expressed

no opinion on the merits of that possible

effort. On remand the Army did test that

remedy but failed in the district court,

and subsequently in this court on appeai.

Ben-Shalom v. Secretary of Army, 826 F.2d

722 (7th Cir. 1987). It was pointed out

that a Rule 60(b) motion is no substitute

for appeal and cannot be used merely to

relitigate the merits of the case. The

district court was therefore affirmed in

its latest judgment, requiring that

plaintiff actually be reinstated for the

eleven-month balance of her original

enlistment and not just compensated for

it. The Army complied, but because

protracted litigation delayed her

A-9

reinstatement significantly, plaintiff's

enlistment did not expire until August

1988. That is where the current legal

chapter begins.

While still serving her original

enlistment (as extended by the district

court's order) plaintiff sought to

reenlist for another full six-year tern.

In response, plaintiff's connanding

officer notified her in March 1988 that

the Army was considering whether she

should be barred from reenlistment under

AR 140-111, Table 4-2, Rule E, on the

ground that she is an admitted homosex-

ual.? This is a new regulation, adopted

3Table 4-2 sets forth certain

nonwaivable moral and administrative

disqualifications. Rule E sets forth the

following disqualification:

E. Questionable moral character,

history of antisocial behavior,

sexual perversion, homosexual-

ity (includes an individual who

is an admitted homosexual but

as to whom there is no evidence

A-6

that they have engaged in

homosexual acts either before

or during military service, or

has committed homosexual acts),

or having frequent difficulties

with law enforcement agencies.

(See note l.)

Notes:

1. Homosexual acts consist of

bodily contact between persons

of the same sex, actively

undertaken or passively

permitted, with the intent of

obtaining or giving sexual

gratification, or any proposal,

solicitation or attempt to

perform such an act. Individu-

als who have been involved in

homosexual acts in an appar-

ently belated episode, stemming

solely from immaturity,

curiosity, or intoxication, and

absent other evidence that the

individual is a homosexual,

normally will not be excluded

from service. A homosexual is

an individual, regardless of

sex, who desires bodily contact

between persons of the same

sex, actively undertaken or

passively perwitted, with the

intent of ceStaining or giving

sexual gratification. Any

official, private, or public

profession of homosexuality may

be considered in determining

whether an individual is an

admitted homosexual.

A-7

after the prior regulation had been found

unconstitutional. It governs the

immediate reenlistment or extension of

enlistment in the U.S. Army Reserve.

That notice further advised plaintiff

that her admission of homosexuality gave

rise to a presumption that she was a

homosexual, and that therefore she had

thirty days within which to submit a

response rebutting that presumption. In

her response to the Army's notice,

plaintiff again admitted that she is a

lesbian. After considering her response,

the Army notified plaintiff on April 7,

1988, that accordingly she was barred

from reenlistment.

A month later plaintiff filed this

new lawsuit, this time to be heard by

Judge Gordon, charging that the regula-

tion, which makes the status of homosex-

uality a nonwaivable disqualification to

A-8

reenlistment regardless of $ conduct,

violates plaintiff's constitutional

rights under the First and Fifth Amend-

ments. The First Amendment claim was

based on the fact that the only evidence

of plaintiff's homosexuality was her own

admission. Plaintiff argued that the new

regulation had the effect of chilling her

freedom of expression as she would no

longer be able to make statements regard-

ing her sexual orientation, statements

that she would otherwise be free to make.

Alternatively, plaintiff alleged that the

regulation violated her Fifth Amendment

right to equal protection of the law

because the regulation discriminates on

its face against a discrete and insular

group to which plaintiff belongs.

Plaintiff therefore sought a declaratory

judgment that the pertinent part of the

regulation is unconstitutional on its

A-9

face, and asked that the Army be affirma-

tively enjoined to consider plaintiff's

reenlistment application without regard

to her sexual orientation.

On August 3, 1988, a few days before

plaintiff's extended enlistment was to

expire, Judge Gordon granted her a

temporary injunction to preserve her

enlistment status quo pending final

resolution of her case, and ordered the

Army to consider plaintiff's reenlistment

request without regard to her sexual

orientation. The Army did as it was

directed by the District court and found

plaintiff to be otherwise qualified.

However, the Army, instead of granting

her a new reenlistment as ordered (which

it considered to be a violation of its

superseding regulations that had not yet

been declared invalid), merely extended

plaintiff's original enlistment pending

A-10

| ian tile maine

further review. In response plaintiff

sought successfully to have the Army held

in civil contempt for failing to fully

comply with the court's order. A fine of

$500 per day was imposed by the district

court for plaintiff's benefit. The

district court delayed the imposition of

the fine to permit the Army time to apply

to this court for a stay. Rather than

seek a stay, the Army commplied with the

order of the district court, condition-

ally reenlisted plaintiff for a new six-

year term, and then appealed. Plain-

tiff's new reenlistment term was subject

to the condition that if the district

court's order was subsequently vacated,

reversed, set aside, or otherwise

terminated her new enlistment would be

voided.

On January 10, 1989, the district

court concluded the matter by holding

A-1l

that the new regulation was unconstitu-

tional on both grounds alleged by

plaintiff.* Her First Amendment rights

were found to have been violated by the

Army's reliance only upon her admission

of homosexuality without evidence that

she had in fact committed homosexual

acts. The district court also found that

the Army had shown no basis to support

its contention that acknowledgement of

homosexuality constitutes reliable

evidence of propensity to engage in

homosexual conduct. In regard to

plaintiff's equal protection claim, the

district court found that a grouping of

individuals based on sexual orientation

constitutes a suspect classification, but

that it was not necessary to subject that

Classification to strict scrutiny

4mhe district court's opinion is

reported at 703 F. Supp. 1372 (E.D. Wis.

1989).

A-12

because, in any evnet, the new regulation

Classification was not rationally related

to any articulated legitimate governmen-

tal interest. Judge Gordon held that any

regulation on the subject, in order to be

valid, had to be targeted at sexual

conduct, not just homosexual orientation.

The Army first appealed from the

temporary injunction, and that appeal has

been consolidated with its later appeal

from the permanent injunction. The

constitutionality of the Army's new

regulation on homosexuality is now the

issue.

First Amendment Issue

Judge Gordon, in his decision of

January 10, 1989, declared AR 140-111,

Table 4-2 to be unconstitutional on its

face in violation of plaintiff's First

and Fifth Amendment rights, and directed

the Army to continue plaintiff's reen-

A-13

listment as previously ordered without

regard to her sexual orientation. The

district judge noted that the basic Army

policy remained the same as it was in

1980, although the applicable regulation

had been reworded. He also noted that

the Army considers having a homosexual

orientation to be incompatible with

military service because the Arny

believes that the admission of homosexu-

ality demonstrates a propensity to engage

in homosexual conduct. The Army did not

offer evidence that plaintiff has engaged

in or attempted to engage in homosexual

conduct. The regulation defines a

homosexual, the district court also

found, merely on the basis of one's

sexual desires so that neither the actual

commission of a homosexual act, nor the

intent to commit one, need be an element

in a discharge pursuant to the new

A-14

regulations.

That view of the new regulation led

Judge Gordon to conclude, as Judge Evans

had in Ben-Shalom I, that plaintiff's

proclamations of lesbianism were protec-

ted speech. In analyzing the problem the

district court sought guidance from Brown

v. Glines, 444 US. 348 (1980). In Brown

an officer challenged an Air Force

regulation that required members of that

service to obtain approval from the base

commander before circulating petitions on

an Air Force base. The officer was

disciplined for circulating, without

approval, a petition directed to Con-

gress. The petition sought a change in

the personal grooming standards for Air

Force personnel because, among other

things, it was claimed the standards

caused racial tensions. The Court upheld

the regulations as protecting a substan-

A-15

tial government interest unrelated to the

suppression of free expression, with

speech being restricted no more than was

reasonably necessary for the government

purpose. The substantial government

interet was found to be morale, good

order, and discipline--military matters

that Congress and the Court have recog-

nized require some flexibility be

accorded to military commanders. Justice

Brennan, however, in dissent labeled the

majority reasons about the special nature

and overhwelming importance of military

necessity as being merely a series of

platitudes. Brown, 444 U.S. at 368-69.

Judge Gordon, applying Brown to the

similar government interests advanced by

the Army in the present case, found those

interests to be substantial without any

serious question. The asserted govern-

ment interets in the present case are the

A-16

ability of the military to maintain

discipline, good order and morale; foster

mutual trust and confidence among service

members; insure the integrity of the

system of rank and command; facilitate

assignmetn and worldwide deployment of

service members who frequently must live

and work under close conditions affording

minimal privacy; recruit and retain

members of military service; maintain the

public acceptability of military service;

and prevent breaches of security. These

enumerated interests are set forth in AR

135-178, sec. 10-2.

Judge Gordon then narrowed the

question to whether the pertinent new

regulations swept more broadly than

reasonably necessary to protect those

government interests. The new regula-

tion, he found, was premised on the

following policy, also set forth in AR

A-17

135-178, sec. 10-2:

Homosexuality is incompatible

with military service. The

presence in the military

environment of persons who

engage in homosexual conduct,

or who by their statements

demonstrate a propensity to

engage in homosexual conduct,

seriously impair the accon-

plishment of the military

mission. The presence of such

members adversely affects the

ability of the service to

accomplish the enumerated

government interests.

That policy, it was found, targets

two groups of people, those who engage in

homosexual conduct, and those who

demonstrate a propensity to engage in

homosexual conduct. The Army contended

that plaintiff's admission that she is a

lesbian brought her within the latter of

the two groups. The district court found

that the rewording of the new regulation,

as compared with the original regulation

found unconstitutional in Ben-Shalom I,

was insufficient to cure the previous

A-18

finding of unconstitutionality. It was

acknowledged that the new regulation no

longer affects those who merely evidence

"tendencies" or "interest" in homosexual-

ity, but the new regulation continues "to

affect those who by statements that they

have a homosexual orientation acknowledge

a 'desire' for homosexual conduct." The

Army's argument that such a "desire"

suggests a propensity to engage in actual

homesexual conduct was rejected.

Likewise the district court rejected the

Army's contention that acknowledgement of

being a lesbian without proof of actual

homosexual conduct equals reliable

evidence of "propensity". For the court

to rely on the “obvious connection," and

to use “common sense," as urged by the

Army, was found by Judge Gordon to be

"little more than a euphemism for

prejudice." Judge Gordon found that the

A-19

regulation had "the effect of chilling

(plaintiff's) freedom of expression

because if the regulation is enforced she

will no longer be able to make statements

regarding her sexual orientation....,"

and that therefore the regulation is

“facially violative of the First Amend-

ment."

Judge Gordon's analysis is, as

customary, thoughtful and articulate, and

finds impressive support in Justice

Brennan's dissent in Brown and elsewhere.

But, being found by the majority opinion

in Brown, as we see its application to

the present case, we must come to a

different conclusion. Brown upheld a

‘regulation prohibiting the circulation of

petitions by members of the armed forces,

even a petition addressed to the Con-

gress, and in spite of the fact that by

statute a soldier has the right to

A-20

communicate directly with a member of

Congress. Brown, 444 U.S. at 358. The

Brown regulation was found to be consti-

tutional because the regulation protected

a substantial government interest, a

military interest, unrelated to the

suppression of free expression. It was

pointed out, in substance, that

the military is, by necessity,

a specialized society separate

from civilian society.

Military personnel must. be

ready to perform their duty

whenever the occasion arises.

To ensure that they always are

capable of performing their

mission promptly and reliably,

the military services must

insist upon a respect for duty

and a discipline without

counterpart in civilian life.

Speech that is protected in the

civil population may...under-

mine the effectiveness of

response to command. Thus,

while members of the military

services are entitled to the

protections of the First

Amendment, the different

character of the military

community and of the military

mission requires a different

application of those protec-

A-21

tions. The rights of military

men must yield somewhat to meet

certain overriding demands of

discipline and duty....Speech

likely to interfere with these

vital prerequisites for

military effectiveness there-

fore can be excluded from a

military base.

Brown, 444 U.S. at 354 (citations

omitted).

We see in those words the common

recognition that the military establish-

ment is very different from civilian

life. When necessary, the military must

be able to protect and defend the United

States. That is a most important

government mission, a difficult, demand-

ing and complex one. It requires a

trained professional force of reliable,

loyal, and responsive soldiers of high

morale, with respect for duty and

discipline, soldiers who can work

together as a team to accomplish whatever

missions they may be given by their

commanders. Civilian society is not

A-22

subject co those sometimes harsh and

specialized military demands, and

fortunately need not be because our

Civilian society can depend on the

military, which is. As Brown makes

clear, Congress and the Supreme Court

“have found that the special character of

the military requires that civilian

authorities accord military commanders

some flexibility in dealing with matters

that affect internal discipline and

morale." Brown, 444 US. 360. We are

directed to be careful not to circun-

scribe the authority of military comman-

ders to an extent not authorized by

Congress. Brown holds that "[t)jhe

unrestricted circulation of collective

petitions would imperil discipline. We

find no legislative purpose that requires

the military to assume the risk..." 444

U.S. at 360. Simiarly, we do not believe

A-23

that the Army must assume the risk that

the presence of homosexuals within the

service will not compromise the admit-

tedly significant government interests

asserted in AR 135-178, sec. 10-2.

Moreover, the new regulation we are

now considering is a different regulation

from that originally considered in Ben-

Shalom I. The features then found

objectionable have been substantially

eliminated. Discharge of a soldier who

“evidences homosexual tendencies, desire,

or interest" is no longer. broadly

mandated. Ben-Shalom I, 489 F. Supp. at

971. That language was originally

construed by the district court to

infringe on a soldier's right "to meet

with homosexuals and discuss current

problems or advocate change in the status

quo...{or] to receive information and

ideas about homosexuality." 489 F. Supp.

A-24

at 974. That "tendency" and "interest"

language is now gone. If, for example, a

soldier desires to meet with homosexuals

and discuss current problems or advocate

change in the status quo, or to receive

ideas about homosexuality, then that

soldier, under this new regulation, is

free to do so. This is now a new case,

and not bound by the doctrines of

collateral estoppel or res judicata.

What remains in the new regulation is but

a bar against persons who either admit a

"desire" to commit homosexual acts or who

have in fact committed homosexual acts.°

We are here concerned with plain-

tiff's forthright admission that she is a

homosexual. That reasonably implies, at

°As the regulation indicates,

isolated instances of homosexual conduct,

attributable to curiosity, immaturity or

intoxication, will not automatically

render the individual involved ineligible

for military service.

A-25

the very least, a “desire” to commit

homosexual acts. In determining the

composition of the armed forces, the Army

does not have to take the risk that an

admitted homosexual will not commit

homosexual acts which may be detrimental

to its assigned mission. It is not

disputed, the plaintiff and the court

agree, that the Army has the right to

enforce its regulation® prohibiting the

actual performance of homosexual acts.’

Cf. Bowers v. Hardwick, 478 U.S. 186

(1986).

We see more to the Army's argument

about the “obvious connection" and

“common sense" approach to homosexuals

6article 125 Uniform Code of

Military Justice (10 U.S.C. §925).

7In Dronenburg v. Zech, 741 F.2d

1388 (D.C. Cir. 1984), the plaintiff was

a homosexual seaman, who had admittedly

engaged in repeated homosexual acts on

the Navy base in violation of the

regulations. His discharge was upheld.

A-26

o_o — t+

being integrated into the Army than did

Judge Gordon when he labelled the

argument a "euphemism for prejudice." At

oral argument counsel for plaintiff

stated that there was no basis for the

Army's homosexual regulations, except

prejudice. There no doubt is prejudice

against homosexuals both in and out of

the Army. That possibly may be abating

to a degree. However, the Army should

not be required by this court to asssume

the risk, a risk it would be assuming for

all our citizens, that accepting admitted

homosexuals into the armed forces might

imperil morale, discipline, and the

effectiveness of our fighting forces.

The Commander-in-Chief, the Secretary of

Defense, the Secretary of the Army, and

the generals have made the determination

about homosexuality, at least for the

present, and we, as judges, should not

. A-27

undertake to second-guess those with the

direct responsibility for our armed

forces. If a change of Army policy is to

be made, we should leave it to those more

familiar with military matters than are

judges not selected on the basis of

military knowledge. We, as judges,

although opponents of prejudice of any

kind, should not undertake to order such

a risky change with possible consequences

we cannot safety evaluate. The Congress,

as overseer of the Army and the other

military branches, is also better

equipped to make such determinations.

Even if we assume that the present

regulation does have a chilling effect on

protected speech by discouraging procla-

mations of homosexuality among’- the

military personnel, we cannot say that

that infringement rises to the level of

being unconstitutional. As we. have

A-28

noted, the branches of the military have

great leeway in determining what policies

will foster the military mission, and

courts will rarely second-guess those

decisions. This deference means, among

other things, that policies that might

not pass constitutional muster if imposed

upon a civilian population will be upheld

in the military setting. The court

explained this distinction in Gordman v.

Weinberger, 475 U.S. 503 (1986):

Our review of military regula-

tions challenged on First

Amendment grounds is far more

deferential than constitutional

review of similar laws or

regulations designed for

civilian society. The military

need not encourage debate or

tolerate protest to the extent

that such tolerance is required

of the civilian state by the

First Amendment; to accomplish

its mission the military must

foster instinctive obedience,

unity, commitment, and esprit

de corps. The essence of

military service "is the

subordination of the desires

and interests of the individual

to the needs of the service."

A-29

--e"(Wjithin the military

community there is simply not

the same [{individual] autonomy

as there is in the larger

civilian community."

Goldman, 475 U.S. at 507 (quoting Orloff

v. Willoughby, 345 US. 83, 92 (1953) and

Parker v. Levy, 417 US. 733, 751 (1974)

(other citations omitted).

In Goldman, the Supreme Court upheld

a military restriction that directly

infringed upon ae soldier's religious

freedom, protected by the Free Exercise

Clause of the First Amendment. An Air

Force regulation forbade the wearing of

any headcovering indoors and the wearing

of any but’ regulation headcoverings

outdoors. Goldman, in Air Force officer,

refused to stop wearing his yarmulke,

which was a symbol of what all parties

conceded to be his deep and genuine

commitment to his Orthodox Jewish

principles. The Air Force court-martial-

led Goldman for defying the regulation.

The Air Force's justification for the

A-30

regulation and its enforcement against

Goldman--the need for uniformity in

military attire--was considered to be a

subject best left to professional

military people and the legislative

branch, even though in the civilian world

a similar interest would be insufficient

to justify such infringement upon an

individual's religious beliefs and

practices. The Court stated:

(Wjhen evaluating whether

military needs justify a

particular restriction...courts

must give great deference to

the professional judgment of

military authorities concerning

the relative importance of a

particular military interest.

Goldman, 475 U.S. at 507-08 (citations

omitted). Under this standard, the

Army's refusal to reenlist Ben-Shalom

because she has declared herself to be

homosexual does not cross the line into

unconstitutional infringement.

Ultimately, however, Ben-Shalom's

A-31

First Amendment argument fails because it

is not speech per se that the regulation

against homosexuality prohibits. Ben-

Shalom is free under the regulation to

say anything she pleases about homosexu-

ality and about the Army's policy toward

homosexuality. She is free to advocate

that the Army change its stance; she is

free to know and talk to homosexuals if

she wishes. What Ben-Shalom cannot do,

and remain in the Army, is to declare

herself to be a homosexual. Although

that is, in some sense speech, it is also

an act of identification. And it is the

identity that makes her ineligible for

military service, not the speaking of it

aloud. Thus, if the Army's regulation

affects speech, it does so only inciden-

tally, in the course of pursuing other

legitimate goals. "“(Wjhen ‘speech’ and

'‘nonspeech' elements are combined in the

A-32

same course of conduct, a sufficiently

important governmental interest in

regulating the nonspeech element = can

justify incidental limitations on First

Amendment freedoms." United States v.

O'Brien, 391 U.S. 367, 376 (1968). In

O'Brien the Court rejected a First

Amendment challenge to a statute that

imposed criminal sanctions on a person

who "knowingly destroys, knowingly

mutilates, or in any manner changes" a

draft registration certificate. The

Court held that although burning draft

cards was symbolic speech, it could yet

be barred because the regulation passed

this four-prong test:

a government regulation is

sufficiently justified if it is

within the constitutional power

of the Government; if it

furthers an important or

substantial governmental

interest; if the governmental

interest is unrelated to the

suppression of free expression;

and if the incidental restric-

A-33

tion on First Amendment

freedoms is no greater than is

essential to the furtherance of

that interest.

O'Brien, 391 U.S. at 377. Because the

government has a substantial interest in

maintaining an efficient and easily

administered system of raising armies,

the O'Brien court ultimately held that

the government could punish civilians for

destroying draft registrations, although

doing so would necessarily tend to chill

symbolic speech.

The same may be said of this case,

except with even more force because of

Ben-Shalom's status as a soldier. The

Army has determined that the presence of

homosexual individuals within its ranks

may compromise one or more of its

military interests in its mission of

protecting this country. Plaintiff can

say what she wants to say about homosex-

uals, but if plaintiff admits she is one,

A-34

then the Army has the right to say

something in response, and that is that

she is therefore not acceptable in the

armed forces.

Judge Gordon treated this problem as

a First Amendment issue. On the assump-

tion that it might be a borderline case

we have responded on that basis, but we

find absolutely no First Amendment

violation. This case, however, does

raise legitimate equal protection issues.

Equal Protection

Judge Gordon's equal . protection

analysis concisely sets forth the general

considerations involved as well as could

be done. We therefore borrow and

paraphrase a part of his decision for our

purposes. Our disagreement comes only

with his application of equal protection

principles in the military context.

Judge Gordon explained that plain-

A-35

tiff claims the regulation to be subject

to heightened scrutiny because homosexu-

als, as defined merely by the status of

having a particular sexual orientation

and absent any allegations of sexual

misconduct, constitute a suspect class.

A regulation based on such a classifica-

tion, plaintiff claims, must fail because

it is not necessary to achieve a compel-

ling state end. Alternatively, plaintiff

argues that the regulation fails ration-

ally to further a legitimate, articulated

government purpose.

The Army contends that the regula-

tion does not violate the Fifth Amend-

ment's equal protection guarantee; it

satisfies the test of heightened scrutiny

since it furthers compelling government

interests. Moreover, the Army argues

that homosexuals are not in fact a

suspect class. The Army asserts that the

A-36

correct approach is to uphold the

constitutionality of the regulation under

the traditional test of deferential

scrutiny because the regulation ration-

ally furthers several legitimate govern-

ment interests.

The Equal Protection Clause of the

Fourteenth Amendment directs that no

state shall “deny to any person within

its jurisdiction the equal protection of

the laws." It is made binding upon the

federal government by the Fifth Amend-

ment's Due Process Clause, Bolling v.

Sharpe, 347 U.S. 497, 498-99 (1954), and

Fifth Amendment equal protection claims

are treated precisely the same as equal

protection claims under the Fourteenth

Amendment, Weinberger v. Wiesenfeld, 420

U.S. 636, 638 n.2 (1975).

There are three recognized levels of

equal protection review--rational basis,

A-37

"somewhat heightened review," and "strict

scrutiny"--which are described in

Cleburne v. Cleburne Living Center, Inc.,

473 U.S. 432, 440-41 (1985). See also

id. at 469 (Justice Marshall's remarks

about the classifications). In general,

a government regulation will be presumed

to be valid under equal. protection

analysis as long as the classification

drawn by the regulation "rationally

furthers some legitimate, articulated

state purpose." McGinnis v. Royster, 410

US. 263, 270 (1973). Under this defer-

ential standard of scrutiny, the classi-

fication is tested for a general rela-

tionship to the articulated government

purpose, and it matters not that an

individual member of the burdened class

proves to be an exception. Massachusetts

Bd. of Retirement v. Murgia, 427 U.S.

307, 310-11 (1976). This judicial

A-38

deference is grounded in a constitutional

presumption that "“improvident [classifi-

cations] will eventually be rectified by

the democratic processes." Cleburne, 473

3.8: a 440. However, when a regulation

creates classifications based on "factors

which are so seldom relevant to the

achievement of any legitimate state

interest that laws grounded in such

considerations are deemed to reflect

prejudice and antipathy," Cleburne, 473

U.S. at 440, then judicial deference

gives way to heightened scrutiny.

Judge Gordon reasoned that’ the

debate over whether sexual orientation

constitutes a suspect or quasi-suspect

Classification has been obscured by a

failure to differentiate adequately

between a classification based on conduct

and one based on status. In his view the

regulation at issue creates a classifica-

A-39

tion based entirely on status. AR 140-

111, Table 4-2, as Judge Gordon sees it,

cannot be characterized as a classifica-

tion based on conduct. The issue framed

before the district court was whether

homosexuals, defined by the status of

having a particular sexual orientation

and absent any allegations of sexual

misconduct, constitute a suspect or

quasi~suspect class.

Here we must depart from Judge

Gordon's analysis, in which he-found that

homosexuals constitute a suspect class,

justifying heightened scrutiny of the

regulation, and that the regulation fails

to pass even the most deferential

standard of review. Judge Gordon viewed

the regulation as creating a classifica-

tion based entirely on sexual orienta-

tion, mere status, and not conduct.

Plaintiff is not, however, in the same

A-40

circumstances as the soldier in Rich v.

Secretary of Army, 735 F.2d 1220 (10th

Cir. 1984), who claimead that he was

confused at one time about his sexual

identity, that his sexual identity did

‘not crystalize until after his enlist-

ment, and that his earlier experiences

had been heterosexual followed only by

isolated homosexual episodes. In the

present case, plaintiff is an admitted

lesbian, there is no confusion about

that. Her declaration indicates more

than a mere homosexual tendency or

interest, former criteria eliminated in

the new regulation. The regulation now

refers to one “who desires bodily contact

between persons of the same sex" and

"with the intent of obtaining or giving

sexual gratification." By admitting to

being a lesbian, plaintiff admits to what

the regulation prohibits.

A-41

It is true that actual lesbian

conduct has not been admitted by plain-

tiff on any particular occasion, and the

Army has offered no evidence of such

conduct. Judge Gordon found no reason to

believe that the lesbian admission meant

that plaintiff was likely to commit

homosexual acts. We see it differently.

Plaintiff's lesbian acknowledgement, if

not an admission of its practice, at

least can rationally and reasonably be

viewed as reliable evidence of a desire

and propensity to engage in homosexual

conduct. Such an assumption cannot be

said to be without individual exceptions,

but it is compelling evidence that

plaintiff has in the past and is likely

to again engage in such conduct. To this

extent, therefore, the regulation does

not classify plaintiff based merely upon

her status as a lesbian, but upon

A-42

reasonable inferences about her probable

conduct in the past and in the future.

The Army need not shut its eyes to the

practical realities of this situation,

nor be compelled to engage in the

sleuthing of soldiers' personal relation-

ships for evidence of homeeexual conduct

in order to enforce its ban on homosexual

acts, a ban not challenged here. Plain-

tiff does not deny that she has engaged

in or will engage in homosexual conduct.

Plaintiff has admitted that she has a

homosexual desire, but not necessarily

that she intends to commit homosexual

acts. The Army need not try to fine tune

a regulation to fit a particular lesbi-

an's subjective thoughts and propensi-

ties.

Judge Gordon held that the Arny's

regulation failed equal protection

analysis even under the most deferential

A-43

standard of review. In our view,

however, it is the deferential standard

of review that is applicable and the Army

satisfies that standard without = any

difficulty. Bowers v. Hardwick, 478 U.S.

186 (1986) arose from a state criminal

case unrelated to the military, but

nevertheless it has an impact on the

Army's classification of homosexuals.

Hardwick, a five to four decision, was a

suit for deciaratory judgment brought by

Hardwick challenging a Georgia statute

which criminalized sodomy. Hardwick

anticipated being charged under the

statute after engaging in sodomy with

another consenting adult male while in

the privacy of his own home. Although

the Court analyzed the constitutionality

of the statute on a due process rather

than an equal protection basis, Hardwick

nevertheless impacts on the scrutiny

A-44

aspects under an equal protection

analysis. The majority held that the

Constitution confers no fundamental right

upon homosexuals to engage in sodomy. If

homosexual conduct may constitutionally

be criminalized, then homosexuals do not

constitute a suspect or quasi-suspect

class entitled to greater than rational

basis scrutiny for equal protection

purposes.® The Constitution, in light of

Hardwick, cannot otherwise be rationally

applied, lest an unjustified and indefen-

sible inconsistency result.

Furthermore, even the diocentare in

Hardwick did not necessarily preclude all

regulation of homosexuality. Justice

Blackmun, in dissent in Hardwick,

described the issue as "the right to be

8Sany additional scrutiny is pres-

ently reserved for classifications by

race, alienage, national origin, gender

and illegitimacy. Cleburne v. Cleburne

Living Center, 473 U.S. 432, 443 (1985).

A-45

left alone," contending that such conduct

falls within a certain private sphere of

individual liberty to be kept largely

beyond the reach of government." 478

U.S. at 203. Justice Blackmun also

noted, however, that the homosexual act

involved in Hardwick occurred in a

private home and did not interfere with

the rights or interests of others. 478

U.S. at 206. The present case involves

entirely different circumstances;

plaintiff is a member of the armed forces

and her conduct, at the very least, has

an impact upon other soldiers. Justice

Blackmun's comments in Hardwick, whatever

their merit in the civilian world, are

clearly not applicable to a lesbian in

the military service. The privacy

expectations of a civilian, wherever

their outer limit may be, cannot be

compared to the substantially more

A-46

limited privacy expectations accompanying

military life. Plaintiff in the present

case voluntarily sacrificed much personal

privacy and liberty by deliberately

seeking to be in the Army where privacy

and liberty are necessarily at a premiun.

In a recent en banc case, Watkins v.

United States Army, 875 F.2d 699 (9th

Cir. 1989), the Ninth Circuit considered

a case somewhat similar to the present

case. The Watkins majority held that the

Army was equitably estopped from refusing

to reenlist Watkins on the basis of his

homosexuality because the Army had

overlooked his homosexuality in the past.

Estoppel was not made an issue in the

present case, although possibly it could

have been. Therefore, although we find

the Ninth Circuit's estoppel application

doubtful, we need not reach that issue.

Judge Norris, however, in a concur-

A-47-

rence joined by Judge Canby, would have

decided Watkins against the Army on equal

protection grounts. Judge Norris stated

that homosexuals are entitled to suspect

class protection. Discrimination against

homosexual orientation, he reasoned, is

“about as complete as one could imagine"

under the regulations. Watkins, 875 F.2d

at 716. Judge Norris disregarded

Hardwick because it was decided on due

process, not equal protection grounds.

Padula v. Webster, 822 F.2d 97 (D.c. Cir.

1987), was also considered by Judge

Norris. The Padula court rejected an

equal protection challenge to the FBI's

policy of not hiring homosexuals. That

holding was likewise rejected by Judge

Norris on the basis that the Padula court

summarily rested its decision on the

false premise that Hardwick foreclosed

any finding that homoxexuals are a

A-48

suspect class. We, however, find no

fault with Padula and believe its equal

protection reasoning to be as applicable

to the Army as to the FBI.

Judge Norris further rejcted the

Army's asserted justifications because he

explained that they illegitimately cater

to private biases. Watkins, 875 F.2d at

728. We respectfully disagree, as we

believe that this particular classifica-

tion is supported by military considera-

tions and should be left to the Army. We

do not believe that the concerns set

forth in the military policy and regula-

tion can be so easily dismissed as mere

prejudice, though individual prejudice no

doubt exists in the military and else-

where. The new regualtion, we find,

Clearly promotes a legitimate government

interest sufficient to survive rational

basis scrutiny. We agree with Judge

A-49

Hall, who wrote in dissent in Watkins,

that “"[(tj)here is no doubt that the

majority's intrusion into military

affairs, unjustified by important federal

interests, will have a disruptive effect

upon military discipline." Watkins, 875

F.2d at 736. We need not »nursue all the

equal protection avenues thoroughly

explored by Judge Norris in his concur-

rence as we find them unpersuasive in the

military context. On this controversial

subject unanimity is not to be expected

as respectable arguments may be made on

both sides of the issue.

Homosexuals have suffered a history

of discrimination and still do, though

possibly now in less degree. We do not

see, however, that the new regulation

embodies a gross unfairness in the

military context eo inconsistent with

equal protection as to be termed "“invidi-

A-50

ous." In these times homosexuals are

proving that they are not without growing

political power. It cannot be said "they

have no ability to attract the attention

of the lawmakers." Cleburne, 473 U.S. at

445. A political approach is open to

them to seek a congressional determina-

tion about the rejection of homosexuals

by the Army.? We are, however, unwilling

to substitute a mere judge-made rule for

the Army's regulation or to act in an

executive or legislative fashion.

Conclusion

| Gilligan v. Morgan, 413 U.S. 1

9Homosexuals are not without

political power. Time magazine reports

that one congressman is an avowed

homosexual, and that there is a charge

that five other top officials are known

to be homosexual. Carlson, How to Spread

a Sexual- Smear, Time, June 19, 1989, at

33. Support for homosexuals is, of

course, not limited to other homosexuals.

The Chicaago Tribune, on Monday, June 26,

1989, reported that the Mayor of Chicago

participated in a gay rights parade on

the preceding weekend.

A-5i

0 ey ee

(1973) arose out of tragic events in 1970

at Kent State University in Ohio. The

issue On appeal concerned the training,

weaponry, and orders in the Ohio National

Guard. Although Gilligan may be a much

Clearer case than the present one,

Gilligan plainly sets forth the general

policy for courts to follow in approach-

ing military matters:

It would be difficult to think

of a clearer example of the

type of governmental action

that was intended by the

Constitution to be left to the

political branches directly

responsible--as the Judicial

Branch is not--to the electoral

process. Moreover, it is

difficult to conceive of an

area of governemntal activity

in which the courts have less

competence. The complex,

subtle, and professional

decisions as to the composi-

tion, training, equipping, and

control of a military force are

essentially professional

military judgments, subject

always to civilian control of

the Legislative and Executive

Branches. The ultimate respon-

sibility for these decision is

appropriately vested in

A-52

branches of the government

which are periodically subject

to electoral accountability.

It is this power of oversight

and control of military force

by elected representatives and

officials which underlines our

entire constitutional systen...

413 U.S. at 10. We find these princi-

ples, though the facts are considerably

different, nevertheless to be as applic-

able to the present case as they were in

Gilligan, and we have sought to apply

then.

This case accordingly is reversed

and remanded to the district court for

the vacation of any contaempt order

against the Army that may remain, for

dissolution of the permanent injunction,

and for dismissal of the case. fhe Army

shall be at liberty to apply its current

regulation to plaintiff's conditional

reenlistment in accordance with this

opinion. The parties shall bear their

respective costs.

A-53

REVERSED AND REMANDED.

A true Copy:

Teste:

Clerk of the United States

Court of Appeals for the

Seventh Circuit

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

MIRIAM BenSHALOM,

Plaintiff,

Ve Case No. 88-C-468

JOHN O. MARSH, JR.,

Secretary of the U.S. Army;

COMMANDING OFFICER H.Q.,

84th Division, U.S. Army Reserve;

COMMANDING OFFICER 5091st

U.S. Army Reception Battalion,

Defendants.

DECISION AND ORDER

Sergeant Miriam BenShalom has filed

this action seeking to have declared as

unconstitutional the Army Reserve

Regulation, AR 140-111, Table 4-2, that

bars reenlistment to any serviceperson

who declares himself or herself to have a

homosexual orientation. Sergeant Ben-

Shalom is a self-declared lesbian who, on

the basis of that declaration, was denied

reenlistment by the Army Reserves. The

matter is before the court on cross

A-55

motions for summary judgment. For

reasons stated herein, the court finds

that Army Reserve Regulation AR 140-111,

Table 4-2, violates the plaintiff's first

and fifth amendment rights and, there-

fore, is constitutionally void on its

face.

BACKGROUND

The facts are uncontested, Sergeant

BenShalom enlisted in the Army Reserve in

November 1974. At various times during

her enlistment, she publicly acknowledged

that she is a lesbian. On December 1,

1976, she was discharged solely because

of her status as a person with a homosex-

ual orientation.

The discharge was effectuated under

Army Reserve Regulation AR 135-178, b7-

56(E), which allowed for the discharge of

any soldier who “evidences homosexual

tendencies, desire, or interest, but is

A-56

iene

without overt homosexual acts." There

was no proof that Sergeant BenShalom had

engaged in homosexual acts or had done

anything that could be interpreted as a

homosexual advance toward another female

soldier. By all indications, Sergeant

BenShalom was an excellent soldier with

an exemplary military record.

Sergeant BenShalom successfully

brought a mandamus action seeking

reinstatement. Another branch of the

district court held that the army

regulations then at issue violated her

first amendment rights of free speech and

association as well as her constitution-

ally protected right to privacy. Ben-

Shalom v. Secretary of Army, 489 F. Supp.

964, 976 (E.D.Wis. 1980) (hereafter

BenShalom I). Vindication, however, was

slow in coming. As late as August 1987,

seven years after the district court

A-5/7

rae

ordered reinstatement, the Army resisted

the reinstatement on the ground that the

original regulations under which she had

been discharged had been reworded. In

ordering her reinstatement, the court of

appeals for the seventh circuit stated:

When Benshalom is returned to

the Army, the Army is prohib-

ited from discriminating

against her because she

professes to be a lesbian...A

change in the Army regulations,

which the Secretary now claims

would prohibit BenShalom from

serving in the Reserves, cannot

alter the right of BenShalom

which was established in Judge

Evans' 1980 opinion.

BenShalom v. Secretary of Army, 826 F.2d

722, 724 (7th Cir. 1987).

Sergeant BenShalom was finally

reinstated in September 1987, almost

eleven years after she had been unconsti-

tutionally discharged. Her enlistment

period was due to expire on August ll,

1988, and she timely requested reenlist-

ment for a six-year term; that request

A-58

was denied on April 7, 1988. The revised

regulations which the Army applied to bar

her reenlistment made the status of

homosexual a "“nonwaivable moral and

administrative disqualification." AR

140-ill, Table 4-2. Sergeant BenShalom

was denied reenlistment on the basis of

the same earlier verbal declarations that

had previously been the cause of her

unlawful discharge.

Sergeant BenShalom filed the instant

lawsuit on May 3, 1988. In an effort to

preserve the status quo pending resolu-

tion of this action, she also filed a

motion for a preliminary injunction. The

motion was granted on August 3, 1988, and

the Army was directed to consider

Sergeant BenShalom's reenlistment without

regard to her sexual orientation. In

response to this court's August 3, 1988;,

order, the Army considered Sergeant

A-59

ail

BenShalom's reenlistment request without

regard to her sexual orientation and

determined that she otherwise satisfies

all criteria for reenlistment. Never-

theless, the Army refused to reenlist

her; instead, they chose to extend her

prior enlistment. After being adjudged

in contempt of court on September 1,

1988, the Army finally reenlisted

Sergeant BenShalom pending the outcome of

this case.

The uncontested factual situation

today is very similar to that of 1980.

The only real differences are the

rewording of the regulations at issue and

the fact that Sergeant BenShalom was

denied reenlistment instead of being

discharged. The basic policy remains the

same: the Army considers those people

with the status of having a homosexual

orientation to be incompatible with

A-60

rere eeenel

military service because the Army

believes such people, by their state-

ments, demonstrate a propensity to engage

in homosexual conduct. Today, as in

1980, there is no allegation that

Sergeant BenShalom has engaged in or

attempted to engage in homosexual conduct

of any type.

The Army regulation in question

contains a list of numerous "nonwaivable

moral and administrative disqualifica-

tions" to reenlistment. In that context,

Table 4-2 of AR 140-111 places homosexu-

ality in the following category:

Rule €E: Disqualification:

Questionable moral character,

history of antisocial behavior,

sexual perversion, homosexual-

ity (includes an individual who

is an admitted homosexual but

as to whom there is no evidence

that they have engaged iin

homosexual acts either before

or during military service, or

has committed homosexual acts),

or having frequent difficulties

with law enforcement agencies.

(see note l.)

A-61

The regulation defines a homosexual as

“an individual, regardless of sex, who

desires bodily contact between persons of

the same sex, actively undertaken or

passively permitted, with the intent of

obtaining or giving sexual gratification.

Any official, private, or public profes-

sion of homosexuality may be considered

in determining whether an individual is

an admitted homosexual." AR 140-111,

Table 4-2, note 1. A homosexual act is

defined as “bodily contact between

persons of the same sex, actively

undertaken or passively permitted, with

the intent of obtaining or giving sexual

gratification, or any proposal, solicita-

tion or attempt to perform such an act."

Id.

The regulation in question defines a

homosexual on the basis of one's sexual

desires. Neither the actual commission

A-62

——

of a homosexual act nor the intent to

commit one is an element of the defini-

tion. If a person, such as Sergeant

BenShalom, has the status of having a

homosexual orientation and that person

engages in speech which discloses or

otherwise acknowledges that status, then

that person is subject to an automatic,

nonwaivable disqualification to reenlist-

ment, regardless whether that person has

engaged in or intends to engage in actual

homosexual conduct.

The regulation also includes the

following caveat:

Individuals who have been

involved in homosexual acts in

an apparently isolated episode,

stemming solely from immatur-

ity, curiosity, or intoxica-

tion, and absent other evidence

that the individual is a

homosexual, normally will not

be excluded from service.

AR 140-lll, Table 4-2, note l.

It follows that the regulation iin

A-63

question does not penalize the commission

of homosexual acts per se. If a person

with a heterosexual orientation engages

in homosexual conduct, that person can

avoid the consequences of AR140-111 upon

proof of his or her heterosexual orienta-

tion. In other words, status based on

heterosexual orientation may be a defense

to the commission of homosexual acts, and

a person with a heterosexual orientation

may engage in conduct which is prohibited

on the part of a person with a homosexual

orientation.

THE FIRST AMENDMENT

The plaintiff argues that AR140-111,

Table 4-2 has the effect of chilling her

freedom of expression because if the

regulation is enforced, she will no

longer be able to make statements

regarding her sexual orientation,

statements which would otherwise be

A-04

perfectly legal. In this regard, she

points to her earlier case, BenShaion I,

wherein she successfully challenged her

prior discharge for making the same

statements at issue in the instant case.

The Secretary argues that Sergeant

BenShalom's statements about her sexual

orientation are not protected expres-

sions. Rather, the statements are

admissions that she falls within a

Classification of people whose presence

in the Army is properly deemed to be

incompatible with military service. The

Secretary states that "the regulation

simply bars from reenlistment any

servicemembers who engage, have engaged,

or likely will engage, in sexual conduct

that Congress has criminalized, see 10

US.C. §925 (sodomy), and that the

military has deemed is incompatible with

the military mission." Defendants'

A-65

Memorandum in Support of its Motion at

24~25. The Secretary concludes that the

regulation "protect[s] a substantial

Government intexaat unrelated to the

suppression of free expression." Brown

v. Glines, 444 U.S. 348, 354 (1979). The

Secretary asserts that by acknowledging

that one has a homosexual orientation,

one admits that one is likely to engage

in criminal acts of sodomy, and there is

a substantial government interest in

preventing such criminal acts.

The Secretary further argues that

BenShalom I did not hold@ that Sergeant

BenShalom's first amendment rights were

violated by her discharge for statements

that she made about her sexual orienta-

tion. Rather, the secretary asserts that

the Army's previous regulation was struck

down under the first amendment over-

breadth doctrine. This contention is

A-66

unpersuasive and squarely contradicted by

Judge Evans' ruling in BenShalom [:

[Tjhe court ie empowered to

reinstate her on the grounds

that the discharge violated her

First Amendment rights if the

restrictions imposed upon those

rights cannot be justified.

[citations omitted] As stated

in Perry v. Sindermann, supra:

"for at least a quarter-

century, this court has made

clear that even though a person

has no 'right' to a valuable

governmental benefit and even

though the government may deny

shim the benefit for any number

of reasons, there are some

reasons upon which the govern-

ment may not rely. It may not

deny a benefit to a person on a

basis that infringes his

constitutionally protected

interests -- especially, his

interest in freedom of speech.

]

halo , 489 F. Supp. at 972.

Judge Evans then made the reference to

the overbreadth doctrine as indicated by

the defendants, but added:

Nevertheless, the extremely

broad unconstitutional sweep of

this regulation is evidence by

the fact that one such as Ms.

BenShalom could unquestionably

A-67

be included within its sweep.

If the regulation sweeps so

broadly that it infringes on

First Amendment freedoms, it is

the “delicate and difficult

task" of the court to determine

whether the restrictions on

those freedoms can be tolera-

ted.

BenShalom I, 489 F. Supp. at 973.

Other courts have similarly interpreted

BenShalom I to have held that Sergeant

BenShalom's statements constitute

protected speech. BenShalom v. Secretary

of Army, 826 F.2d 722, 724 (7th Cir.

1987) ("The district court held in its

1980 opinion that BenShalom had a First

Amendment right to claim to be a les-

bian."); accord, Watkins v. Army, 847

F.2d@ 1329, 1334-35 (9th Cir. 1988), yeh'g

en banc ordered, 847 F.2d 1362 (9th Cir.

1988); Matthews v. March, No. 82-0216P,

slip op. at 18, 21 (D.Me. April 3, 1984);

but see Pruitt v. Weinberger, 625 F.

Supp. 625, 627 (C.D. Cal. 1987).

A-68

BenShalom I held that Sergeant

BenShalom's statements were protected

speech, and the Secretary may not be

heard now to assert the contrary.

Eilrich v. Remas, 839 F.2d 730, 633 (9th

Cir. 1988). However, the protection of

the first amendment in military life is

not coextensive with that of civilian

life. Parker v. Levy, 417 US. 733

(1974). Thus, we arrive at the crucial

questions: first, whether the regulation

protects a substantial government

interest; and second, whether the

regulation restricts speech no more than

is reasonably necessary to protect the

substantial government interest. Brown

v. Glines, 444 U.S. 348, 353-55 (1979).

Glines involved the on-base circula-

tion of a petition among service person-

nel in violation of an air force regula-

tion that required prior authorization

A-69

for distribution of written material by

the base commander. The substantial

government interests in Glines that

justified dilution of first amendment

protections in the military context were

the “overriding demands of discipline and

duty ... (which are) vital prerequisites

for military effectiveness." Glines, 444

U.S. at 354. The loss of control by a

base commander over written material

distributed to service personnel was held

to diminish his ability to avert poten-

tial disruptions and maintain internal

discipline. Glines, 444 US. at 357 Only

written materials that “pose[{d) a clear

danger to the good order of [the) troops"

were the tarqet of the regulation. Id.

The Secretary asserts that’ the

substantial government interests that are

protected by the regulation in the

instant case are the ability of the

A-70 |

eee

military to:

a. Maintain discipline, good

order and morale.

+ CE melee heer ate oe

b. Foster mutual trust and

confidence among service

members.

c. Insure the integrity of the

system of rank and command.

d. Facilitate assignment and

worldwide deployment of service

members who frequently must

live and work under close

conditions affording minimal

privacy.

e. Recruit and retain members

of military service.

f. Maintain the public

acceptability of military

service.

g. Prevent breaches of

security.

AR 135-178, bl0-2.

There can be no serious question that the

foregoing government interests are

substantial. Certainly they constitute

"vital prerequisites for military

effectiveness." Glines, 444 US. at 354.

Thus, the first part of the test, as

A-71

stated in Glines, is satisfied to the

extent that the Secretary has invoked

substantial government interests.

The question, therefore, narrows to

whether the regulation sweeps more

broadly than is reasonably necessary to

protect the asserted government inter-

ests. The regulation is premised on the

following policy:

Homosexuality is incompatible

with military service. The

presence in the military

environment of persons who

engage in homosexual conduct,

or who by their statements

demonstrate a propensity to

engage in homosexual conduct,

seriously impair the acconm- |

plishment of the military |

mission. The presence of such |

members adversely affects the

ability of the service to

{accomplish the enumerated

government interests).

AR 135-178, bl0-2.

The policy as enunciated in AR 135-

178, pl0-2, targets two groups of people

for regulation: first, those who engage

A-72

in homosexual conduct and second, those

who by statements demonstrate a propen-

sity to engage in homosexual conduct. A

statement that acknowledges that one has

a homosexual orientation places on in the

second group even though there be no

additional evidence of propensity. This

is precisely what has happened to the

plaintiff herein. The inclusion of

persons who, by their statements,

acknowledge that they have a homosexual

orientation within the sweep of the

os So em Ree.

regulation causes the regulation to fail

the second part of the test enunciated in

Glines. In BenShalom I, Judge Evans

wrote:

Ms. BenShalom engaged in no

known homosexual activity. She

did not advocate homosexuality

to anyone while on duty. Her

homosexuality caused no

disturbances except in the

minds of those who chose to

prosecute her. In fact, the

record is clear that her sexual

preferences made no difference

se ie

A-/3

eee

to her immediate supervisors or

her students. The court is

satisfied from the record that

her sexual preferences had as

much relevance to her military

skills as did her gender or the

color of her skin. The broad

sweep of this regulation

substantially impinges the

First Amendment rights of every

soldier to free association,

expression, and speech.

BenShalom 1, 489 F. Supp. at 973-74.

The only legally significant

differences between the facts confronting

the court in BenShalom I and the facts

confronting us today is the rewording of

the regulation in question. In BenShalom

+ the regulation allowed for the

discharge of any soldier who “evidences

homosexual tendencies, desire, or

interest, but is without overt homosexual

acts." Id. at 969. The Secretary has

revised the regulation so that it no

longer affects those who evidence

"tendencies" or "interest" in homosexual-

ity. However, the regulation today

A-74

continues to affect those who by state-

ments that they have a homosexual

orientation acknowledge a “desire” for

homosexual conduct. Such a “desire,” in

the view of the Secretary, belies a

propensity to engage in actual homosexual

conduct. In this regard, Judge Evans

accurately observed:

Just as some heterosexuals

have, throughout human history,

chosen to forego sexual

activity for a variety of

reasons, it cannot be assumed

that all who have personalities

oriented toward homosexuality

necessarily engage in homosex-

ual conduct.

BenShalom I, 489 F. Supp. at 975.

Just as was the case in BenShalom I,

the court today “can see no detrimental

effect on any legitimate military

interest caused by a soldier who merely

“evidence” ... a... “desire or interest’

in most anything, including homosexuali-

ty." Id. at 974. The Secretary has

A-/5

offered the court ;no basis to support

the contention that acknowledgment of

status equals reliable evidence of

propensity. The court is asked to rely

on the “obvious connection" and to use

“commonsense.” In this context, the word

“commonsense” amounts to little more than

a euphemism for prejudice. The court

must decline to give such bias a sanctu-~

ary in our constitutional jurisprudence.

The regulation is facially violative of

the first amendment because it unreason-

ably chills the right to freedom of

speech of individuals such as the

plaintiff.

EQUAL PROTECTION

Sergeant BenShalom claims that her

fifth amendment right to equal protection

of the law is violated by Army Reserve

Regulation AR 140-lll, Table 4-2. She

argues that the regulation is subject to

A-/06

heightened scrutiny because homosexuals,

as defined by the status of having a

particular sexual orientation and absent

any allegations of sexual misconduct,

constitute a suspect class. A regulation

based on such a classification, she

argues, must fail because it is not

necessary to achieve a compelling state

end. Alternatively, Sergeant BenShalom

argues that the regulation fails ration-

ally to further a legitimate, articulated

state purpose.

The Secretary argues that homosex-

uals are not a suspect class. But in the

event that homosexuals are held to be a

suspect class, the Secretary contends

that the regulation does not violate the

equal protection clause because it

satisfies the test of heightened scrutiny

since it furthers compelling government

interests. Finally, the Secretary

A=}

asserts that the correct approach is to

uphold the -constitutionality of the

regulation under the traditional test of

deferential scrutiny because the regula-

tion rationally furthers several legiti-

mate state interests.

The equal protection clause of the

fourteenth amendment directs that no

state shall “deny to any person within

its jurisdiction the equal protection of

the laws." The equal protection clause

is made binding upon the federal govern-

ment by the fifth amendment's due process

clause, Bolling v. Sharpe, 347 U.S. 497,

498-99 (1953), and "fifth amendment equal

protection claims are treated precisely

the same as equal protection claims under

the fourteenth amendment." Weinberger v.

Wissenfield, 420 US. 636, 638 n.2 (1975).

It is a general rule that government

regulations will be presumed to be valid

A-78

Co me Ot RR, ee nt

under the equal protection clause as long

as the classification drawn by the

regulation “rationally furthers some

legitimate, articulated state purpose."

McGinnis v. Royster, 410 U.S. 263, 270

(1972). Under this deferential standard

of scrutiny, the classification is tested

for a general relationship to the

articulated state purpose, and it matters

not that an individual member of the

burdened class proves to be an exception.

Massachusetts Board of Retirement v.

Murgia, 427 U.S. 307, 310-11 (1975).

This judicial deference is grounded in a

constitutional presumption that "inprovi-

dent (classifications) will eventually be

rectified by the democratic processes."

Cleburne v. Cleburne Living Center, Inc.,

473 U.S. 432, 440 (1984).

When a regulation creates classifi-

cations based on race, alienage, or

A-79

national origin, judicial deference gives

way to heightened = scrutiny. These

classifications are considered suspect

because they are based on "factors which

are so seldom relevant to the achievement

of any legitimate state interest that

laws grounded in such considerations are

deemed to reflect prejudice and anti-

pathy." Cleburne, 473 U.S. at 440.

The debate over whether sexual

orientation constitutes a suspect of

quasi-suspect classification has been

blurred by a failure adequately to

differentiate between classifications

based on conduct and those based on

status. The regulation at issue in this

case creates a classification based

entirely on status. AR 140-111, Table 4-

2, cannot be characterized as a classifi-

cation based on conduct. The issue

before the court is whether homosexuals,

A-80

Se ene aod

defined by the status of having a

particular sexual orientation and absent

any allegations of sexual misconduct,

constitute a suspect or quasi-suspect

class.

In Bowers v. Hardwick, 478 U.S. 186

(1986), the Court held that there is no

constitutionally protected privacy right

to engage in consensual acts of homosex-

ual sodomy. The court of appeals for the

ninth circuit has noted that:

[A]lthough Hardwick held that

the due process clause does not

prevent states from criminaliz-

ing acts of homosexual sodomy

(cite omitted], nothing in

Hardwick actually holds that

the state may make invidious

distinctions when regulating

sexual conduct...

..-While it is not our role to

question Hardwick's concerns

about substantive due process

and specifically the right to

privacy, these concerns have

little relevance to equal

protection doctrine. The right

to equal protection of the laws

has a clear basis in the text

of the Constitution.

A-81

Watkins v. U.S. Army, 847 F.2d 1329,

11340, 1341 (9th Cir. 1988).

In Padula v. Webster, 822 F.2d 97,

102 (D.C. Cir. 1987), the court decided

that homosexuals were not a suspect or

quasi-suspect class "when defined as

persons who engage in homosexual con-

duct." The court was careful to stress

that the classification then’ under

scrutiny "focus({ed] only on homosexual

conduct, not homosexual status." Id.

The Padula court held that the Supreme

Court's decision in Hardwick foreclosed

efforts to make practicing homosexuals a

Suspect class. Padula, 822 F.2d at 103.

In an equal protection context,

Padula and Hardwick can only be reason-

ably construed as standing for the

proposition that classifications are not

subject to strict scrutiny when defined

by homosexual conduct that rises to the

A-82

ve Ss

A paseo

level of criminal sodomy. Doe v. Casey,

796 F.2d 1508, 1522 (D.c. Cir. 1986)

("(Hardwick] did not reach the difficult

issue of whether an agency of the federal

government can discriminate against

individuals merely because of sexual

orientation." (emphasis in the origin-

al). In Baker v. Wade, 769 F.2d 289, 292

(5th Cir. 1985), the court rejected an

equal protection claim challenging a

Texas statute that criminalized homosex-

ual sodomy. The court declined to hold

that homosexuals, defined by conduct,

constituted a suspect of quasi-suspect

class. Id. In denying a petition for

rehearing en banc, the court took care to

distinguish between conduct and status by

noting that "(t]he statute is directed at

certain conduct, not at a class of

people." Baker v. Wade, 774 F.2d 1285,

1287 (5th Cir. 1985).

A-83

In Watkins v. U.S. Army, 847 F.2d

1329, 1349 (9th Cir. 1988), reh'g en banc

ordered, 847 F.2d 1362 (9th Cir. 1988),

the court held that homosexuals consti-

tute a suspect class when defined by

status. The facts in Watkins are very

Similar to those in the instant case;

both cases involved essentially the same

army regulation that makes homosexuality

a nonwaivable bar to reenlistment.

Homosexuals have suffered a history

of purposeful discrimination. Justice

Brennan has noted that “homosexuals have

historically been the object of pernic-

ious and sustained hostility, and it is

fair to say that discrimination against

homosexuals is ‘likely ... to reflect

deep-seated prejudice rather than ...

rationality." Rowland v. Mad River Local

School District, 470 U.S. 1009, 1014

(1985) (dissenting from denial of cert.).

A-84

a a aha

Such hostility is evident in the very

pleadings in this case wherein homosexu-

als are analogized to kleptomaniacs and

arsonists. See Defendants' Memorandum in

Reply to Plaintiff's Brief in Opposition

to Motion to Dismiss, p. 10.

The Secretary has continuously

characterized homosexuals as a_e group

defined by the desire and intent to

engage in criminal acts of sodomy. Yet

not one shred of evidence as_ been

presented to the court to show that

homosexuals as a group share a compelling

desire to commit that particular form of

sexual conduct. The court is asked by

the Secretary to hold that homosexual

orientation is inherently intertwined

with a desire and intent to commit

criminal acts of sodomy. To do so is to

create a class based on prejudicial

notions of what homosexuals are _ sup-

A-85

posedly like. This type of discrimina--

tion, based on unsupported stereotypes,

is precisely the type of discrimination

that requires enhanced judicial scrutiny.

Cleburne, 473 U.S. at 44; High Tech Gays

v. Defense Indust. Sec. Clear. Off., 668

F. Supp. 1361, 1369 (N.D. Cal. 1987).

It is also clear that a class based

on homosexual orientation is defined by a

trait that bears no relationship to an

individual's ability to contribute to the

good of society. In Benshalom I, Judge

Evans held that:

(T)he record is clear that

{[BenShalom's}] sexual preferen-

ces made no difference to her

immediate supervisors or her

students. The court is

satisfied form the record that

her sexual preferences had as

much relevance to her military

skills as did her gender or the

color of her skin.

BenShalom I, supra, 489 F. Supp. at 973-

74; accord, Watkins, supra, 847 F.2d at

1346; High Tech Gays, supra, 668 F.Supp.

at 1369-70.

In only a very few communities do

homosexuals possess the political power

effectively to obtain redress fron

invidious discriminations in the politi-

cal arena. It is estimated that homosex-

uals constitute between 8% and 15% of the

population. Rowland v. Mad River Local

School District, 470 U.S. 1009, 1014 n.7

(1984) (Brennan J. dissenting from denial

of cert.). Homosexuals constitute a

discrete and insular group subject to

potential prejudicial political power.

Watkins, supra, 847 F.2d at 1348-49.

The court concludes that homosexuals

as defined by the status of having a

particular sexual orientation, constitute

a suspect class for the purposes of the

equal protection doctrine. However, it

is unnecessary for the court to subject

the classification to strict scrutiny

because the court finds that the classi-

A-87

fication fails even the most deferential

standard of review. The classification

is not rationally related to any articu-

lated legitimate government interest.

McGinnis v. Royster, 410 U.S. 263, 270

(1972).

The court recognizes that’ the

government interests articulated by the

Secretary are indeed compelling. The

problem is that none are rationally

advanced by an Army regulation which

distinguishes military personnel on the

basis of their sexual orientation. The

elimination of all soldiers with homosex-

ual orientations from the ranks of the

Army is not rationally related to the

advancement of any compelling government

interest. It has already been noted that

sexual orientation is a trait that bears

no relationship to an individual's

ability to perform or contribute to the

A-88

military, and it is not rational to hold

that there is a general relationship

between the trait upon which the classi-

fication is based and the advancement of

any of the articulated military inter-

ests.

The military does not have a

legitimate interest in the regulation of

sexual conduct of service personnel. It

is reasonable to say that regulation of

sexual behavior is rationally related to

each of the articulated government

interests. But such regulation must be

targeted at the conduct itself and cannot

be based on prejudicial stereotypes of

what people with certain orientations are

like.

The challenged regulation can

survive deferential scrutiny only if the

Secretary is correct in the assertion

that the status-conduct distinction is

A-89

bogus. The Secretary insists that the

regulation is aimed at conduct and that

we must presume a correlation between

orientation and conduct. I disagree.

In Baker v. Wade, 774 F.2d 1285,

1287 (Sth Cir. 1985), the court noted

that "(tjhough the conduct be the desire

of the bisexually or homosexually

inclined, there is no necessity that they

engage in it." In Cyr v. Walls, 439 F.

Supp. 697, 702 (N.D. Tex. 1977), the

court stated that it "can take notice of

the logical distinction between gay

individuals who simply prefer the

companionship of members of their own sex

and homosexual individuals who actively

practice homosexual conduct."

A prevailing party in any civil

action against the United States, or any

agency or any official of the United

States acting in his or her official

A-90

capacity, is entitled to a reasonable

attorney's fee unless the position of the

United States was substantially justified

or other conditions exist which would

make an award unjust. 28 U.S.C. §2412.

In the case at bar, the plaintiff is

Clearly the prevailing party in all

respects. It is equally clear that the

position taken by the United States was

not substantially justified. According-

ly, the plaintiff will be allowed 30 days

from the date of this decision and order

to serve and file her application for

fees and other expenses in accordance

with 28 US.C. §2412(B). The government

will be allowed 10 business days from the

date of the filing of the application to

serve and file its objections, if any

concerning the reasonableness of the

requested amount.

CONCLUSION

A-91

Therefore, IT IS ORDERED that the

defendants' motion for summary judgment

be and hereby is denied.

IT IS ALSO ORDERED that the piain-

tiff's cross motion for summary judgment

be and hereby is granted.

IT IS FURTHER ORDERED that Arny

Reserve Regulation AR 140-lll, Table 4-2,

be and hereby is declared unconstitu-

tional on its face.

IT IS FURTHER ORDERED that the

defendants be and hereby are directed to

continue Sergeant BenShalom's reenlist-

ment without regard to her sexual

orientation.

IT IS FURTHER ORDERED that the clerk

of this court enter judgment in favor of

the plaintiff, with costs.

Dated at Milwaukee, Wisconsin, this

10th day of January, 1989.

2s/ Myron L. Gordon

Senior U.S. District Judge

A-92

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

MIRIAM BenSHALOM,

Plaintiff,

Vv. Case No. 88-C-468

JOHN O. MARSH, JR.,

Secretary of the U.S. Army;

COMMANDING OFFICER H.Q.,

84th Division, U.S. Army Reserve;

COMMANDING OFFICER 509l1st

U.S. Army Reception Battalion,

Defendants.

DECISION AND ORDER

Sergeant Miriam BenShalom has filed

this action seeking to have declared as

unconstitutional the Army Reserve

Regulation, AR 140-1lll, Table 4-2, that

bars reenlistment to any serviceperson

who declares himself or herself to have a

homosexual orientation. Sergeant Ben-

Shalom is a self-declared lesbian who, on

the basis of that declaration, has been

denied reenlistment by the Army Reserves.

Her current enlistment contract expires

A-93

on August ll, 1988. In an effort to

preserve the status quo pending resolu-

tion of her action, Sergeant benShalom

has moved for a preliminary injunction.

For the reasons stated herein, I will

grant the motion.

The facts are uncontested. Sergeant

benShalom has an exemplary military

record, having received high training

scores and been honored with special

recognition at graduation ceremonies from

a so-called "Leadership Schaol." She has

on a number of occasions acknowledged

that she is a lesbian. However, there

are no allegations that Sergeant benSha-

lom has ever engaged in any prohibited

acts of homosexual conduct. The Army has

denied Sergeant benShalom reenlistment

exclusively on the basis of her acknow-

ledged status as a person of homosexual

orientation. Army Reserve Regulations AR

A-94

Wainy

140-111, Table 4-2, makes the status of

homosexuality a non-waivable disqualifi-

cation to reenlistment. Impermissible

homosexuality is defined so as to include

"an individual who is an admitted

homosexual but as to whom there is no

evidence that they have engaged in

homosexual acts either before or during

military service". Rule E, Table 4-2,

AR140-111.

The district court's exercise of

discretion in the issuance of a prelimin-

ary injunction is guided by four factors:

1) whether the movant has an adequate

remedy at law such that she will suffer

irreparable harm if the preliminary

injunction is denied; 2) whether the harm

to the movant outweighs the harm to the

opposing party if the injunction issues;

3) whether the movant has a reasonable

likelihood of success on the merits; and

A-95

4) whether the granting of a preliminary

injunction will disserve the _ public

interest. Adams v. Attorney Registration

and Disciplinary Commission, 801 F.2d

968, 971 (7th Cir. 1986). The applica-

tion of these four factors has been

described as a judicial effort to

minimize errors:

(T)he error of denying an

injunction to one who will in

fact (though no one can know

this for sure) go on to win the

case on the merits, and the

error of granting an injunction

to one who will go on to lose.

The judge must try to avoid the

error that is more costly in

the circumstances."

Roland Machinery Co. v. Dresser Indus-

tries, 749 F.2d 380, 388 (7th Cir. 1984).

The "likelihood of success on the

merits" factor is generally considered a

"threshold requirement." Adams, supra,

801 F.2d at 971. Sergeant benShalom has

asserted that both her first and fifth

amenment rights will be violated if she

A-96

a ics Dae bialache ma

is denied reenlistment simply as a result

of statements she has made acknowledging

her homosexual orientation. In the

opinion of this court, Sergeant benShalom

has made out a more than colorable claim

on both her first and fifth amendment

grounds and has thus satisfied this

requirement.

The Army argues that the entire

complaint is nonjusticiable because

"questions concerning the proper composi-

tion of the Armed Forces are best left to

military professionals." Judges are

indeed reluctant to interfere with the

military's exercise of discretion in the

administration of its personnel matters.

Mindes v. Seaman, 453 F.2d 197 (5th Cir.

1971); Pauls v. Secretary of Air Force,

457 F.2d 294 (1st Cir. 1972). However, a

court must not refuse to review a case in

which it appears that the military may

A-97

have violated the constitutional rights

of the plaintiff. benShalom v. Secretary

of Army, 489 F. Supp. 964, 971 (E.D. Wis.

1980).

In 1976, Sergenat benShalom was

discharged from the Army Reserves because

she made statements that she was a

lesbian. In 1980 it was held that the

Army Reserve regulations which authorized

that discharge violated her first

amendment rights of free speech and

association. benShalom v. Secretary of

Army, 489 F. Supp. at 973, 974.

The uncontested factual situation

today is very similar to that of 1960.

The only real differences are the

rewording of the regulations at issue and

the fact that Sergeant benShalom is being

denied reenlistment instead of being

discharged. The defendants contend that

the current regulations do not infringe

A-98

upon servicemembers' first amendment

associational rights, and therefore the

1980 holding is not applicable to this

case. However, the fact remains that in

1980 the court ruled that the plaintiff's

free speech rights had been violated by

her discharge for statements that she had

made about her sexual orientation, and

today she is being denied reenlistment

for those same statements.

As late as August 1987, seven years

after the Army was ordered to reinstate

the plaintiff, the Army resisted the

reinstatement on the grounds that the

original regulations under which the

plaintiff had been discharged had been

reworded. In ordering the Army finally

to reinstate the plaintiff, the court of

appeals for the seventh circuit stated:

When benShalom is returned to

the Army, the Army is prohibi-

ted from discriminating against

her because she professes to be

A-99

a lesbian.... A change in the

Army regulations, which the

Secretary now claims would

prohibit benShalom from serving

in the Reserves, cannot alter

the right of pbenShalom which

was established in Judge Evans'

1980 opinion.

benShalom v. Secretary of Army, 826 F.2d

722, 724 (7th Cir. 1987).

Based on the foregoing, I conclude that

the plaintiff has met her burden in

establishing a reasonable likelihood of

success on the merits of her first

amendment clain.

Sergeant benShalom's fifth amendment

equal protection claim presents this

court with a more novel question of law

not yet specifically resolved in this

circuit. The issue is whether homosexu-

als, defined by the status of having a

particular sexual orientation and absent

any allegations of sexual misconduct,

constitute a suspect class. The diver-

gence in case law on this issue is

A-100

demonstrated by the contrast in approach

between the courts of appeals for the

D.C. circuit and the ninth circuit.

In Padula v. Webster, 822 F.2d 97

(D.C. Cir. 1987), the court held that

homosexuals do not constitute a suspect

Class in part because it believed that

the Supreme Court's decision in Bowes v.

Hardwick, 478 U.S. 186 (1986), foreclosed

such a result. In Bowes, the Supreme

Court upheld as constitutional a Georgia

law criminalizing sodomy. The court

reasoned that "(ijt 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." Padula, supra, 822

F.2d at 103. Thus the court of appeals

for the D.C. circuit treated the classi-

fication of homosexuality as including

A-101

those persons who engage in sodomy and no

distinction was drawn between status and

conduct.

By contrast, in Watkins v. U.S.

Army, 837 F.2d 1428 (9th Cir. 1988), reh.

granted F.2d _ (9th Cir. June 8,

1988), the court decided that the status

of homosexuality did constitute a suspect

classification. In that case, under

facts similar to those in the instant

case, the court considered the various

factors that the Supreme Court has used

to define the characteristics of a

suspect class. These included whether

the class has suffered a history of

purposeful discrimination; whether the

Class is defined by a trait that bears no

relationship to an individual's ability

to perform or contribute to society;

whether the trait defining the class is

immutable; and finally, whether the class

A-102

is a discrete group subject to prejudi-

cial majoritarian political power.

In 1980 Judge Evans held that

"the record is clear that

[benShalom's] sexual preferen-

ces made no difference to her

immediate supervisors or her

students. The court is

satisfied from the record that

her sexual preferences had as

much relevance to her military

skills as did her gender or the

color of her skin."

benShalom, supra, 489 F. Supp. at 974.

This finding by Judge Evans and the fact

that the plaintiff's exemplary military

record has continued to be unaffected by

her sexual preference, lead me to

conclude that the plaintiff has demon-

strated at least a reasonable likelihood

cof establishing that the mere status (as

opposed to actual conduct) of homosexual-

ity is a trait that bears no relationship

to an individual's ability to perform or

contribute to the military. Similarly,

the Army regulations barring reenlistment

A-103

to those having the status of homosexual-

ity provide support for the applicability

of other indicia of suspectness such as

that of purposeful discrimination.

Whether or not the plaintiff has a

reasonable likelihood of success in

establishing homosexuality as a suspect

class depends on the viability of the

distinction between status and conduct.

The Army, taking the Padula approach,

would have this court conclude that

homosexuals are those “who engage, have

engagaed, or likely will engage, in

sexual conduct that Congress has crimin-

alized {sodomy)". In that regard, Judge

Evans concluded in 1980 that:

Just as some heterosexuals

have, throughout human history,

chosen to forego sexual

activity for a variety of

reasons, it cannot be assumed

that all who have personalities

oriented toward homosexuality

necessarily engage in homosex-

ual conduct.

A-104

—e ow =

Ce Bo om ee

benShalom, supra, 489 F. Supp. at 975.

At this early stage of proceedings, the

Army has offered the court no basis to

support its implicit fear that Sergeant

benShalom (because of her acknowledged

status) is likely to engage in criminal

sexual conduct; in fact the record today,

as in 1980, remains completely devoid of

any conduct allegations.

Even if the status-conduct distinc-

tion is insufficient to support the

establishment of the status of homosexu-

ality as a suspect Classification, the

plaintiff has demonstrated a reasonable

likelihood of success under the more

traditional deferential standard. Under

this standard the issue is whether the

challenged distinction rationally

furthers some legitimate, articulated

state purpose. McGinnis v. Royster, 410

U.S. 263, 270 (1972). Does an Army

A-105

regulation which distinguishes military

personnel on the basis of their sexual

orientation rationally advance some

articulated military purpose? The Arny

has expressed a number of such purposes:

maintenance of discipline, fostering

trust among personnel, integrity of the

system of rank and command, ease of

deployment often under conditions of

little privacy, recruitment and reten-

tion, maintenance of public acceptability

of the Army, and prevention of breaches

of security.

While each of these ends is cer-

tainly legitimate, the issue is whether

any is rationally furthered by the

regulation in question. The uncontested

facts in this case would seem to indicate

that Sergeant benShalom has been an

exemplary soldier who has the respect of

her peers and superiors. The ends which

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the Army purports to protect by denying

the plaintiff reenlistment would not seem

rationally served by her elimination from

the ranks. Unless such a rational rela-

tionship can be established it would

appear that Sergeant benShalom has a

reasonable likelihood of succes on the

merits, even under a standard of deferen-

tial scrutiny.

As to the remaining factors, the

court of appeals for the seventh circuit

has held that once the movant has demon-

strated the likelihood of success on the

merits, “the less heavily need the

balance of harms weigh in [her] favor."

Roland Machinery Co. v. Dresser Indus-

tries, 749 F.2d 380, 387 (7th Cir. 1984).

The plaintiff has cogently pleaded both

tangible and intangible harms if she is

discharged without being allowed to

reenlist. These include the loss of her

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first and firth amendment rights. "The

loss of First Amendment freedoms, for

even minimal period of time, unquestion-

ably constitutes irreparable injury."

Elrod v. Burns, 427 U.S. 349, 373 (1975);