Appendix — United States v. Watkins

IR

—

——

In the Supreme Court of the

OCTOBER TERM, 1989

UNITED STATES ARMY, ET AL., PETITIONERS

Vv.

SERGEANT PERRY J. WATKINS

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

APPENDIX

KENNETH W. STARR

Solicitor General

ANTHONY J. STEINMEYER

E. ROY HAWKENS

Altorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

TABLE OF CONTENTS

Appendix A (opinion of the court of appeals dated

PERO eae eae cre ne hee a mr

Appendix B (amended opinion of the court of ap-

I pe ier 2) a ey ang ae a ee Re

Appendix C (opinion of the court of appeals dated

RR cn ee ae a ag aw bad rears

Appendix D (Order of the district court dated

IEE igh eet co as cy 6 a cee ee alt weal ete

Appendix E (Order of the district court dated

MIS ee hea oy Pot ie cae EE oan ee ee

Appendix F (Memorandum and Order of the district

SPE Soe eerie ends

Appendix G (Rehearing Order of the coprt of appeals

BP o's Fh hee eae Cee ee

(1)

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 85-4006 ‘

D.C. No. C81-1065R

SERGEANT PERRY WATKINS, PLAINTIFF-APPELLANT

VS.

UNITED STATES ARMY, ET AL., DEFENDANTS-APPELLEES

[Filed May 3, 1989]

APPEAL FROM THE UNITED STATED DISTRICT

COURT FOR THE WESTERN DISTRICT OF

WASHINGTON

Before: Goodwin, Schroeder, Pregerson, Alarccn,

Nelson, Canby, Norris, Beezer, Hall, O’Scann-

lain, and Trott, Circuit Judges.

(1a)

2a

HARRY PREGERSON, Circuit Judge:

The United States Army denied Sgt. Perry J. Watkins

reenlistment solely because he is a homosexual. The Army

refused to reenlist Watkins, a 14-year veteran, even

though he had been completely candid about his homo-

sexuality from the start of his Army career, even though

he is in all respects an outstanding soldier, and even

though the Army, with full knowledge of his homosexual-

ity, had repeatedly permitted him to reenlist in the past.

The Army did so despite its longstanding policy that

homosexuality was a nonwaivable disqualification for re-

enlistment. The issue before the en banc court is whether

the Army may deny reenlistment to Watkins solely

because of his acknowledged homosexuality.

I. FACTUAL AND PROCEDURAL BACKGROUND!

In August 1967, at the age of 19, Perry Watkins was

drafted into the United States Army. In filling out the

Army’s preinduction medical form, he marked “yes” in

response to the question asking whether he had homosex-

ual tendencies. The Army nonetheless found Watkins

“qualified for admission” and inducted him into its ranks.

During Watkins’ initial three-year tour of military duty,

he served in the United States and Korea as a chaplain’s

assistant, personnel specialist, and company clerk. A year

after his induction, in 1968, Watkins signed an affidavit

stating that he had been a homosexual from the age of 13

' These facts are taken largely from this court’s opinion in Watkins

v. United States Army, 847 F.2d 1329, 1330-34 (9th Cir. 1988), as well

as from other prior opinions in this case. See 72! F.2d 687 (9th Cir.

1983); 551 F. Supp. 212 (W.D. Wash. 1982); 541 F. Supp. 249 (W.D.

Wash. 1982).

3a

and that, since his enlistment, he had engaged in sodomy

with two other servicemen, a crime under military law.

The Army, which received this affidavit as part of a

criminal investigation into Watkins’ sexual conduct, drop-

ped the investigation because of insufficient evidence.

When his first enlistment period expired in 1970, Wat-

kins received an honorable discharge, but his reenlistmertt

eligibility code was listed as “unknown.” In 1971, Watkins

requested correction of the reenlistment designation and

the Army corrected the code to category |, “eligible for re-

entry on active duty.” Shortly thereafter, he reenlisted for

a second three-year term. In 1972, Watkins was denied a

security clearance because of his homosexuality, and the

Army again investigated him for allegedly committing

sodomy and again terminated the investigation for insuffi-

cient evidence. Following another honorable discharge in

1974, the Army accepted Watkins’ application for a six-

year reenlistment. /

In 1975, the Army convened a board of officers to de-

termine whether Watkins should be discharged because of

his homosexual tendencies. On this occasion his com-

manding officer, Captain Bast, testified that Watkins was

“the best clerk I have known,” that he did “a fantastic

job—excellent,” and that Watkins’ homosexuality did not

affect the company. A sergeant testified that Watkins’

homosexuality was well-known but caused no problems

and generated no complaints from other soldiers. The four

officers on the board unanimously found that “Watkins is

suitable for retention in the military service” and stated,

“In view of the findings, the Board recommends that SP5

Perry J. Watkins be retained in the military service be-

cause there is no evidence suggesting that his behavior has

had either a degrading effect upon unit performance,

morale or discipline, or upon his own job performance.

da

SP5 Watkins is suited for duty in administrative positions

and progression through Specialist rating.” The board’s

recommendation became the final decision of the

Secretary of the Army.

In November 1977, the United States Army Artillery

Group (the USAAG) granted Watkins a security clearance

for information classified as “Secret.” His application for

a position in the Nuclear Surety Personnel Reliability Pro-

gram (the PRP), however, was initially reyected because

his records—specifically, his own admissions — showed

that he had homosexual tendencies. After this initial re-

jection, Watkins’ commanding officer in the USAAG,

Captain Pastain, requested that Watkins be requalified for

the position. Captain Pastain stated, “From daily personal

contacts I can attest to the outstanding professional at-

titude, integrity, and suitability for assignment within the

PRP, of SPS Watkins. In the 6 months he has been as-

signed to this unit SPS Watkins has. had no problems

what-so-ever in dealing with other assigned members. He

has, in fact, become one of our most respected and trusted

soldiers, both by his superiors and his subordinates.” An

examining Army physician concluded that Watkins’

homosexuality appeared to cause no problem in his work,

and the decision to deny Watkins a position in the Nuclear

Surety Personnel Reliability Program was reversed.

Watkins worked under a security clearance without inci-

dent until he again stated, in an interview on March 15,

1979, that he was homosexual. This prompted yet another

Army investigation which, in July 1980, culminated in the

revocation of Watkins’ security clearance. As the notifica-

tion of revocation makes clear, the Army based this revo-

cation on Watkins’ 1979 admission of homosexuality, on

medical records containing Watkins’ 1968 affidavit stating

that he had engaged in homosexual conduct, and on his

history of performing (with the permission of his com-

Sa

manding officer) as a female impersonator in various

revues. The Army did not rely on any evidence of homo-

sexual conduct other than Watkins’ 1968 affidavit. In Oc-

tober 1979, the Army accepted Watkins’ application for

another three-year reenlistment.

In 1981 the Army promulgated Army Regulation (AR)

635-200, chpt. 15, which mandated the discharge of all

homosexuals regardless of merit. Pursuant to this new dis-

charge regulation, another Army board convened to con-

sider discharging Watkins. Although this board explicitly

rejected the evidence before it that Watkins had engaged

in homosexual conduct after 1968, the board recommended

that Watkins be separated from the service “because he

has stated that he is a homosexual.” Major General Elton,

the discharge authority overseeing the board, approved

this finding and recommendation and directed that

Watkins be discharged.’

In May 1982, after the Army board voted in favor of

Watkins’ discharge, but before the discharge actually is-

sued, District Judge Rothstein enjoined the Army from dis-

charging Watkins on the basis of his statements admitting

his homosexuality. 541 F. Supp. at 259.? The district court

reasoned that the discharge proceedings were barred by the

Army’s regulation against double jeopardy, AR 635-200,

2? Major General Elton, on his own initiative, made an additional

finding that Watkins had engaged in homosexual acts with other sol-

diers. The district court ruled both that Major General Elton lacked the

regulatory authority to make supplemental findings, Watkins v. United

States Army, 541 F. Supp. 249, 259 (W.D. Wash. 1982), and that the

evidence presented at the discharge hearing could not support a specific

finding that Watkins had engaged in any homosexual conduct after

1968. Id. at 257. The Army has not contested either of these rulings,

and, on appeal, cites only Watkins’ 1968 affidavit as evidence of

homosexual conduct.

> Watkins had originally brought suit in August 1981 to have his

security clearance reinstated, alleging various constitutional violations.

6a

1-19(b), because they essentially repeated the discharge

proceedings of 1975. Id. at 258-59.

During oral argument before the district court, counsel

for the Army declared that if the Army were enjoined

from discharging Watkins, it would deny Watkins reenlist-

ment, pursuant to AR 601-280, 2-21(c),° when his current

tour of duty expired in October 1982.° This reenlistment

regulation, which was promulgated in 1981 along with the

discharge regulation AR 635-200, chpt. 15, is simply a

clarification of the earlier regulation which had always

made homosexuality a nonwaivable disqualification for

reenlistment. The district court nonetheless enjoined

Watkins’ discharge, and the Army fulfilled its promise by

rejecting Watkins’ reenlistment application “([b]Jecause of

self admitted homosexuality as well as homosexual acts.”

After receiving notice that discharge proceedings would be convened,

he amended his complaint in October to seek an injunction against his

discharge. The district court declined to reach the issue whether the

‘Army could revoke Watkins’ security clearance, reasoning that the

issue Was not yet ripe because Watkins had an administrative appeal

pending. See 541 F. Supp. at 259; see also Watkins v. United States

Army, 551 F. Supp. at 223. Watkins’ security clearance dispute is thus

not before us On appeal

* The district court held that the evidence could not support a tind-

ing that Watkins engaged in homosexual conduct subsequent to the

1975 discharge proceedings and that the Army’s double jeopardy pro-

vision barred the Army from basing Watkins’ discharge on statements

that merely reiterated what Watkins had stated in the 1975 discharge

proceedings —that he was homosexual. See 541 F. Supp. at 257-59.

> This reenlistment regulation, unlike the new discharge regulation,

is simply a clarification of the pre-198! reenlistment regulation.

Throughout Watkins’ 14 years in the Army, homosexuality was

always a nonwaivable disqualification for reenlistment.

® At that time, the regulation appeared at 2-24(c). However, for

convenience, this opinion will refer to all Army regulations by the

paragraph numbers used in the Army’s September 15, 1986 update,

unless a different date is explicitly noted.

we

ia

On October 5, 1982, the district court enjoined the

Army from refusing to reenlist Watkins because of his ad-

mitted homosexuality, holding that the Army was equit-

ably estopped from relying on the nonwaivable disqualifi-

cation provisions of AR 601-280, 2-21(c). Watkins v.

United States Army, 551 F. Supp. 212, 223 (W.D. Wash.

1982).’ The Army reenlisted Watkins for a six-year term

on November 1, 1982, with the proviso that the reenlist-

ment would be voided if the district court’s injunction

“were not upheld on appeal.

While the Army’s appeal of the district court injunction

was pending, the Army rated Watkins’ performance and

professionalism. He received 85 out of 85 possible points.

His ratings included perfect scores for “Earns respect,”

“Integrity,” “Loyalty,” “Moral Courage,” “Self-discipline,”

“Military Appearance,” “Demonstrates Initiative,” “Per-

forms under pressure,” “Attains results,” “Displays sound

judgment,” “Communicates effectively,” “Develops sub-

ordinates,” “Demonstrates technical skills,” and “Physical

fitness.” His military evaluators unanimously recom-

mended-that he be promoted ahead of his peers. The

Army’s written evaluation of Watkins’ performance and

potential stated:

99 66

SSG Watkins is without exception, one of the finest

Personnel Action Center Supervisors | have encoun-

tered. Through his diligent efforts, the Battalion Per-

sonnel Action Center achieved a near perfect process-

ing rate for SIPDERS transactions. During this

* This case does not involve a claim that courts can exercise general

review of the Army’s reenlistment decisions. Watkins does not seek a

judicial determination of the merits of his reenlistment application.

He merely seeks a judicial determination that the Army must consider

his reenlistment application on its merits without regard to his homo-

sexuality, See 551. F. Supp. at 218.

8a

training period, SSG Watkins has been totally reliable

and a wealth of knowledge. He requires no supervi-

sion, and with his “can do” attitude, always exceeds

the requirements and demands placed upon him. I

would gladly welcome another opportunity to serve

with him, and firmly believe that he will be an asset to

any unit to which he is assigned.

SSG Watkins should be selected to attend ANCOC

and placed in a Platoon Sergeant position [Rater’s

Evaluation of Watkins’ performance and potential. ]

SSG Watkins’ duty performance has been out-

standing in every regard. His section continues to set

the standard within the Brigade for submission of ac-

curate, timely personnel and financial transactions.

Keeping abreast of everchanging personnel regula-

tions and directives, SSG Watkins has provided

sound advice to the commander as well as to the sol- —

diers within the command. His suggestion to separate

S-1 and Personnel Action Center functions and to co-

locate the Personnel Action Center with the Company

Orderly Rooms was adopted and immediately resulted

in improved service by both offices. SSG Watkins’

positive influence has been felt throughout the Baittal-

ion and will be sorely missed.

SSG Watkins’ potential is unlimited. He has con-

sistently demonstrated the capacity to manage numer-

ous complex responsibilities concurrently. He = 1s

qualified for promotion now and should be selected

for attendance at ANCOES at the earliest opportu-

nity. [Indorser’s Evaluation of Watkins’ performance

and potential. ]

On appeal, a panel of this court reversed the district

court’s injunction. Watkins v. United States Army, 721

F.2d 687, 691 (9th Cir. 1983) [hereinafter Watkins I]. The

panel reasoned that the equity powers of the federal courts

9a

could not be exercised to order military officials to violate

their own regulations absent a determination that the regu-

lations were repugnant to the Constitution or to the mili-

tary’s statutory authority. Id. On remand, the district

court held that the Army’s regulations were not repugnant

to the Constitution or to statutory authority and accord-

ingly denied Watkins’ motion for summary judgment and

granted summary judgment in favor of the Army. Wat-

kins again appealed and a divided panel of this court re-

versed the district court’s ruling. The panel held that the

Army’s reenlistment regulations violate the constitutional

guarantee of equal protection of the laws because they dis-

criminate against persons of homosexual orientation and

because the regulations are not necessary to promote a le-

gitimate compelling governmental interest. Watkins v.

United States Army, 847 F.2d 1329, 1352-53 (9th Cir.

1988) [hereinafter Watkins II]. The full court granted

review to address the issues raised in Watkins I ® and

Watkins II. We hold that the Army is estopped from bar-

ring Watkins’ reenlistment on the basis of his homosexual-

ity. Accordingly, Watkins I no longer states the law of this

circuit. Moreover, it is unnecessary to reach the constitu-

tional issues raised in Watkins II.

* The law of the case doctrine does not, as the Army suggests, pre-

vent us from reconsidering the issues raised in Watkins I. See, e.g.,

Shimman vy. International Union of Operating Engineers, Local 18,

744 F.2d 1226, 1229 n.3 (6th Cir. 1984) (en banc) (“The law of the case

doctrine . . . does not impair the power of an en bance court to over-

rule any panel decision.”), cert, denied, 469 U.S. 1215 (1985); Van

Gemert Vv. Boeing Co., 590 F.2d 433, 436-37 n.9 (2d Cir. 1978) (en

bane) (aw of the case doctrine cannot immunize panel decisions from

review by the court en banc), aff'd 444 U.S. 472 (1980); cf. United

States v. Mills, 810 F.2d 907, 909 (9th Cir. 1987) (stating that law of

the case is a discretionary doctrine and declining to apply the

doctrine), cert. denied, 108 S. Ct. 107 (1987),

10a

Il. EXHAUSTION OF REMEDIES

Before considering Watkins’ estoppel claim, we must

determine the preliminary question whether Watkins has

exhausted available intraservice remedies. Watkins sub-

mitted a timely application for reenlistment to his com-

manding officer, Captain Scott, on July 26, 1982. Follow-

ing an interview with Watkins, Captain Scott denied his

reenlistment request on July 28, 1982 because of Watkins’

admitted homosexuality.? The Army’s position is that

Watkins is ineligible for reenlistment due to a nonwaivable

disqualification. Any further pursuit of intraservice

remedies would therefore be fruitless. See Watkins, 551 F.

Supp. at 217. As the district court stated, “This court will

not require plaintiff to exhaust futile remedies.” Id. at 218.

See Southeast Alaska Conservaton Council, Inc. v. Wat-

son, 697 F.2d 1305, 1309 (9th Cir. 1983) (“Exhaustion of

administrative remedies is not required where administra-

live remedies are inadequate or not efficacious, [or] where

pursuit’ Of administrative remedies would be a futile

gesture ...”). Because we find that Watkins has ex-

hausted all effective intraservice remedies, we now pro-

ceed to review the merits of his estoppel claim.

Hl. EQUITABLE ESTOPPEL

A. Reviewability

This circuit and others have noted that not all actions by

the military are reviewable in the courts. See Note,

‘Captain Scott also denied the reenlistment request because of

Watkins’ alleged retusal to answer questions concerning his homosex- °

uality or homosexual acts. The district court found that this ground

tor the denial of Watkins’ reenlistment request was totally unsup-

ported by the evidence and therefore only reviewed Watkins’ admitted

homosexuality as a ground tor denial of reenlistment. 551 F. Supp. at

217.

lla

“Judicial Review of Constitutional Claims Against the

Military,” 84 Colum. L. Rev. 387, 397-403 (1984). In

Mindes v. Seaman, 453 F.2d 197, 201 (Sth Cir. 1971), the

Fifth Circuit articulated a test for ascertaining whether a

particular internal military decision should be reviewed.

Mindes cautioned that a court should not review internal

military affairs in the absence of (a) an allegation of the

deprivation of a constitutional right, or an allegation that

the military has acted in violation of applicable statutes or

its own regulations and (b) exhaustion of available in-

traservice corrective measures. Id. If the plaintiff meets

both prerequisites, the court must weigh several factors to

determine whether to grant review. These factors are (1)

the nature and strength of the plaintiff's claim; (2) the

potential injury to the plaintiff if review is refused; (3) the

extent of interference with military functions; and (4) the

extent to which military discretion or expertise is involved.

Id.

We have adopted in part the Mindes test for judicial

reviewability of internal military affairs. See Wallace v.

Chappell, 661 F.2d 729, 733 n.4 (9th Cir. 1981), rev’d on

other grounds, 462 U.S. 296 (1983). In Wallace, we ap-

plied the Mindes factors to constitutional claims, but de-

clined to hold that the Mindes factors should be weighed

in considering nonconstitutional claims. We stated that

“[wje express no view as to whether the Mindes test should

govern federal nonconstitutional claims.” Id. at 733 n.5.'°

Because in this case the district court found in favor of

‘0 Some of our cases following Wallace v. Chappell have used lan-

guage indicating that an internal military decision is reviewable only

when the plainuff alleges a constitutional, statutory, or regulatory

violation. See Christotfersen v. Washington State Air National

Guard, 855 F.2d 1437, 1442 (9th Cir. 1988); Sandidge v. State of

Washington, 813 F.2d 1025, 1026 (9th Cir. 1987); Sebra v. Neville,

S01 F.2d 1135, 1141 (9th Cir. 1986); Khalsa v. Weinberger, 779 F.2d

1393, 1398 (9th Cir. 1985), reatPd 787 F.2d 1288 (1986). Because we

12a

Watkins on the nonconstitutional ground of equitable

estoppel, we are now faced with the question whether the

Mindes test is applicable to equitable estoppel.

In Watkins I, a panel of this court applied the Mindes

doctrine to hold, in effect, that the only issues that can be

reviewed in a suit against the military are claims that the

Constitution, a statute, or a regulation has been violated.

See Watkins v. United States Army (Watkins I), 721 F.2d

687, 690 (9th Cir. 1983). Watkins I, which no longer states

the law of this circuit, held that our district courts may not

use equitable estoppel principles to decide a case on its

particular facts when the application of a statute or regula-

tion is challenged as to one individual. Such an extension

of the Mindes reviewability doctrine to bar equitable relief

would improperly require cases against the military to be

decided on the broadest possible grounds rather than on

the narrowest. In this case, the panel’s decision in Watkins

I caused the district court and the three-judge panel to

reach constitutional issues when the case could have been

decided narrowly under the doctrine of equitable estoppel.

Accordingly, we conclude that the Mindes doctrine

should not be extended to bar equitable estoppel against

the military. The special factors that must be found before

equitable estoppel can be applied against the government

protect the same inte:ests that the Mindes test was de-

signed to protect. See Helm v. State of California, 722

F.2d $07, 509-10 (9th Cir. 1983) (applying the Mindes test

to a constitutional claim against the military but not ap-

plying it to an assertion of equitable estoppel). The Mindes

test was created to shield the military from unnecessary

disruption. The estoppel doctrine, like the Mindes test, ad-

dresses the concerns of comity, prudence, and deference.

2

hold that the Mindes doctrine does not apply to equitable estoppel

against the military, see intra, its limitations on reviewability are not

relevant here.

13a

To estop an agency of the government a court must find

affirmative misconduct by the government and must also

find that the government’s conduct will cause a serious in-

justice and that estoppel will not cause undue harm to the

public interest. Wagner v. Director, Federal Emergency

Management Agency, 847 F.2d 515, 519 (9th Cir. 1988)

(quoting Morgan v. Heckler, 779 F.2d 544, 545 (9th Cir.

1985)). The stringent requirements that must be satisfied

before the government will be estopped safeguard the mili-

tary from unjustified interference by the courts. Thus

where estoppel obtains, there is simply no need to apply

the reviewability factors of the Mindes test.

The facts of the instant case support this conclusion. To

estop the Army from denying Sgt. Watkins reenlistment

on the basis of his homosexuality would not disrupt any

important military policies or adversely affect internal mil-

itary affairs. It would simply require the Army to continue

to do what it has repeatedly done for fourteen years with

only positive results: reenlist a single soldier with an excep-

tionally outstanding military record.

B. Equitable Estoppel Against the Government

The Supreme Court has expressly left open the issue

whether estoppel may run against the government, refus-

ing to hold “that there are no cases in which the public in-

terest in ensuring that the Government can enforce the law

free from estoppel might be outweighed by the counter-

vailing interest of citizens in some minimum standard of

decency, honor, and reliability in their dealings with their

Government.” Heckler v. Community Health Services of

Crawford County, Inc. 467 U.S. 51, 60-61 (1984). It is well

settled, however, that the government may not be estopped

on the same terms as a private litigant. Id. at 60.

Our court has held that “ ‘where justice and fair play re-

quire it,’ estoppel will be applied against the govern-

l4a

ment....” Johnson v. Williford, 682 F.2d 868, 871 (9th

Cir. 1982) (quoting United States v. Lazy FC Ranch, 481

F.2d 985, 988-89 (9th Cir. 1973)).'! Our cases indicate that

the principles allowing estoppel against the government

also apply to the military when justified by the facts. See,

e.g., Helm v. State of California, 722 F.2d 507 (9th Cir.

1983); Jablon v. United States, 657 F.2d 1064 (9th Cir.

1981); Lavin v. Marsh, 644 F.2d 1378 (9th Cir. 1981).

Before the government will be estopped, however, two ad-

ditional elements must be satisfied beyond those required

for traditional estoppel.'? First, “[a] party seeking to raise

estoppel against the government must establish ‘affirmative

misconduct going beyond mere negligence’; even then, ‘es-

toppel will only apply where the government’s wrongful

act will cause a serious injustice, and the public’s interest

will not suffer undue damage by imposition of the liabil-

ity.” Wagner v. Director, Federal Emergency Manage-

ment Agency, 847 F.2d 515, 519 (9th Cir. 1988) (quoting

Morgan v. Heckler, 779 F.2d 544, 545 (9th Cir. 1985)).'3 In

'l ““INJo fewer than eight circuits ... have stated that there are

some circumstances in which the Government will be estopped. . .’”

Johnson, 682 F.2d at 871! (citations omitted).

'2 See infra section III(C) (discussing traditional estoppel).

'3 In Johnson, 682 F.2d at 871, we stated that estoppel may run

against the government even when the government acts in its sovereign,

as Opposed to its proprietary, capacity if the effects of estoppel do not

unduly damage the public interest. In Johnson, we further noted that

in Saulque v. United States, 663 F.2d 968, 976 (9th Cir. 1981), we

made the flat statement in dicta that the government may not be es-

topped when acting in its sovereign capacity. Id. at 871 n.1. We ex-

plained in Johnson that the facts of Saulque had not required an

examination of the applicability of the exception spelled out in Lazy

FC Rancy. Id. Thus Saulque does not preclude application of estoppel

against the government when it is acting in its sovereign capacity.

'Sa

the instant case, we must first determine whether the two

threshold requirements for estopping the government are

satisfied before deciding whether the traditional elements

of estoppel are present.

1. Affirmative Misconduct

There is no single test for detecting the presence of af-

firmative misconduct; each case must be decided on its

own particular facts and circumstances. Lavin v. Marsh,

644 F.2d at 1382-83 n.6. Affirmative misconduct does re-

quire an affirmative misrepresentation or affirmative con-

cealment of a material fact by the government, United

States v. Ruby Co., 588 F.2d 697, 703-04 (9th Cir. 1978),

cert. denied, 442 U.S. 917 (1979), although it does not re-

quire that the government intend to mislead a party. Jab-

ion v. United States, 657 F.2d at 1067 n.5. Finally, it is

well settled that the government is not bound by the unau-

thorized acts of its agents. Saulque v. United States, 663

F.2d at 976 (citing Utah Power & Light\Co. v. United

States, 243 U.S. 389, 409 (1917)); see also Federal Crop In-

surance Co. v. Merrill, 332 U.S. 380, 384 (1947).

Here, the Army affirmatively misrepresented in its offi-

cial records throughout Watkins’ fourteen-year military

career that he was qualified for reenlistment. On the one

occasion when the record was unclear, Watkins sought

clarification and his classification was immediately changed

from “unknown” to “eligible for reentry on active duty.”

During this entire fourteen-year period, the Army’s policy

was that homosexuality constituted a nonwaivable dis-

qualification for reenlistment. The Army has acknowl-

edged, both in its brief in Watkins II and at oral argument

before the en banc panel, that “[t}he 1981 regulations now

in effect [AR 601-280, 2-21], which expressly bar enlist-

ment or reenlistment of homosexuals, are regarded as a

clarification, and not a change, of Army policy.” Army’s

l6a

Brief in Watkins I at 6.'* Thus, the Army affirmatively

acted in violation of its own regulations when it repeatedly

represented that Watkins was eligible to reenlist, as well as

when it reenlisted him time after time.

This case is readily distinguishable from Lavin v.

Marsh, 644 F.2d 1378 (9th Cir. 1981), where we refused to

estop the Army from denying an Army Reserve officer’s

entitlement to pension benefits. In Lavin, the court found

that while the Army had failed to determine Lavin’s pen-

sion eligibility status or to counteract any misunderstand-

ing resulting from recruiters’ representations that benefits

would be available to Lavin, this conduct did not amount

to a “pervasive pattern of false promises” for which the

government could be estopped. Id. at 1383. The court rea-

soned that although the Army’s conduct was perhaps neg-

— ligent, the “mere failure to inform or assist does not justify

application of equitable estoppel.” Id. at 1384 (citing INS

v. Hibi, 414 U.S. 5, 8-9 (1973)). In addition, we stated that

persons dealing with the government assume the risk that

government agents may exceed their authority and provide

misinformation, and observed that “Lavin chose trust over

caution and he never attempted to confirm his eligibility.”

Id. at 1383.

In the present case, the Army’s conduct went far beyond

a mere failure to inform or assist. As the district court

noted, the Army did not stand aside while Watkins reen-

listed or accepted a promotion; it plainly acted affirma-

tively in admitting, reclassifying, reenlisting, retaining,

'* The earlier opinions in this case discuss the 1981 reenlistment

regulations as a policy change. See, e.g., Watkins I, 721 F.2d at

689-90. The change, however, went to discharge policy and not to en-

listment policy. After 1981, Army boards reviewing discharge cases

could no ionger make exceptions to the policy against retention of

homosexuals. The policy against enlistment or reenlistment of homo-

sexuals never provided for any exceptions.

17a

and promoting Watkins. 551 F. Supp. at 221. Further-

more, this case does not merely involve misinformation

provided by government agents. Rather, it involves on-

going active misrepresentations by Army officials acting

well within their scope of authority. “Without Army ap-

proval [Watkins] would not have been able to enter, re-

main or progress in the Army. The defendants point out

that reenlistment is exclusively the Secretary’s function.

Here he exercised his authority three times. . . . To satisfy

the element of affirmative misconduct the court need look

no turther.” Id.'>

2. Weighing the Injustice to Watkins against the Possibility of

Damage to the Public Interest

Even when affirmative misconduct has been shown, the

government cannot be estopped unless its acts also threaten

to work a serious injustice and the public’s interest will not

be unduly damaged by the imposition of estoppel. John-

'S {nthe district court, Watkins presented unrebutted evidence that

a forged entry had been made on his Reenlistment Data Card. The en-

try was falsified so that it appeared to have been made on July 29,

1981 at a reenlistment interview with Captain Rodger L. Scott, Wat-

kins’ immediate commanding officer. The torged entry indicated that

Watkins was not eligible for reenlistment due to his homosexuality.

The entry stated that Watkins was “pending discharge.” Watkins pro-

vided unrebutted testimony that this alleged interview never Occurred

and that an earlier entry, in the handwriting of Captain Scot, had

been erased. The erased entry was still legible and showed that ihe

Army had earlier found Watkins to be eligible for reenlistment. Wat-

kins’ testimony was corroborated by an unrebutted affidavit from a

Set. Michael Austin. The original entry provides additional evidence

ot the Army’s affirmative misconduct in continuing to tind Watkins

eligible tor reenlistment despite the Army’s awareness of his homosex-

uality. The erasure and the forged entry provide circumstantial evi-

dence of a consciousness of misconduct on the part of the Army and

an attempt to conceal that misconduct trom exposure.

18a

son, 682 F.2d at 871. This requirement involves a balanc-

ing of interests in individual cases. See Note, Equitable Es-

toppel of the Government, 79 Colum. L. Rev. 551, 551

(1979); see also, e.g., Johnson, 682 F.2d at 871-72 (where

a prisoner was erroneously paroled, his subsequent suc-

cessful reintegration into the community showed that his

continuation on parole release did not seriously threaten

the public interest. Furthermore, the frustration of the

prisoner’s expectation to continue, during good behavior,

on parole release would be a serious injustice); Gestuvo v.

District Director of INS, 337 F. Supp. 1093, 1102 (C.D.

Cal. 1971) (estopping INS from refusing to revalidate ap-

proval of an immigrant’s third preference classification

partly because “[a]ny disruption of the nation’s :mmigra-

ticn policies that might result from the admission of this

single individual into the country would, in short, be min-

iscule in comparison to the hardship to which he would be

subjected by a failure to estop the Service”).

The record in the instant case shows that Sgt. Watkins

has greatly benefitted the Army, and therefore the coun-

try, by his military service. Even the Army’s most recent

written evaluation of Watkins, completed during the

course of this legal action, contains nothing but the high-

est praise, describing Watkins’ duty performance as “out-

standing in every regard” and his potential as “unlimited.”

In addition, Watkins’ homosexuality clearly has not hurt

the Army in any way. In the words of an Army review

board, “there is no evidence suggesting that [Watkins’] be-

havior has had either a degrading effect upon unit per-

formance, morale or discipline, or upon his own job per-

formance.” As the district court aptly concluded:

The injury to plaintiff from having relied on the

Army’s approval of his military career — and being de-

nied it now —is the loss of his career. The harm to the

public interest if reenlistment is not prevented is non-

19a

existent. Plaintiff has demonstrated that he is an ex-

cellent soldier. His contribution to this Nation’s secu-

rity is of Obvious benefit to the public. Furthermore,

when the government deals “carefully, honestly and

fairly with its citizens,” the public interest is likewise

benefited.

551 F. Supp. at 223 (citation omitted).

C. Traditional Elements of Estoppel

Having concluded that this is a case in which estoppel

may be asserted against the government, we must now de-

cide whether the traditional elements of estoppel are pres-

ent. Traditional estoppel requires the following:

(1) The party to be estopped must know the facts;

(2) he must intend that his conduct shall be acted on

Or Must so act ihat the party asserting the estoppel has

a right to believe it is so intended; (3) the latter must

be ignorant of the true facts; and (4) he must rely on

the former’s conduct to his injury.

United States v. Wharton, 514 F.2d 406, 412 (9th Cir.

1975) (quoting United States v. Georgia-Pacific Corp.,

42] F.2d 92, 96 (9th Cir. 1970)). We adopt district judge

Rothstein’s thorough analysis of this question as follows.

1. Did the Army know the facts?

The district court recited the following as evidence that

the Army knew about Watkins’ homosexuality throughout

his entire military career.

At his preinduction physical examination in August

1967 plaintiff checked the box on his medical history

chart indicating that he had homosexual tendencies.

The examining psychiatrist apparently did not believe

plainutf and designated plainuft as qualified for admis-

sion. In November 1968 plainuft admitted his homo-

20a

sexuality to an Army Criminal Investigation Division

agent. Plaintiff was honorably discharged in May

1970 and his reenlistment code was listed as “un-

known.” Plaintiff requested correction of that code.

The Army reclassified plaintiff as eligible for reentry

on active duty, and in June 1971 plaintiff reenlisted

for three years. In January 1972 plaintiff was denied a

security clearance based on his 1968 admission -of

homosexuality. After another honorable discharge, in

March 1974 plaintiff reenlisted for a six year term. In

1975 plaintiff's commander initiated discharge pro-

ceedings against plaintiff for unsuitability due to

homosexuality. A four member board composed of a

Major, two Captains and a First Lieutenant heard

testimony establishing that plaintiff was homosexual.

Plaintiff's commander, Captain Albert J. Bast III

testified that plaintiff, who had told Bast he was

homosexual, was “the best clerk I have known.” First

Sergeant Owen Johnson testified that everyone in the

company knew plaintiff was homosexual and that

plaintiff's homosexuality had not caused any prob-

lems. As noted earlier, the board recommended reten-

tion. In November 1977 plaintiff was granted a

security clearance for information classified as

. “Secret.” Plaintiff then applied for a position in the

Nuclear Surety Personnel Reliability Program. Plain-

tiff was initially rejected because his medical records

reflected his homosexuality. Plaintiff appealed. His

commanding officer, Captain Dale. E. [Pastain],

wrote in support of plaintiff's appeal, requesting that

plaintiff be requalified notwithstanding plaintiff's

record. An examining physician concluded that plain-

tiff’s homosexuality caused no problems in his work.

The Army requalified plainuff for admission into the

2la

Program in July 1978. In October 1979 plaintiff re-

enlisted for three years.

551 F. Supp. at 220. Based on these undisputed facts, the

district court stated that the Army’s position that Army

personnel responsible for Watkins’ enlistment and reenlist-

ments did not know that he was homosexual was “patently

absurd.” Id. “For the Army to acknowledge that it is

aware of plaintiff's homosexuality when it comes to con-

ducting criminal investigations, holding discharge pro-

ceedings, and revoking security clearances, but maintains

that it is ignorant when four enlistments are at issue, sug-

gests bad faith.” Id. The district court concluded that the

Deputy Chief of Staff for Personnel, who is primarily re-

sponsible for Army reenlistment, cannot be deemed to be

unaware of the contents of Watkins’ personnel file. Id.

2. Did the Army Intend that Watkins Act in Reliance on its Con-

duct, or Did the Army Act so that Watkins Had a Right to

Believe the Army so Intended?

The district court found that this element of estoppel

was satisfied because, regardless of what the Army actual-

ly intended, Watkins had a right to believe the Army in-

tended him to rely on its acts. 551 F. Supp. at 221-22. The

district court rejected the Army’s contention that Watkins

had assumed the risk that his Army career weuld be dis-

continued at any time because of his homosexuality. Id. at

222. In light of Watkins’ candor from the beginning about

his homosexuality and the Army’s ongoing acts in viola-

tion of its regulations,'® the district court found that

“{tlaken together, Over a career spanning mow than 14

years, those acts amounted almost to a policy of ignoring

'© As the district court noted, the decisions to enlist, to reenlist, to

retain, and to promote a soldier are serious and well-considered deci-

sions by the military. Id.

22a

this servicemember’s homosexuality. As a matter of law,

the court concludes that the second element of plaintiff’s

estoppel claim has been satisfied.” Id.'’? See also Johnson,

682 F.2d at 872 (prisoner had right to believe, after his

parole computation erroneously had passed successfully

through eight administrative reviews, culminating in his

ultimate release on parole for fifteen months, that he

would remain on parole during good behavior).

3. Was Watkins Ignorant of the True Facts?

The district court stated that the “true fact” here is that

homosexuality is a nonwaivable disqualification for re-

enlistment to which the Army cannot grant exceptions.

551 F. Supp. at 222. The Army’s repeated waiver of this

disqualification makes it impossible for us to charge

Watkins with the knowledge that the disqualification was

in fact nonwaivable. Id. See Johnson, 682 F.2d at 872

(government’s active misadvice to prisoner regarding his

eligibility for parole prevented court from charging

prisoner with even constructive knowledge of proper

meaning of statute in question).

4. Did Watkins Rely to his Injury on the Army's Conduct Con-

cerning his Homosexuality?

Regarding this fourth element, the district court stated:

Tied up in litigation, less than six years from retire-

ment, having invested a total of more than 14 years in

the Army, it is not difficult to see that plaintiff has

relied to his injury on the many “green lights” he re-

‘* We emphasize that Watkins’ claim is not based on any alleged

right, contractual or otherwise, to reenlist in the Army. There is no

such right. Rather, he argues that the Army’s misconduct requires that

the Army be estopped from denying his eligibility for reenlistment on

the basis of his homosexuality.

23a

ceived trom Army representatives. Plaintiff

developed skills necessary for military employment

and refrained trom developing skills suitable for

civilian jobs. He worked more than 14 years toward a

retirement benefit that he could have sought else-

where. Had the Army refused plaintiff reenlistment in

the past, plaintiff would not have lost the opportunity

for civilian employment that would have brought him

to a point of equivalent achievement.

551 F. Supp. at 223. We agree with District Judge Roth-

stein that the four elements of traditional estoppel are

present in this case.

I<. CONCLUSION

This is a case Where equity cries Out and demands that

the Army be estopped trom retusing to reenlist Watkins

on the basis of his homosexuality. We therefore reinstate

the district court’s October 5, 1982 Order estopping the

Army trom relying on its reenlistment regulation, AR

601-280 2-24(c), as a bar to Sgt. Watkins’ reenlistment. See

551 F. Supp. at 223.'5

'S Our holding does not mean and should not be read to imply that

Watkins has a right to commit acts that Congress has declared illegal.

See Watkins, 551 F. Supp. at 225. We do nevertheless reiterate the

point made in the district court’s October 28, 1982 Order “that the Ar-

my cannot, consistent with the [district] court’s October 5 Order, use

plaintit?s homosexuality as an open door through which to probe for

possible misconduct, when it has no grounds to believe such mis-

conduct exists.” 551 F. Supp. at 225.

In addition, we note that the district court found that the Army’s at-

tempt to discharge Watkins in 1982 was barred by the Army’s regula-

tion against double jeopardy, AR 635-200, 1-19(b)(2), because the

1982 discharge proceedings essentially repeated the 1975 discharge

proceedings against Watkins. 541 F. Supp. at 257-58. The Army did

notappeal trom that judgment. Theretore, the Army may not attempt

3 ’ 24a

Our opinions in Watkins I and Watkins II are with-

drawn. The district court Order of June 17, 1985 is

vacated and the district court Order of October 5, 1982 is

AFFIRMED.

to discharge Watkins tor any alleged homosexual acts that were the

subject of past discharge proceedings or for any past or future state-

ments by Watkins acknowledging his homosexuality.

ho

a

>

WATKINS v. U.S. ARMY .

No. 85-4006

Canby, Circuit Judge, concurring:

I concur wholeheartedly in Judge Pregerson’s majority

opinion. My concurrence indicates no retreat,showever,

from my conviction that the Army’s discrimination against

Watkins because of his homosexual orientation denies him

equal protection of the laws. I joined Judge Norris’ elo-

quent opinion so holding in Watkins II, and I agree with

everything Judge Norris says today on the equal protec-

tion point. Because we are en banc, and the constitutional

issue is a recurring one, | think | may appropriately reach

it even though equitable estoppel may dispose of the case.

26a

WATKINS v. U.S. ARMY

No. 85-4006

Norris, Circuit Judge, concurring in the judgment:

I concur in the judgment requiring the Army to recon-

sider Sgt. Watkins’ reenlistment application without

regard to his homosexuality. I cannot join the majority’s

opinion, however, because I agree with the dissent that the

judgment cannot rest on the doctrine of equitable estop-

pel. The Supreme Court has declined to approve the in-

vocation of equitable estoppel against the government

even in cases where the facts are no less sympathetic than

the facts in Sgt. Watkins’ case. See, e.g., INS v. Miranda,

459 U.S. 14, 17-19 (1982) (per curiam) (reversing Ninth

Circuit decision equitably estopping INS from denying

resident status to alien spouse of citizen when petitioner

became ineligible during INS delay in processing applica-

tion); INS v. Hibi, 414 U.S. 5 (1973) (per curiam) (revers-

ing Ninth Circuit decision equitably estopping INS from

denying citizenship to Filipino war veteran); Montana v.

Kennedy, 366 U.S. 308, 314-15 (1961) (government not

estopped to deny citizenship to child of U.S. citizen born

while his mother was living abroad, even though govern-

ment official advised her that she could not return to the

U.S. to have her baby). Indeed, the Supreme Court has ex-

pressed uncertainty as to whether equitable estoppel can

ever be invoked against the government. See Heckler v.

Community Health Servs., 467 U.S. 51, 60-61 (1984). In

any event, I see no justification for invoking the doctrine

on the facts of this case.

In my view, Watkins is entitled to relief because the Ar-

my denied him the equal protection of the laws by dis-

charging and refusing to reenlist him solely on the basis of

27a

his homosexuality. Before addressing Watkins’ claim that

the Army’s regulations on homosexuality violate equal

protection, however, | must address Watkins’ non-consti-

tutional claim—that the Army’s discharge and reenlist-

ment regulations are arbitrary and capricious under the

Administrative Procedure Act, 5 U.S.C. 706(2)(a).! I re-

ject this claim because Watkins does not argue that the Ar-

my’s regulations on homosexuality themselves violate the

Administrative Procedure Act; rather he argues only that

the regulations are arbitrary as applied to the facts of his

case. Because he does not argue that the regulations on

their face are arbitrary or capricious, Watkins’ APA claim

must fail. See Watkins I, 721 F.2d at 690-91. -

I now turn to Watkins’ claim that the Army*s regula-

tions deny him equal protection of the laws in violation of

the Fifth Amendment.? Watkins argues that the Army’s

regulations constitute an invidious discrimination based

on sexual orientation.* To evaluate this claim I must en-

' Because I would grant Watkins the relief he seeks on the basis of

his equal protection claim, I need not address in this concurring opin-

ion Watkins’ other constitutional claims involving the free speech

clause, the petition clause, and the due process entrapment doctrine.

> The equal protection component of the Fifth Amendment imposes

precisely the same constitutional requirements on the federal govern-

ment as the equal protection clause of the Fourteenth Amendment im-

poses On state governments. See, e.g., Weinberger v. Wiesenfeld, 420

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

> In this opinion I use the term “sexual orientation” to refer io the

orientation of an individual’s sexual preference, not to his actual sex-

ual conduct. Individuals whose sexual orientation creates in them a

desire for sexual relationships with persons of the opposite sex have a

heterosexual orientation. Individuals whose sexual orientation creates

in them a desire for sexual relationships with persons of the same sex

have a homosexual orientation.

In contrast, | use the terms “homosexual conduct” and “homosexual

acts” to refer to sexual activily between two members of the same sex

28a

gage in a three-stage inquiry. First, | must decide whether

the regulations in fact discriminate on the basis of sexual

orientation. Second, I must decide which level of judicial

scrutiny applies by asking whether discrimination based

on sexual orientation burdens a suspect or quasi-suspect

class,* which would make it subject, respectively, to strict

or intermediate scrutiny. See City of Cleburne v. Cleburne

Living Center, 473 U.S. 432, 439-41 (1985). If the dis-

crimination burdens no such class, it is subject to ordinary

rationality review. Id. Finally, I must decide whether the

challenged regulations survive the applicable level of

scrutiny by deciding whether, under strict scrutiny, the

legal classification is necessary to serve a compelling

governmental interest; whether, under intermediate

scrutiny, the classification is substantially related to an im-

portant governmental interest; or whether, under ra-

tionality review, the classification is rationally related to a

legitimate governmental interest. See id.

whether their orientations are homosexual, heterosexual, or bisexual,

and we use the terms “heterosexual conduct” and “heterosexual acts”

to refer to sexual activity between two members of the opposite sex

whether their orientations are homosexual, heterosexual, or bisexual.

Throughout this opinion, the terms “gay” and “homosexual” will be

used synonymously to denote persons of homosexual orientation.

+ Discriminations that burden some despised or politically

powerless groups are so likely to reflect antipathy against those groups

that the classifications are inherently suspect and must be strictly

scrutinized. See, e.g., Plyler v. Doe, 457 U.S. 202, 216 n.14 (1982).

Such groups are generally termed “suspect classes.” The Supreme

Court has identified other groups whose history of past discrimination

entitles them to intermediate scrutiny protection under equal protec-

tion doctrine. Such groups are termed “quasi-suspect” classes. See

generally, Nowak, Rotunda & Young, Constitutional Law, Ch. 16, |,

at 593 (2d ed. 1983).

29a

I turn first to the threshold question raised by Watkins’

equal protection claim: Do the Army’s regulations dis-

criminate on the basis of sexual orientation? The portion

of the Army’s reenlistment regulation that bars homo-

sexuals from reenlisting states in full:

Applicants to whom the disqualification below apply

are ineligible for RA [Regular Army] reenlistment at

any time and requests for waiver or exception to

policy will not be submitted... .

c. Persons of questionable moral character and a

history of antisocial behavior, sexual pervision or

homosexuality. A person who has committed homo-

sexual acts or is an admitted homosexual but as to

whom there is no evidence that they have engaged i”

homosexual acts either before or during military serv-

ice is included. (See note I)... .

k. Persons being discharged under AR 635-200

for homosexuality... .

Note: 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 satisfaction, or any proposal, solicita-

tion, Or attempt to perform such an act. Persons who

have been involved in homosexual acts in an ap-

parently isolated episode, stemming solely from im-

maturity, curiousity [sic], or intoxication, and in the

absence of other evidence that the person is a homo-

sexual, normally will not be excluded from reenlist-

ment. A homosexual is a person, regardless of sex,

who desires bodily contact between persons of the

Same sex, actively undertaken or passively permitted,

with the intent to obtain or give sexual gratification.

Any official, private, or public profession of homo-

30a

sexuality, may be considered in determining whether

a person is an admitted homosexual.

AR 601-280, 2-21. Although worded in somewhat greater

detail, the Army’s regulation mandating the separation of

homosexual soldiers from service (discharge), AR

635-200, is essentially the same in substance.

5 AR 635-200 provides:

15-2 Definitions...

a. Homosexual means a person, regardless of sex, who

engages in, desires to engage in, or intends to engage in homo-

Sexual acts.

b. Bisexual means a person who engages in, desires to engage

in, Or intends to engage in homosexual and heterosexual acts.

c. A homosexual act means bodily contact, actively under-

taken or passively permitted, between soldiers of the same sex for

sexual satisfaction.

15-3 Criteria

The basis for separation may include preservice, prior service, or

current service conduct or statements. A soldier will be separated

per this chapter if one or more of the following approved findings

is made:

a. The soldier has engaged in, attempted to engage in, or

solicited another to engage in a homosexual act unless there are

further approved findings that —

(1) Such conduct is a departure from the soldier’s usual and

customary behavior; and

(2) Such conduct is unlikely to recur because it is shown,

for example, that the act occurred because of immaturity, intoxi-

cation, coercion, or a desire to avoid military service; and

(3) Such conduct was not accomplished by use of force,

coercion, or intimidation by the soldier during a period of

military service; and

(4) Under the particular circumstances of the case, the

soldier’s continued presence in the Army Is consistent with the in-

terest of the Army in proper discipline, good order, and morale;

and

3la

On their face, these regulations discriminate against

homosexuals on the basis of their sexual orientation.

Under the regulations any homosexual act or statement of

(5S) The soldier does not desire to engage in or intend to

engage in homosexual acts.

Note: To warrant retention of a soldier after finding that he or

she engaged in, attempted to engage in, or solicited another to

engage in a homosexual act, the board’s findings must specifically

include all five findings listed in atl) through (5) above. In mak-

ing these additional findings, boards should reasonably consider

the evidence presented. For example, engagement in homosexual

acts over a long period of time could hardly be considered “a

departure from the soldier’s usual and customary behavior.” The

intent of this policy is to permit retention only of nonhomosexual

soldiers who, because of extenuating circumstances (as demon-

strated by findings required by para 15-3a(1) through (5)) en-

gaged in, attempted to engage in, or solicited a homosexual act.

b. The soldier has stated that he or she is a homosexual or bi-

sexual, unless there is a further tinding that the soldier is not a

homosexual or bisexual. ;

c. The soldier has married or attempted to marry a person

known to be of the same biological sex (as evidenced by the exter-

nal anatomy of the person involved) unless there are further find-

ings that the soldier is not a homosexual or bisexual (such as,

where the purpose of the marriage or attempt to marry was the

avoidance or termination of military service).

AR 635-200, 15-2 & 15-3 (emphasis in original).

Although it is the Army’s refusal to reenlist Watkins because of his

homosexuality that is directly at issue, Watkins’ challenge to the Ar-

my’s regulation on discharge is relevant to this appeal for two reasons:

(1) persons being validly discharged for homosexuality at the time of

reenlistment, as Watkins was, cannot reenlist under 601-280 2-21(k);

(2) enjoining the Army to consider Watkins’ reenlistment application

without regard to his homosexuality will provide no effective relief if

he would be subject to mandatory discharge because of homosexuality

as soon as he was reenlisted. I thus consider Watkins’ challenge to the

constitutionality of the Army’s discharge regulation as well as its re-

enlistment regulation.

32a

homosexuality gives rise to a presumption of homosexual

orientation, and anyone who fails to rebut that presump-

tion is conclusively barred from Army service. In other

words, the regulations target homosexual orientation

itself. The homosexual acts and statements are merely rele-

vant, and rebuttable, indicators of that orientation.

In spite of these facial appearances, the Army argues

that its regulations target homosexual conduct rather than

orientation. I cannot agree. A close reading of the com-

plex regulations leaves no room for doubt that the regula-

tions target orientation rather than conduct.

Under the Army’s regulations, “homosexuality,” not

sexual conduct, is clearly the operative trait for dis-

qualification. AR 601-280, 2-21(c); see also AR 635-200,

15-l(a) (articulating the same goal). For example, the

regulations ban homosexuals who have done nothing more

than acknowledge their homosexual orientation even in

the absence of evidence that the persons ever engaged in

any form of sexual conduct. The reenlistment regulation

disqualifies any “admitted homosexual” —a status that can

be proved by “[a]ny official, private, or public profession

of homosexuality” even if “there is no evidence that they

have engaged in homosexual acts either before or during

military service.” AR 601-280, 2-21(c) & note; see also AR

635-200, 15-3(b). Since the regulations define a “homo-

sexual” as “a person, regardless of sex, who desires bodily

contact between persons of the same sex, actively under-

taken or passively permitted, with the intent to obtain or

give sexual gratification,” a person can be deemed homo-

sexual under the regulations without ever engaging in a

homosexual act. 601-280, 2-21(c) & note (emphasis

added); see also A.R. 635-200, 15-2(a) (same desire suffi-

cient to make one homosexual). Thus, no matter what

statements a person has made, and what conduct he or she

has engaged in, the ultimate evidentiary issue is whether he

33a

or she has a homosexual orientation. Under the reenlist-

ment regulation, persons are disqualified from reenlisting

only if, based on any “profession of homosexuality” they

have made, they are found to have a homosexual orienta-

tion. AR 601-280, 2-21(c) & note. Similarly, under the dis-

charge regulation a soldier must be discharged if “[t]he

soldier has stated that he or she is a homosexual or bi-

sexual, unless there is a further finding that the soldier is

not a homosexual or bisexual.” AR 635-200, 15-3(b) (em-

phasis added). In short, the regulations do not penalize all

statements of sexual desire, or even only statements of

homosexual desire; they penalize only homosexuals who

declare their homosexual orientation.

True, a “person who has committed homosexual acts” is

also presumptively “included” under the reenlistment

regulation as a person excludable for “homosexuality.”

AR 601-280, 2-21(c); see also AR 635-200, 15-3(a). But it is

clear that this provision is merely designed to round out

the possible evidentiary grounds for inferring a homo-

sexual orientation. The regulations define “homosexual

acts” to encompass any “bodily contact between persons

of the same sex, actively undertaken or passively per-

mitted, with the intent of obtaining or giving sexual

Satisfaction, or any proposal, solicitation, or attempt to

perform such an act.” AR 601-280, 2-21(c) & note; see also

AR 635-200, 15-2(c) & 15-3(a) (stating the same in slightly

different order). Thus, the regulations barring homo-

sexuals from the Army cover any form of bodily contact

between persons of the same sex that gives sexual satisfac-

tion—from oral and anal intercourse to holding hands,

kissing, caressing and any number of other sexual acts. In-

deed, in this case the Army tried to prove at Watkins’ dis-

charge proceedings that he had committed a homosexual

act described as squeezing the knee of a male soldier, but

failed to prove it was Watkins who did the alleged knee-

34a

Squeezing. Moreover, even non-sexual conduct can trigger

a presumption of homosexuality: The regulations provide

for the discharge of soldiers who have “married or at-

tempted to marry a person known to be of the same sex

. . . unless there are further findings that the soldier is not

a homosexual or bisexual.” AR 635-200, 15-3(c) (emphasis

added). With all the acts and statements that can serve as

presumptive evidence of homosexuality under the regula-

tions, it is hard to think of any grounds for inferring

homosexual orientation that are not included.® The fact

remains, however, that homosexual orientation, not

homosexual conduct, is plainly the object of the Army’s

regulations.

Moreover, under the regulations a person is not auto-

matically disqualified from Army service just because he

or she committed a homosexual! act. Persons may still

© In stark contrast to the breadth and focus of the regulations, the

only statute Congress has enacted regulating the private consensual

sexual activity of military personnel covers only sodomy, not other

forms of sexual conduct, and covers sodomy whether engaged in by

homosexuals or heterosexuals. 10 U.S.C. 925 (1982) provides:

(a) Any person subject to this chapter who engages in un-

natural carnal copulation with another person of the same or op-

posite sex Or with an animal is guilty of sodomy. Peneiration,

however slight, is sufficient to complete the offense.

(b) Any person found guilty of sodomy shall be punished as a

court-martial may direct.

Although the statute does not define “sodomy” or “unnatural carnal

copulation,” the statute does require proof of “penetration,” which

apparently limits sodomy to oral and anal copulation. See United

States v. Harris, 8 M.J. 52, 53-59 (C.M.A. 1979).

The Army has never made a finding that Watkins ever engaged in

an act of sodomy in violation of section 925. Indeed, the Army twice

investigated Watkins for allegedly committing sodomy in violation of

section 925 and had to drop both investigations because of “insuffi-

cient evidence.”

35a

qualify for the Army despite their homosexual conduct if

they prove to the satisfaction of Army officials that their

orientation is heterosexual rather than homosexual. To il-

lustrate, the discharge regulation provides that a soldier

who engages in homosexual acts can escape discharge if he

can show that the conduct was “a departure from the

soldier’s usual and customary behavior” that “is unlikely

to recur because it is shown, for example, that the act oc-

curred because of immaturity, intoxication, coercion, or a

desire to avoid military service” and that the “soldier does

not desire to engage in or intend to engage in homosexual

acts.” AR 635-200, 15-3(a). The regulation expressly

states, “The intent of this policy is to permit retention only

of nonhomosexual soldiers who, because of extenuating

circumstances engaged in, attempted to engage in, or

solicited a homosexual act.” Id. at note (emphasis in

original). Similarly, the Army’s ban on reenlisting persons

who have committed homosexual acts does not apply to

“[plersons who have been involved in homosexual acts in

an apparently isolated episode, stemming solely from im-

maturity, curiousity [sic], Or intoxication, and in the

absence of other evidence that the person is a homo-

sexual.” AR 601-280, 2-21 note. If a straight soldier and a

gay soldier of the same sex engage in homosexual acts be-

cause they are drunk, immature or curious, the straight

soldier may remain in the Army while the gay soldier is

automatically terminated. In short, the regulations do not

penalize soldiers for engaging in homosexual acts; they

penalize soldiers who have engaged in homosexual acts

only when the Army decides that those soldiers are actual-

ly gay.’

* This reading of the regulations is supported by the Army’s treat-

ment of Watkins himself. The only evidence that Watkins ever en-

gaged in homosexual conduct is a statement he made during a 1968

36a

In sum, the discrimination against homosexual orienta

tion under these regulations is about as complete as on

could imagine. The regulations make any act or statemen

that might conceivably indicate a homosexual orientatio1

evidence of homosexuality; that evidence is in tur

weighed against any evidence of a heterosexual orienta

tion. It is thus clear in answer to my threshold equal pro.

tection inquiry that the regulations directly burden the

class consisting of persons of homosexual orientation.

Ii

A

Before reaching the question of the level of scrutiny ap-

plicable to discrimination based on sexual orientation and

the question whether the Army’s regulations survive the

applicable level of scrutiny, I first address the Army’s

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

forecloses Watkins’ equal protection claim. In Hardwick,

the Court rejected a claim by 2 homosexual that a Georgia

Statute criminalizing sodomy deprived him of his liberty

without due process of law in violation of the Fourteenth

Amendment. More specifically, the Court held that the

investigation that he committed homosexual acts with two other serv-

icemen. When these two servicemen denied engaging in homosexual

acts with Watkins, the Army discontinued the investigation without

making a finding that Watkins had committed homosexual acts. The

Army did not decide to discharge Watkins (any deny him reenlist-

ment) until 1981. In the meantime, Watkins openly and repeatedly

acknowledged his homosexual orientation without admitting to any

homosexual acts. It strains credulity to think that the Army decided to

discharge Watkins and deny him reenlistment solely on the basis of his

contradicted statement in 1968 that he had committed homosexual

acts. Plainly it is Watkins’ homosexual orientation—rather than

evidence of any conduct —that explains the Army’s decision to end

Watkins’ Army career.

37a

constitutionally protected right to privacy —recognized in

cases such as Griswold v. Connecticut, 381 U.S. 429

(1965), and Eisenstadt v. Baird, 405. U.S. 438 (1972) — does

not extend to acts of consensual homosexual sodomy. See

id. at 190-96. The Court’s holding was limited to this due

process question. The parties did not argue and the Court

explicitly did not decide the question whether the Georgia

sodomy statute might violate the equal protection clause.

See id. at 196, n.8.?

The Army nonetheless argues that it would be “incon-

gruous” to hold that its regulations deprive gays of equal

protection of the laws when Hardwick holds that there is

no constitutionally protected privacy right to engage in

homosexual sodomy. Army’s Second Supp. Brief at 19. |

could not disagree more. First, while Hardwick does in-

deed hold that the due process clause provides no sub-

> Under the Court’s analysis, because the Constitution’s protection

of the right to privacy does not extend to homosexual sodomy, a judg-

ment by the state that sodomy is immoral provides a sufficiently ra-

tional basis for sodomy laws to satisty the requirements of substantive

due process. See Hardwick at 196.

* See also Hardwick, 478 U.S. at 201 (Blackmun, J., dissenting)

(Court “refused to consider” equal protection clause); Doe v. Casey,

796 F.2d 1508, 1522 (D.C. Cir. 1986), aff'd in part, rev’d in part sub.

nom, Webster v. Doe, 108 S. Ct. 2047 (1988) (“Although .. . the

Supreme Court’s recent decision in Bowers v. Hardwick [held] that

homosexual conduct is not constitutionally protected, the Court did

not reach the different issue of whether an agency of the federal

government can discriminate against individuals merely because of

sexual orientation.” (Footnotes omitted and emphasis in the

original.)); Swift v. United States, 42 FEP Cases (BNA) 787, 790

(D.D.C. 1987) (“this Circuit has declined to reach [Hardwick] as barr-

ing claims of discrimination based on sexual preference”); but cf.

Padula v. Webster, 822 F.2d 997 (D.C. Cir. 1987) (“reasoning in

Hardwick forecloses ... suspect class status for practicing homo-

sexuals”).

38a

stantive privacy protection for acts of private homosexual

sodomy, nothing in Hardwick suggests that the state may

penalize gays merely for their sexual orientation. Cf.

Robinson v. California, 370 U.S. 660 (1962) (holding that

state violated due process by criminalizing the status of

narcotics addiction, even though the state could criminal-

ize the use of the narcotics—conduct in which narcotics

addicts by definition are prone to engage). In other words,

the class of persons involved in Hardwick —those who

engage in homosexual sodomy — is not congruous with the

class of persons targeted by the Army’s regulations — those

with a homosexual orientation. Hardwick was a “conduct”

case; Watkins’ is an “orientation” case.'°®

Second, and more importantly, Hardwick does not

foreclose Watkins’ claim because Hardwick was a due

process, not an equal protection case.'' Although the

‘0 One commentator and one district court have already agreed with

Watkins II that the conduct-orientation dichotomy is a valid way of

distinguishing Watkins’ case from Hardwick. As Professor Sunstein

has written, “this feature [the conduct/orientation distinction] serves

to distinguish [Watkins from] Hardwick in a persuasive way... .”

Sunstein, Sexual Orientation and the Constitution: A Note on the

Relationship Between Due Process and Equal Protection, 55 U. Chi.

L. Rev. 1161, 1162 n. 9 (1988).

In BenShalom v. Secretary of Army, No. 88-C-468 (Jan. 10. 1989)

(LEXIS, U.S. Dist. 1989), the District Court for the Eastern District

of Wisconsin prevented the Army from denying reenlistment to

Sergeant BenShaiom under the same regulations Watkins challenges.

The district court based this decision on both the First Amendment

and the equal protection component of the Fifth Amendment. In

analyzing BenShalom’s equal protection claim, the district court

tracked the equal protection analysis of Watkins II, relying heavily on

the conduct/orientation distinction.

‘! Thus, whether the Army’s regulations are “conduct-based” or

“orientation-based,” Hardwick cannot be read to toreclose Watkins’

equal protection claim. Professor Sunstein agrees, noting that “Hard-

39a

Army acknowledges, as it must, that Hardwick does not

discuss equal protection explicitly, the Army nonetheless

argues that Hardwick’s discussion of due process has equal

protection implications. Specifically, the Army argues that

the Hardwick Court, in holding that the criminalization of

homosexual sodomy does not violate due process, decided

sub silentio that the criminalization of heterosexual

sodomy would violate due process. The Army concludes

from this that Hardwick is controlling precedent that the

government may discriminate against homosexuals with-

out violating equal protection.

Both the premise and the conclusion of the Army’s argu-

ment are mistaken. In the first place, Hardwick did not

decide sub silentio that heterosexual sodomy is constitu-

tionally protected: Indeed, the Court expressly refused to

take a position on whether heterosexual sodomy was pro-

tected by the due process clause.'? Second, even if we ac-

cept, arguendo, the Army’s premise that the Hardwick

Court drew a dist nction between homosexual sodomy and

heterosexual sodomy for due process purposes, such a

distinction under the due process clause would have no

bearing on whether the equal protection clause nonetheless

prohibits official discrimination against homosexuals. I

discuss these points in turn.

Implicit in the Army’s position is the proposition that

the Court in Hardwick somehow did decide that the due

process clause prohibits a state from criminalizing hetero-

Wick ... Was interpreted correctly in the majority opinion in

Watkins{II], and misread in ... Judge Reinhardt’s opinion in

Watkins[I]]. . . . [Because Hardwick involved due process rather than

equal protection], Watkins can be distinguished from Hardwick even

it the former decision were to be applied to a class of people including

some, many or all who engage in the conduct at issue in Hardwick.”

Sunstein, supra note 10, at 1162 & n.9.

'2 See Hardwick, 478 U.S. at 188 n.2.

40a

sexual sodomy. That is, the Army reads Justice White’s

opinion in Hardwick as extending the zone of privacy first

recognized in Griswold to heterosexual sodomy, thus

drawing a due process line between heterosexual and

homosexual sodomy. That reading of Hardwick flies

directly in the face of footnote 2, which expressly reserves

the question of the constitutionality of the Georgia’statute

as applied to heterosexual sodomy. See 478 U.S. at 188

n.2.'3 |

Even apart from the Court’s express reservation of this

question, the Army’s reading of Hardwick is untenable. |

see no basis for reading Hardwick as holding sub silentio

that a right to engage in heterosexual sodomy is “deeply

rooted in this Nation’s history and tradition” or “implicit

in the concept of ordered liberty” — which would be neces-

sary for heterosexual sodomy to qualify for due process

protection under Hardwick’s analysis.'* Note that when

the Court found the suggestion that homosexual sodomy

qualified for due process protection to be “at best,

facetious,” 478 U.S. at 194, it relied upon the historical

fact that sodomy was a criminal offense at common law,

under the laws of all 13 colonies, and, until 1961, under

the laws of all 50 states. 478 U.S. at 192-94. Note further

that the Court did not find it significant that these laws, as

Justice Stevens pointed out in his dissent, drew no distinc-

tion between homosexual and heterosexual sodomy. See

'5 “The only claim properly before the Court ... is Hardwick’s

challenge to the Georgia statute as applied to consensual homosexual

sodomy. We express no opinion on the constitutionality of the

Georgia statute as applied to other acts of sodomy.” Hardwick, 478

U.S. at 188 n.2 (emphasis added).

'+ See Hardwick, 478 U.S. at 191-92 (quoting Palko v. Connecticut,

302 U.S. 319, 325 (1937) and Moore v. East Cleveland, 431 U.S. 494,

503 (1977) (Opinion of Powell, J.)).

4la

478 U.S. at 214-15.'° They outlawed all acts of sodomy,

both homosexual and heterosexual.

In light of the historical record relied upon by the

Court, there is no way to read Hardwick as establishing

that heterosexual sodomy is “deeply rooted in this Nation’s

history and tradition” while homosexual sodomy is not. I

find it untenable, then, to interpret Hardwick as extending

due process protection to heterosexual conduct while

denying such protection to homosexual conduct. It is hard

to imagine that the Court in Hardwick intended to suggest

that acts of heterosexual sodomy implicate higher consti-

tutional values than acts of homosexual sodomy.

Even if, as the Army implicitly argues, Hardwick did in

fact extend constitutional protection to heterosexual

sodomy while denying it to homosexual sodomy, such a

differentiation between heterosexual and homosexual

sodomy for due process purposes would have no bear-

ing —none—on the entirely separate question whether of-

ficial discrimination against homosexuals violates the

equal protection clause. The relevant inquiry in equal pro-

tection jurisprudence is fundamentally different from the

relevant due process inquiry. The due process clause, as

the Court recognized in Hardwick, protects practices

which are “deeply rooted in this Nation’s history and tradi-

tion.” The equal protection clause, in contrast, protects

minorities from discriminatory treatment at the hands of

the majority. Its purpose is not to protect traditional

values and practices, but to call into question such values

'S See also Anne Goldstein, History, Homosexuality, and Political

Values: Searching for the Hidden Determinants of Bowers v. Hard-

wick 97 Yale L. J. 1073, 1084-85 (1988) (state laws relied upon by ma-

jority outlawed all sodomy, whether homosexual or heterosexual).

Moreover, Congress has no distinguished between heterosexual and

homosexual sodomy in proscribing acts of sodomy by members of the

armed forces. See supra note 6.

42a

and practices when they operate to burden disadvantaged

minorities. As Professor Sunstein puts it:

From its inception, the Due Process Clause has been

interpreted largely (though not exclusively) to protect

traditional practices against short-run departures.

The clause has therefore been associated with a par-

ticular conception of judicial review, one that’sees the

courts as safeguards against novel developments

brought about by temporary majorities who are in-

sufficiently sensitive to the claims of history.

The Equal Protection Clause, by contrast, has been

understood as an attempt to protect disadvantaged

groups from discriminatory practices, however deeply

engrained and longstanding. The Due Process Clause

often looks backward; it is highly relevant to the Due

Process issue whether an existing or time-honored

convention, described at the appropriate level of

generality, is violated by the practice under attack. By

contrast, the Equal Protection Clause looks forward,

serving to invalidate practices that were widespread at

the time of its ratification and that were expected to

endure. The two clauses therefore operate along dif-

ferent tracks.

Sunstein, supra note 10, at 1163.

The Supreme Couft did not decide in Hardwick —and

indeed has never decided in any case — whether discrimina-

tion against homosexuals violates equal protection. All

Hardwick decided is that homosexual sodomy is not a

practice so “deeply rooted in this Nation’s history and

tradition” that it falls within the zone of personal privacy

protected by the due process clause. It is perfectly con-

sistent to say that homosexual sodomy is not a practice so

deeply rooted in our traditions as to merit due process pro-

tection, and at the same time to say, for example, that

43a

because homosexuals have historically been subject to in-

vidious discrimination, laws which burden homosexuals as

a class should be subjected to heightened scrutiny under

the equal protection clause. Indeed, the two propositions

may be complementary: In all probability, homosexuality

is not considered a deeply-rooted part of our traditions

precisely because homosexuals have historically been sub-

jected to invidious discrimination. In any case, homosex-

uals do not become “fair game” for discrimination simply

because their sexual practices are not considered part of

Our mainstream traditions.

A hypothetical may help make the point. Suppose a city

passed a “single family occupancy” housing ordinance

allowing only members of the immediate, nuclear family

to live in the same house.'® Suppose further that a dis-

proportionate number of black families in the community

lived together in extended families that included, for ex-

ample, causins and grandparents.'’ Finally, suppose the

ordinary was motivated by a racially discriminatory pur-

pose.'® A black family challenging the ordinance could

raise a due process claim, arguing that the ordinance im-

permissibly intruded on “deeply rooted” family traditions.

In real life, the Court found such a due process claim per-

suasive.'? But suppose the Court had rejected the due

process claim. Suppose the Court had instead agreed with

the city of East Cleveland that the privacy interests pro-

tected by the Constitution do not include extended family

'© This example is loosely drawn from Moore v. City of East

Cleveland, 431 U.S. 494 (1977).

'7 See Moore, 431 U.S. at 509 (Brennan, J., concurring) (indicating

this was the case in East Cleveland).

'S | should make clear that this was not shown to be the case in

Moore. See 431 U.S. at 510 (Brennan, J., concurring).

'? See Moore, 431 U.S. at 505-06 (plurality opinion).

44a

relationships —that the due process clause does not “gi)

grandmothers any fundamental rights with respect |

grandsons.”?° In that event, the black family could sti

challenge the ordinance on equal protection ground:

arguing that the ordinance discriminated against black:

Could anyone seriously maintain that the Court’s hypc

thetical refusal to give due process protection to “extende

family” living would have any bearing on the blac

family’s equal protection claim? Of course not. And th

black family’s equal protection claim would be no les

viable even if the Court in the hypothetical had ruled tha

due process does protect the nuclear family (in the hypo.

thetical, the form disproportionately favored by the whites

in the community) but does not protect the extended fami-

ly (disproportionately favored by blacks).

The relationship between Hardwick and Watkins’ case is

exactly the same as the relationship between the due proc-

ess and equal protection claims in this hypothetical.

Whether homosexual conduct is protected by the due

process clause is an entirely separate question from

whether the equal protection clause prohibits discrimina-

tion against homosexuals. And in answering this latter

question, it makes no difference whether the Hardwick

Court intended to extend due process protection to hetero-

sexual conduct, but not homosexual conduct. In sum, the

equal protection question presented by Sgt. Watkins

simply is not answered—not in the slightest —by Hard-

wick.

The Army also argues that Hardwick’s concern “about

the limits of the Court’s role in carrying out its constitu-

tional mandate,” 478 U.S. at 190, should prevent courts

from holding that equal protection doctrine protects

homosexuals from discrimination. To be sure, the Court

70 See 431 U.S. at 500 (plurality opinion) (quoting city’s argument).

45a

in Hardwick justified its decision to cabin the right to

privacy largely by pointing to the problems allegedly

created when judges recognize -constitutiowal “rights not

readily identifiable in the Constitution’s text” and “having

little or no cognizable roots in the language or design of

the Constitution.” 478 U.S. at 191, 194. The Court

stressed its concern that such rights might be perceived as

involving “the imposition of the Justices’ own choice of

values on the States and the Federal Government” and that

this antidemocratic perception might undermine the legiti-

macy of the Court. Id. Finally, the Court expressed the

more specific concern abgut potential difficulties in de-

fining the contours of the right to privacy. See id. at

195-96.

Whatever one might think about the Hardwick Court’s

concerns about substantive due process in general and the

right of privacy in particular, these concerns have little if

any relevance to equal protection doctrine.?! The right to

equal protection of the laws has a clear basis in the text of

the Constitution. This principle of equal treatment, when

imposed against majoritarian rule, arises from the Con-

stitution itself, not frora judicial fiat. Moreover, equal

protection doctrine does not prevent the majority from en-

acting laws based on its substantive value choices. Equal

protection simply requires that the majority apply its

values evenhandedly. Indeed, equal protection doctrine

plays an important role in perfecting, rather than frustrat-

ing, the democratic process. The constitutional require-

ment of evenhandedness advances the political legitimacy

>i Professor John Hart Ely, for example, has severely criticized the

Supreme Court’s substantive due process analysis in Roe v. Wade, 410

U.S. 113 (1973), while at the same time expressing the view that

governmental classifications burdening homosexuals merit heightened

scrutiny under the equal protection clause. Compare J. Ely, Democ-

racy and Distrust 248 n.52 (i980), with id. at 162-64.

46a

of majority rule by safeguarding minorities from major

tarian oppression. The requirement of evenhandedne

also facilitates a representation of minorities in governmer:

that advances the operation of representative democracy.

Finally, the practical difficulties of defining the requir

ments imposed by equal protection, while not insignit

cant, do not involve the judiciary in the same degree

value-based line-drawing that the Supreme Court in Har¢

wick found so troublesome in defining the contours ¢

substantive due process. In sum, the driving force behin

Hardwick is the Court’s ongoing concern with the expat

sion of rights under substantive due process, not an ul

bounded antipathy toward a disfavored group.

The Army also relies upon Beller v. Middendort, 63

F.2d 788 (9th Cir. 1980), cert. denied, 452 U.S. 905 (1981

Hatheway v. Secretary of the Army, 641 F.2d 1376 (9t

Cir.), cert. denied, 454 U.S. 864 (1981), and DeSantis '

Pacific Tel. & Tel. Co., 608 F.2d 327 (9th Cir. 1979), t

argue that the Mwnth Circuit has already rejected the kin

of equal protection attack Watkins makes. In my view, th

equal protection question Watkins raises—whether th

Army’s regulation should be subjected to strict scrutin

because homosexuals constitute a suspect class—was n¢

addressed in any of these Ninth Circuit cases.

22 See generally J. Ely, supra note 21, at 101-02 (“unlike an ay

proach geared to the judicial imposition of ‘fundamental values,’ tl

representation-reinforcing [approach] ... is noi inconsistent wit

but to the contrary is entirely supportive of, the American system «

representative democracy. It recognizes the unacceptability of tl

claim that appointed and life-tenured judges are better reflectors «

conventional values than elected representatives, devoting itself i

stead to policing the mechanisms by which the system seeks to ensul

that our elected representatives will actually represent.”).

47a

The Army’s reliance on Beller is misplaced because

Beller, like Hardwick, is a substantive due process case,

not an equal protection case. In rejecting a substantive due

process challenge to Navy regulations providing for the

discharge of personne! who engaged in homosexual acts,

our court held in Beller that substantive due process re-

quired only the courts balance the governmental and in-

dividual interests at stake in a fashion similar to in-

termediate scrutiny. Beller, 632 F.2d at 805-12. As now-

Justice Kennedy’s carefully tailored opinion makes clear,

Beller’s appeal did “not require us to address the question

whether consensual private homosexual conduct is a fun-

damental right as that term is used in equal protection...

[and was] not presented to us as implicating a suspect or

quasi-suspect classification. . . . Substanrt#®e due process,

not equal protection, was the basis of the constitutional

claim, and we address the case in those terms.” Id. at 807.

Thus, Beller, like Hardwick, has no relevance to Watkins’

claim that the challenged governmental regulations dis-

criminate against a suspect class in violation of equal pro-

tection doctrine. See Sethy v. Alameda County Water

Dist., 545 F.2d 1157, 1159-60 (9th Cir. 1976) (en banc) (a

prior decision is not precedent on issues that were neither

raised by counsel nor‘ discussed in the opinion of the

court); Sakamoto v. Duty Free Shoppers, 764 F.2d 1285,

1288 (9th Cir. 1985) (same).

The Army’s reliance on Hatheway v. Secretary of the

Army, 641 F.2d 1376 (9th Cir.), cert. denied, 454 U.S. 864

(1981), is also misplaced. In Beller, our court reserved two

distinct equal protection questions: first, whether the

challenged regulations penalizing homosexual conduct

burdened the exercise of a fundamental or important

substantive right to engage in certain conduct; second,

Whether the challenged regulations discriminated against a

Suspect Or quasi-suspect class. As explained below, in

48a

Hatheway we clearly answered the first of these discret

equal protection questions. The Army argues, however

that Hatheway also decided the second question reserve;

in Beller —the question raised in Watkins’ claim — whethe

homosexuals constitute a suspect or quasi-suspect class.’

Hatheway, a soldier convicted of committing sodomy ir

violation of 10 U.S.C. 925, claimed that the Army wa:

prosecuting cases involving homosexual sodomy while

refusing to prosecute cases involving heterosexua

sodomy. Our court “understood Hatheway’s claim (tha

the commission of a homosexual act is an impermissible

basis for prosecution) to be an equal _ protectior

argument,” Hatheway, 641 F.2d at 1382, which we treatec

as resting on the branch of equal protection doctrine con

cerned with whether a governmental classification burden:

a fundamental or important substantive right to engage ir

certain conduct. Thus, we_ explicitly characterizec

Hatheway’s claim “that the commission of a nonsexual act

is an impermissible basis for prosecution” to be the sort o}

equal protection claim that “implicate[d] the ‘right to bs

free... from unwarranted intrusions into’ one’s

orivacy.’ ” 641 F.2d at 1382 (quoting Stanley v. Georgia

394 U.S. 557, 564 (1969)). We then reasoned that the in

terest at stake in Hatheway was similar to the substantive

interest at stake in Beller. 641 F.2d at 1382. Because ir

Beller we decided that under the due process clause the

right to engage in homosexual conduct merited “height.

ened solicitude,” but not strict scrutiny, in Hatheway we

>} Under equal protection doctrine, heightened scrutiny not onl

applies to legal classifications that burden suspect or quasi-suspec

classes but also applies to classifications that burden the exercise o

fundamental or important substantive rights to engage in certain con

duct. See, e.g., Plyler v. Doe, 457 U.S. 202, 216-17 & nn. 14-15 (1982)

Maher v. Roe, 432 U.S. 464, 470-78 (1977); L. Tribe, American Con

stitutional Law 16-7, at 1002-03, 16-31, at 1089-90 & n.1 (1978).

49a

e adopted this assessment for the purposes of our funda-

; mental rights equal protection analysis. Accordingly, we

| applied intermediate scrutiny to the Army’s actions and

r held that “the selection of cases involving homosexual acts

3 for Article 125 prosecutions” was permissible because such

1 prosecutions bore “a substantial relationship to an import-

$ ant government interest.” Id. Thus, we rejected Hathe-

> way’s claim based on an analysis of the fundamental rights

| branch of equal protection doctrine, the branch of equal

1 protection doctrine upon which Watkins does not rely.

> The Army argues that Hatheway should nonetheless be

read as having decided the suspect class question. In sup-

port of this argument, the Army relies upon a single

;, sentence in a footnote—the opinion’s only reterence to

suspect class analysis. In footnote 6 we wrote: “Though

) ‘{t}he courts have not designated homosexuals a “suspect”

| or “quasi-suspect” classification so as to require more ex-

| acting scrutiny,’ DeSantis v. Pacitic Tel. & Tel. Co., 608

j F.2d 327, 333 (9th Cir. 1979), heightened scrutiny is in-

dependently required where a classification penalizes the

exercise Of a fundamental right. See Shapiro v. Thomp-

son, 394 U.S. 618, 634 (1969).” 641 F.2d at 1382 n.6.:

Although I recognize that the intended yurpose of this

7 footnote is not entirely clear, | cannot fairly read this pass-

ing reference as an adjudication of the important and un-

. resolved constitutional question whether homosexuals

constitute a suspect or quasi-suspect class for the purpose

ot equal protection analysis. Rather, | read footnote 6 as

simply clarifying the distinction between the suspect class

and tundamental rights branches of equal protection doc-

trine while acknowledging that at the time of the Hathe-

way decision courts had not yet decrded whether homo-

sexuals constitute a suspect or quasi-suspect class. That

the critical language in footnote 6 is taken directly from

our opinion in DeSantis, 608 F.2d at 327, informs our

SS

SOa

reading. In DeSantis, we acknowledged that our court had

not yet designated homosexuals as a suspect or quasi-

Suspect class, but we did not decide that homosexuais

should not be so designated. See infra at 30-31. Similarly,

in footnote 6 of Hatheway, we remarked on the existing

state of the law with respect to homosexuals without

deciding the open question whether homosexuals con-

stitute a suspect or quasi-suspect class. In other words, |

read Hatheway as interpreting the equal protection claim

presented as resting solely on the fundamental rights

branch of equal protection analysis. Hatheway is also dis-

tinguishable from this case because, like both Hardwick

and Beller, Hatheway involved a classification based on

homosexual conduct, not homosexual orientation. As |

note throughout my opinion, this distinction is relevant to

an analysis of Watkins’ particular equal protection claim.

Because I read Hatheway as not deciding the suspect

class issue, and because the suspect class and fundamental .

rights branches of equal protection doctrine involve very

separate inquiries, see, e.g., San Antonio School Indep.

District v. Rodriguez, 411 U.S. 1, 18-39 (1973); Perry,

Modern Equal Protection, 79 Colum. L. Rev. 1023,

1074-83 (1979); Developments in the Law — Equal Protec-

tion, 82 Harv. L. Rev. 1065, 1087-1131 (1969), Hatheway

does not stand in the way of Watkins’ equal protection

claim.?4

Finally, | must reject the Army’s contention that in

DeSantis v. Pacific Tel. & Tel. Co., 608 F.2d 327 (9th Cir.

1979), our court held that homosexuals do not constitute a

suspect or quasi-suspect class. In DeSantis, we considered

whether homosexuals were a protected class, within the

meaning of 42 U.S.C. 1985(3), which secures a right of

-4+ If Hatheway had decided that homosexuals do not constitute a

suspect class, Ould vote to have sen bane panel overrule |

u t cla I would vote to h this en bane panel rrule it

a ee

action against private parties who conspire to deprive “any

person or class of persons of the equal protection of the

laws.” We héld that section 1985(3) protects only those

groups that have been previously determined by Congress

or the courts to need special Federal assistance in protect-

ing their civil rights. 608 F.2d at 333.75 Applying this

standard, we concluded that homosexuals could not

receive the protection of section 1985(3), in part because

“(t]he courts have not designated homosexuals,a ‘suspect’

or ‘quasi-suspect’ classification,” 608 F.2d at 333 (empha-

sis added). We did not, and did not need to, consider

whether homosexuals should be considered a suspect class.

Thus, our decision that section 1985(3) did not protect

homosexuals turned simply on the point that courts had

not yet designated homosexuals a suspect class. Although

DeSantis does not articulate the reasons that section

1985(3) requires a prior governmental determination, it

seems likely — since section 1985(3) authorizes suits against

private individuals and requires no state action —that our

court’s interpretation of the statute was animated by con-

cerns about providing potential defendants with sufficient

notice of the statute’s scope. Cf. Marks v. United States,

430 U.S. 188, 192 (1977) Gudicial enlargement of the scope

of criminal statute without fair notice violates due

process).

>* Along with subsequent cases, DeSantis Has established that there

are only two ways of making this showing under 198513): (1) proving

that Congress has enacted statutes offering special protection to the

class; or (2) proving that courts have offered special protection to the

class by designating Hea suspect OF Quast-suspecl class. Id., see also

Schultz v. Sundberg, 789 F.2d 714, 718 (9th Cir, 198s)

yer

52a

C

While neither the Supreme Court nor the Ninth Circuit

has decided the question presented in Watkins’ appeal —

whether persons of homosexual orientation constitute a

suspect class under equal protection doctrine —seyeral

other circuits have considered the different but related

question whether laws burdening the class of individuals

engaging in homosexual conduct trigger heightened

scrutiny under the equal protection clause. Only one cir-

cuit, however, has given the issue more than cursory treat-

ment.2© In Padula v. Webster, 882 F.2d 97 (D.C. Cir.

1987), the District of Columbia Circuit rejected an equal

protection challenge to the FBI’s policy of discriminating

against “practicing homosexuals” in its hiring decisions.

The D.C. Circuit did not analyze whether the class of per-

sons engaging in homosexual conduct satisfies the tradi-

26 The Fifth and Tenth circuits have also considered this question.

Baker v. Wade, 769 F.2d 289, 292 (Sth Cir. 1985) (en banc), (stressing

that statute at issue was “directed at certain conduct, not at a class of

people”), cert. denied, 478 U.S. 1022 (1986); National Gay Task Force

v. Board of Educ., 729 F.2d 1270, 1273 (10th Cir. 1984) (statute at

issue proscribes “public homosexual activity” by teachers), aff'd with-

Out opinion by an equally divided Court, 470 U.S. 903 (1985). Both of

these circuits held that discrimination based on homosexual conduct

does not merit heightened scrutiny under the equal protection clause,

but neither circuit attempted any serious analysis of the issue. See

Baker v. Wade, 769 F.2d at 292 (noting merely that the plaintiff “has

not cited any cases holding, and we refuse to hold, that homosexuals

constitute a suspect or quasi-suspect classification”); National Gay

Task Force, 729 F.2d at 1273 (stating summarily that classification

based on choice of sexual partners could not be suspect because

Supreme Court has not held gender to be a suspect classification); see

also Rich v. Secretary of the Army, 735 F.2d 1220, 1229 (10th Cir.

1984) (citing without explanation National Gay Task Force, Hathe-

way, and DeSantis for the proposition that a “classification based on

one’s choice of sexual partners 1s not suspect”)

53a

tional indicia of suspectness, see infra at 33-44, but rather

concluded summarily (as the Army urges us to do here)

that “[i]t would be quite anomalous, On its face, to declare

status defined by conduct that states may constitutionally

criminalize as deserving of strict scrutiny under*he equal

protection clause.” Id. at 103. The D.C. Circuit reasoned

that “[ijf the [Supreme] Court [in Hardwick] was unwilling

to object to state laws that criminalize the behavior that

defines the class, it is hardly open to a lower court to con-

clude that state sponsored discrimination against the class

is invidious. After all, there can hardly be more palpable

discrimination against a class than making the conduct

that defines the class criminal.” Id.

Padula’s reasoning rests on the false premise that Hard-

wick issues a blanket approval for discrimination against

homosexuals. To repeat what I said above, Hardwick held

only that the constitutionally protected right to privacy

does not extend to homosexual sodomy. The case had

nothing to do with equal protection. I see no principled

way to transmogrify the Court’s holding that the due proc-

ess clause permits states to criminalize specific sexual con-

duct commonly engaged in by homosexuals into a holding

that the equal protection clause gives states a license to

pass “homosexual laws”—laws imposing special restric-

tions On gays because they are gay. Thus, | find Padula

unpersuasive. Moreover, as I have reiterated thoughout

this opinion, the regulations at issue here target orienta-

tion, not conduct —the trait at issue in Padula.

In sum, no federal appellate court?’ has decided the

critical issue raised by Watkins’ claim: whether persons of

homosexual Orientation constitute a suspect class under

equal protection doctrine. To be sure, Hardwick fore-

closes Watkins from making a due process claim that the

One district court has decided the question. See supra nO.

S4a

Army’s regulations impinge on an asserted fundamental

right to engage in homosexual sodomy. But Watkins

makes no such claim. Rather, he claims only that the

Army’s regulations discriminate against him because of his

membership in a disfavored group—homosexuals. This

claim is not barred by precedent.

IV

I now address the merits of Watkins’ argument that the

Army’s regulations must be subjected to strict scrutiny

because homosexuals constitute a suspect class under

equal protection jurisprudence. The Supreme Court has

identified several factors that guide our suspect class in-

quiry. I now turn to each of these factors.

The first factor the Supreme Court generally considers

is whether the group at issue has suffered a history of pur-

poseful discrimination. See, e.g., Cleburne, 473 U.S. at

441; Massachusetts Bd. of Retirement v. Murgia, 427 U.S.

307, 313 (1976); Rodriguez, 411 U.S. at 28; Frontiero, 411

U.S. at 684-85 (plurality). As the Army concedes,’® it is in-

disputable that “homosexuals have historically been the

object of pernicious and sustained hostility.” Rowland v.

Mad River Local School Dist., 470 U.S. 1009, 1014 (1985)

(Brennan, J., dyssenting from denial of cert.). Recently

courts have echoed the same harsh truth: “Lesbians and

gays have been the object of some of the deepest prejudice

and hatred in American society.” High Tech Gays v.

Defense Industrial Security Clearance Office, 668 F.

Supp. 1361, 1369 (1987) (invalidating Defense Department

practice of subjecting gay security clearance applicants to

more exacting scrutiny than heterosexual applicants); see

also BenShalom v. Secretary of the Army, No. 88-C-468

25 See Army’s Second Supplemental Briet at 10.

5Sa

(Jan. 10, 1989) (LEXIS, U.S. Dist. 1989) (homosexuals

historically subject to discrimination).

Discrimination against homosexuals has been pervasive

in both the public and private sectors. Legislative bodies

have excluded homosexuals from certain jobs and schools,

and have prevented homosexuals marriage. In the private

sphere, homosexuals continue to face discrimination in

jobs, housing and churches. See generally Note, An Argu-

ment for the Application of Equal Protection Heightened

Scrutiny to Classifications Based on Homosexuality, 57 S.

Cal. L. Rev. 797, 824-25 (1984) (documenting the history

of discrimination). Moreover, reports of violence against

homosexuals have become commonplace in our society. In

sum, the discrimination faced by homosexuals is plainly

no less pernicious or intense than the discrimination faced

by other groups already treated as suspect classes, such as

aliens or people of a particular national origin. See, e.g.,

Cleburne, 473 U.S. at 440 (identifying suspect groups).

The second factor that the Supreme Court considers in

suspect class analysis is difficult to capsulize and may in

fact represent a cluster of factors grouped around a central

idea — whether the discrimination embodies a gross unfair-

ness that is sufficiently inconsistent with the ideals of

equal protection to term ‘it “invidious.” Consideration of

this additional factor makes sense. After all, discrimina-

lion exists against some groups because the animus is war-

ranted —no One could seriously argue that burglars form a

suspect class. See Tribe, The Puzzling Persistence of Proc-

ess-Based Constitutional Theories, 89 Yale L.J. 1063,

1075 (1980); Note, supra, at 814-815 & nn.115-116. }» stv-

ing content to this concept of gross unfairness, the © c.t

has considered (1) whether the disadvantaged class is

defined by a trait that “frequently bears no relation to

ability to perform or contribute to society,” Frontiero, 411

U.S. at 686 (plurality); (2) whether the class has been sad-

S6a

dled with unique disabilities because of prejudice or inac-

curate stereotypes; and (3) whether the trait defining the

class is immutable. See Cleburne, 473 U.S. at 440-44;

Plyler, 457 U.S. at 216 n.14, 219 n.19, 220, 223; Murgia,

427 U.S. at 313; Frontiero, 411 U.S. at 685-687 (plurality).

I consider these questions in turn.

Sexual orientation plainly has no relevance to a person’s

“ability to perform or contribute to society.” Sergeant

Watkins’ exemplary record of military service stands as a

testament to quite the opposite. Moreover, as the Army

itself concluded, there is not a scintilla of evidence that

Watkins’ avowed homosexuality “had either a degrading

effect upon unit performance, morale or discipline, or

upon his own job performance.” ER at 26c.

This irrelevance of sexual orientation to the quality of a

person’s contribution to society also suggests that classifi-

cations based on sexual orientation reflect prejudice and

inaccurate stereotypes —the second indicium of a classifi-

cation’s gross unfairness. See Cleburne, 473 U.S. at

440-441. I agree with Justice Brennan that “discrimination

against homosexuals is ‘likely . . . to reflect deep-seated

prejudice rather than ... rationality.’ Rowland, 470

U.S. at 1014 (Brennan, J., dissenting from denial of cert.)

(quoting Plyler, 457 U.S. at 216 n.14).

The Army suggests that the opprobrium directed

towards gays does not constitute prejudice in the pejora-

tive sense of the word, but rather is simply appropriate

public disapproval of persons who engage in immoral

behavior. The Army equates homosexuals th sodomists —

and justifies its regulations as simply oma a rational

bias against a class of persons who engage in criminal acts

of sodomy. In essence, the Army argues that homosex-

uals, like burglars, cannot form a suspect class because

they are criminals.

S7a

The Army’s argument rests on two false premises. First,

as I have noted throughout this opinion, the class burd-

ened by the regulations at issue in this case is defined by

the sexual orientation of its members, not by their sexual

conduct. See supra at 4-12. To my knowledge, homosex-

ual orientation itself has never been criminalized in this

country. Moreover, any attempt to criminalize the status

of an individual’s sexual orientation would present grave

constitutional problems. See generally Robinson v. Cali-

fornia, 370 U.S. 660 (1962).

Second, little of the homosexual conduct covered by the

regulations is criminal. The regulations reach many forms

of homosexual conduct other than sodomy such as kiss-

ing, handholding, caressing, and hand-genital contact.

Yet, sodomy is the only consensual adult sexual conduct

that Congress has criminalized, 10 U.S.C. 925. Indeed, the

Army points to no law, federal or state, which criminalizes

any form of private consensual homosexual behavior

other than sodomy. The Army’s argument that its regula-

tions merely ban a class of criminals might be relevant,

although not necessarily persuasive, if the class at issue

were limited to sodomists. But the class banned from Ar-

my service is not comprised of sodomists, or even of

homosexual sodomists; the class is comprised of persons

of homosexual orientation whether or not they have

engaged in sodomy.

Finally, I turn to immutability as an indicator of gross

unfairness. The Supreme Court has never held that only

classes with immutable traits can be deemed suspect. Cf.,

e.g., Cleburne, 473 U.S. at 442 n.10 (casting doubt on im-

mutability theory); id. at 440-441 (stating the defining

characteristics of suspect classes without mentioning im-

mutability); Murgia, 427 U.S. at 313 (same); Rodriguez,

411 U.S. at 28 (same). | nonetheless consider immutability

because the Supreme Court has often focused on im-

58a

mutability, see, e.g., Plyler, 457 U.S. at 220; Frontiero,

411 U.S. at 686 (plurality), and has sometimes described

the recognized suspect classes as having immutable traits,

see, e.g., Parham v. Hughes, 441 U.S. 347, 351 (1979)

(plurality opinion) (describing race, national origin,

alienage, illegitimacy, and gender as immutable).

It is clear that by “immutability” the Court has never

meant strict immutability in the sense that members of the

class must be physically unable to change or mask the trait

defining their class. People can have operations to change

their sex. Aliens can ordinarily become naturalized

citizens. The status of illegitimate children can be

changed. People can frequently hide their national origin

by changing their customs, their names, or their associa-

tions. Lighter skinned blacks can sometimes “pass” for

white, as can Latinos for Angios, and some people can

even change their racial appearance with pigment injec-

tions. See J. Griffin, Black Like Me (1977). At a

minimum, then, the Supreme Court is willing to treat a

trait as effectively immutable if changing it would involve

great difficulty, such as requiring a major physical change

Or a traumatic change of identity. Reading the case law in

a more capacious manner, “immutability” may describe

those traits that are so central to a person’s identity that it

would be abhorrent for government to penalize a person

for refusing to change them, regardless of how easy that

change might be physically. Racial discrimination, for ex-

ample, would not suddenly become constitutional if

medical science developed an easy, cheap, and painless

method of changing one’s skin pigment. See Tribe, supra,

at 1073-74 n.52. See generally Note, The Constitutional

Status of Sexual Orientation: Homosexuality as a Suspect

Classification, 98 Harv. L. Rev. 1285, 1303 (arguing that

the ability to change a trait is not as important as whether

the trait is a “determinative feature of personality”).

|

59a

With these principles in mind, I have no trouble con-

cluding that sexual orientation is immutable for the pur-

poses of equal protection doctrine. Although the causes of

homosexuality are not fully understood, scientific research

indicates that we have iittle control over our sexual orien-

tation and that, once acquired, our sexual orientation is

largley impervious to change. See Note, supra, 57 S. Cal.

L. Rev. at 817-821 (collecting sources); see also L. Tribe,

supra note 23, at 945 n.17. Scientific proof aside, it seems

appropriate to ask whether heterosexuals feel capable of

changing their sexual orientation. Would heterosexuals

living in a city that passed an ordinance burdening those

who engaged in or desired to engage in sex with persons of

the opposite sex find it easy not only to abstain from

heterosexual activity but also to shift the object of their

sexual desires to persons of the same sex? It may be that

some heterosexuals and homosexuals can change their sex-

ual orientation through extensive therapy, neurosurgery or

shock treatment. See L. Tribe, supra note 23, at 945 n.17.

But see Note, supra, 57 S. Cal. L. Rev. at 820-21 &

nn.147-149. But the possibility of such a difficult and

traumatic change does not make sexual orientation

“mutable” for equal protection purposes. To express the

same idea under the alternative formulation, I conclude

that allowing the government to penalize the failure to

change such a central aspect of individual and group iden-

tity would be abhorrent to the values animating the con-

stitutional ideal of equal protection of the laws.

The final factor the Supreme Court considers in suspect

class analysis is whether the group burdened by official

discrimination lacks the political power necessary to ob-

tain redress from the political branches of government.

See, e.g., Cleburne, 473 U.S. at 441; Plyler, 457 U.S. at

216 n.14; Rodriguez, 411 U.S. at 28. Courts are under-

standably reluctant to extend heightened protection under

60a

equal protection doctrine to groups fully capable of secur-

ing their rights through the political process. It cannot be

seriously disputed, however, that homosexuals as a group

cannot protect their right to be free from invidious dis-

crimination by appealing to the political branches.

The very fact that homosexuals have historically been

underrepresented in and victimized by political bodies is

itself strong evidence that they lack the political power

necessary to ensure fair treatment at the hands of govern-

ment. In addition, homosexuals as a group are handi-

capped by structural barriers that operate to make effec-

tive political participation unlikely if not impossible. First,

the social, economic, and political pressures to conceal

one’s homosexuality operate to discourage gays from

openly protesting anti-homosexual government action.

Ironically, by “coming out of the closet” to protest against

discriminatory legislation and practices, homosexuals ex-

pose themselves to the very discrimination they seek to

eliminate. As a result, the voices of many homosexuals are

not even heard, let alone counted. Cf. J. Ely, supra note

21, at 163-64. “Because of the immediate and severe op-

probrium often manifested against homosexuals once so

identified publicly, members of this group are particularly

powerless to pursue their rights openly in the political

arena.” Rowland, 470 U.S. at 1014 (Brennan, J., dissent-

ing from denial of cert.).

Even when gays do come out of the closet to participate

openly in politics, the general animus towards homosex-

uality may render this participation ineffective. Many

heterosexuals, including elected officials, find it difficult

to empathize with and take seriously the arguments ad-

vanced by homosexuals, in large part because of the lack

of meaningful interaction between the heterosexual ma-

jority and the homosexual minority. Most people have lit-

tle exposure to gays, both because they rarely encounter

6la

gays’? and because—as I noted above — homosexuals are

often pressured into concealing their sexual identity. Thus,

elected officials sensitive to public prejudice and ig-

norance, and insensitive to the needs of the homosexual

constituency, may refuse to even consider legislation that

even appears to be pro-homosexual. See Note, supra, 98

Harv. L. Rev. at 1304 n.96. Indeed, the Army itself argues

that its regulations are justified by the need to “maintain

the public acceptability of military service,” AR 635-200,

15-2(a), because “toleration of homosexual conduct...

might be understood as tacit approval” and “the existence

of homosexual! units might well be a source of ridicule and

notoriety.” Army’s Opening Brief at 17, 19 n.9, 30-31

n.18. These barriers to the exercise of political power both

reinforce and are reinforced by the underrepresentation of

avowed homosexuals in the decisionmaking bodies of

government and the inability of homosexuals to prevent

legislation hostile to their group interests.’ See Frontiero,

?¥ Because homosexuals are a minority and are frequently excluded

from jobs, schools, churches, and heterosexual social circles, see

supra, heterosexuals generally have relatively few opportunities to

meet homosexuals and overcome their stereotypical thinking about

homosexuality.

The Army claims that homosexuals cannot be politically

powerless because two states, Wisconsin and California, have passed

Statutes prohibiting discrimination against homosexuals. Two state

statutes do not overcome the long and extensive history of laws

discriminating against homosexuals in all titty states. See, e.g., Note,

supra, 57 S. Cal. L. Rev. at 803-07. Moreover, at the national

level — the relevant political level for seeking protection trom military

discrimination —hombsexuals have been wholly unsuccesstul in get-

ling legislation passed that protects them trom discrimination,

The Army also argues that the repeal of sodomy statutes by many

States. proves that homosexuals are not” politically powerless.

However, sodemy statutes restrict the sexual freedom of heterosexuals

as Well as homosexuals. The repeal of sodomy statutes may thus

62a

411 U.S. at 686 & n.17 (plurality) (underrepresentation of

women in government caused in part by history of dis-

crimination); Cleburne, 473 U.S. at 445 (reasoning that

the existence of legislation responsive to the needs of the

mentally disabled belied the claim that they were political-

ly powerless).

In sum, all of the relevant factors drive me to the con-

clusion that homosexuals constitute a suspect class for

equal protection purposes. Moreover, the principles that

animate equal protection doctrine—the principles that

gave rise to these factors in the first place — reinforce that

conclusion. See also J. Ely, supra note 21, at 162-64 (clas-

sifications based on homosexuality merit heightened

scrutiny); L. Tribe, supra note 23, at 944-45 n.17 (same).

y

Having concluded that homosexuals constitute a suspect

class, | now must subject the Army’s regulations facially

discriminating against homosexuals to strct scrutiny.

Consequently, | may uphold the regu ations only if they

are “ ‘necessary to promote a compelling governmental in-

terest.” Dunn v. Blumstein, 405 U.S. $30, 342 (1972)

(quoting Shapiro, 394 U.S. at 634); see also University of

Calif. Regents v. Bakke, 438 U.S. 26%, 357 (1978) (Opin-

ion of Brennan, White, Marshall & Blackmun, JJ.). The

requirement of necessity means that no less restrictive

alternative is available to promote the compelling govern-

mental interest. See Dunn, 405 U.S. at 343; Bakke, 438

U.S. at 357 (Opinion of four justices).

I recognize that even under strict scrutiny, my review ot

military regulations must be more deferential than com-

parable review of laws governing civilians. See Goldman

reflect the liberalization of attitudes about heterosexual behavior

more than it reflects the political power of homosexuals.

63a

v. Weinberger, 106 S. Ct. 1310, 1313 (1986). While the

Supreme Court does not “purport to apply a different

equal protection test because of the military context, [it

does] stress the deference due congressional choices

among alternatives in exercising the congressional autho¢i-

ty to raise and support armies and make rules for their

governance.” Rostker v. Goldberg, 453 U.S. 57, 71 (1981)

(citing Schlesinger v. Ballard, 419 U.S. 498 (1975)). I ques-

tion whether this special deference is appropriate in

Watkins’ case given that Congress has chosen not to

regulate homosexuality or any form of sexual conduct en-

gaged in by military personnel save for one excepuion —

Congress has chosen to criminalize sodomy by military

personnel whether committed “with another person of the

same or opposite sex.” 10 U.S.C. 925 (emphasis added).

Hence, if anything, section 925 reflects an absence of con-

gressional intent to discriminate on the basis of sexual

orientation.

In any case, even granting special deference to the policy

choices of the military, | must reject many of the Army’‘s

asserted justifications because they illegitimately cater to

private biases. For example, the Army argues that it has a

valid interest in maintaining morale and discipline by

avoiding hostilities and “ ‘tensions between known

homosexuals and other members [of the armed services]

who despise/detest homosexuality.” ” Army’s Opening

Brief at 17 (quoting and incerporating into their argument

Beller, 632 F.2d at 811); see also id. at 17-18, 19 n.9, 30,

30-31 n.18; Army’s Second Supp. Briet at 30-31 & n.17;

AR 635-200, 15-I(a).’' The Army also expresses its

‘A somewhat different rationale conceivably could also underlie

certain cryptic statements the Army makes about tts concerns regard-

iy “close conditions attording minimal privacy,” “ ‘potential tor

ditticulties arising out of possible close continement, " and “the in

timacs of barrack’s life.” AR 648-200, 18- 1a): Army's Opening Briet

64a

“doubts concerning a homosexual officer’s ability to

command the respect and trust of the personnel he or she

commands’ ” because many lower-ranked heterosexual

soldiers despise and detest homosexuality. See Army‘s Sec-

ond Supp. Brief at 30-31 (quoting and incorporation

Beller, 632 F.2d at 811); see also id. at 31 n.17; Army’s

Opening Brief at 17-18, 19 n.9, 30; AR 635-200, 15-1(a).

Finally, the Army argues that the presence of gays in its

ranks “might well be a source of ridicule and notoriety,

harmful to the Army’s recruitment efforts” and to its

public image. Army’s Opening Brief at 31 n.18; see also id.

at 15, 17, 19 n.9, 30; AR 635-200, 15-1(a).

These concerns strike an all-too-familiar chord. For

much of our history, the military’s fear of racial tension

kept black soldiers separated from whites. As recently as

World War II both the Army chief of staff and the Secre-

tary of the Navy justified racial segregation in the ranks

at 15 (quoting Beller, 632 F.2d at 812); Army’s Second Supp. Brief at

19 n.9, 30. Conceivably, the Army could be concerned in part that the

presence of gays in the ranks will create sexual tensions—as dis-

tinguished from tensions arising from prejudice — because of the prac-

tical necessity of housing gays with personnel of the same sex. The Ar-

my, however, never articulates this concern. Thus it gives no indica-

tion that it regards this concern as compelling or that it believes that

weeding all homosexuals out of the military—even soldiers as ex-

emplary as Sergeant Watkins —is necessary to advance a compelling

military interest in reducing sexual tensions. Indeed, at points in its

argument the Army implies that it is concerned about the close con-

finement of soldiers only insofar as such confinement might exacer-

bate hostilities and tensions assertedly created by the prejudice some

heterosexuals have against homosexuals. See Army’s Opening Brief at

17, 31 n.18. Even if the Army had raised the argument that excluding

homosexuals from barracks reduces sexual tension and had shown

that reducing sexual tension serves a compelling interest, nothing in

the record even suggests that a per se rule banning all homosexuals

from the Army would be the least restrictive method of advancing this

interest.

65a

kept black soldiers separated from whites. As recently as

World War II both the Army chief of staff and the

Secretary of the Navy justified racial segregation in the

ranks as necessary to maintain efficiency, discipline, and

morale. See B. Ware, William Hastie: Grace Under

Pressure 99, 134 (1984).3? Today, if is unthinkable that the

judiciary would defer to the Army’s prior “professional”

judgment that black and white soldiers had to be

segregated to avoid interracial tensions. Indeed, the

Supreme Court has decisively rejected the notion that

private prejudice against minorities can ever justify of-

ficial discrimination, even when those private prejudices

create real and legitimate problems. See Palmore V.

Sidote, 466 U.S. 429 (1984).

in Palmore, a state granted custody of a child to her

father because her white mother had remarried a black

man. The state rested its decision on the best interests of

the child, reasoning that, despite improvements in race

relations, the social reality was that the child would likely

suffer social stigmatization if she had parents of different

races. A unanimous Court, in an opinion by Chiet Justice

Burger, conceded the importance of the state’s interest in

the welfare of the child, but nonetheless reversed with the

following reasoning:

It would ignore reality to suggest that racial and

ethnic prejudices do not exist or that all manifesta-

lions Of those prejudices have been eliminated. .. .

The question, however, is whether the reality of

* It took an Executive Order in 1945 by President Truman, issued

against the advice of almost every admiral and general, to integrate

our armed torces. Mo Miller, Plain Speaking: An Oral Biography of

Harry S. Truman 79 (1983). [tts also interesting to note that during

World War Il the A ® Us berately minimized any publicity about

the existence of black Jiets Decause Wt feared that such publicity

would tarnish the Army s public umage. See G. Ware, supra, at 100.

66a

private biases and the possible injury they might in-

flict are permissible considerations for removal of an

infant child from the custody of its natural mother.

We have little difficulty concluding that they are not.

The Constitution cannot control such prejudices but

neither can it tolerate them. Private biases may be

outside the reach of the law, but the law cannot,

directly or indirectly, give them effect.

Id. at 433. Thus, Palmore forecloses the Army from justi-

fying its ban on homosexuals on the ground that private

prejudice against homosexuals would somehow under-

mine the strength of our armed forces if homosexuals were

permitted to serve. See also Cleburne, 473 U.S. at 448

(even under rationality review of discrimination against

group that is neither suspect nor quasi-suspect, catering to

private prejudice is not a cognizable state interest).

The Army’s defense of its regulations however, goes

beyond its professed fear of prejudice in the ranks. Ap-

parently, the Army believes that its regulations rooting Oul

persons with certain sexual tendencies are not merely a

response to prejudice, but are also grounded in legitimate

moral norms. In other words, the Army believes that its

ban against homosexuals simply codifies society's inoral

consensus that homosexuality is evil. Yet, even accepting

arguendo this proposition that anti-homosexual animus is

grounded in morality (as opposed to prejudice masking as

morality), and assuming further that the Army is an ap-

propriate governmental body to articulate moral norms,

equal protection doctrine does not permit nouions of ma-

joritarian morality to serve as compeliing justification tor

laws that discriminate against suspect classes.

A similar principle animates Loving V. Virginia, 388

U.S. 1 (1967), in which the supreme Court struck down a

67a

Virginia statute outlawing marriages between whites and

blacks. Although the Virginia legislature may have

adopted this law in the sincere belief that miscegena-

tion—the mixing of racial blood lines—was evil,?> this

moral judgment could not justify the statute’s discrimina-

tion on the basis of race. Like the Army’s regulations pro-

scribing sexual acts only when committed by homosexual

couples, the Virginia statute proscribed marriage only

when undertaken by mixed-race couples. In both cases,

the government did not prohibit certain eondust, it pro-

hibited certain conduct selectively — only when engaged in

by certain classes of people. Although courts may

sometimes have to accept society’s moral condemnation as

a justification even when the morally condemned aclivily

causes no harm to interests outside notions of morality,

see Hardwick, 478 U.S. at 196 (accepting moral condem-

nation as justification under rauionality review), our

deference to majoritarian notions of morality must be

tempered by the equal protection principles which require

that those notions be applied evenhandedly. Laws that

limit the acceptable focus of one’s sexual desires to

members of the opposite sex, like laws that limit one’s

choice of spouse (or sexual partner) to members of the

same race, cannot withstand constitutional scrutiny absent

a compelling governmental justification. This requirement

would be reduced to a nullity if the government’s assertion

of moral objections only to interracial couples or only to

‘’ Indeed, the trial judge in Loving admonished Mildred and

Richard Loving that interracial Marriage Was a violation of the Chris-

tian ethnic of racial purity: “Almighty God created the races, White,

black, yellow, malay and red, and he placed them on separate con-

tinents. And but for the interference with his arrangement there would

be no cause for such marriages. The fact that he separated the races

Shows that he did not intend for the races to mix.” | oving, 388 U.S. at

3

68a

homosexual couples could itself serve as a tautological

basis for the challenged classification.

The Army’s remaining justifications for discriminating

against homosexuals may not be illegitimate, but they bear

little relation to the regulations at issue. For example, the

Army argues that military discipline might be undermined

if emotional relationships developed between homosexuals

of different military rank. Army’s Opening Brief at 17-18,

19 n.9, 30; AR 635-200, 15-!(a). Although this concern

might be a compelling and legitimate military interest, the

Army’s regulations are poorly tailored to advance that in-

terest. No one would suggest that heterosexuals are any

less likely to develop emotional attachments within

military ranks than homosexuals. Yet the Army’s regula-

tions do not address the problem of emotional at-

tachments between male and female personnel, which

presumably subjects military dicipline to similar stress.

Surely, the Army’s interest in preventing emotional rela-

tionships that could erode military discipline would be ad-

vanced much more directly by a ban on all sexual contact

between members of the same unit, whether between per-

sons of the same or opposite sex. Cf. Cleburne, 473 U.S.

at 449-50 (refecting certain asserted justifications under

rationality review where the justification would extend to

other groups but the challenged classifications did not).

Here the Army’s regulations disqualify all homosexuals

whether or not they have developed any emotional or sex-

ual relationships with other soldiers.

Also bearing little relation to the regulations is the

Army’s professed concern with breaches of security. AR

635-200, 15-1(a). Certainly the Army has a compelling in-

terest in excluding persons who may be susceptible to

blackmail. It :is evident, however, that homosexuality

poses a special risk of blackmail only if a homosexual 1s

secretive about his or her sexual orientation. The Army’s

69a

regulations do nothing to lessen this problem. Quite the

opposite, the regulations ban homosexuals only after they

have declared their homosexuality or have engaged in

known homosexual acts. The Army’s concern about

security risks among gays could be addressed in a more

sensible and less restrictive manner by adopting a regula-

tion banning on_y those gays who had lied about or failed

to admit their sexual orientation.*4 In that way, the Army

would encourage, rather than discourage, declarations of

homosexuality, thereby reducing the number of closet

homosexuals who might indeed pose a security risk.

Moreover, even if banning homosexuals could lessen

security risks, there appears to be no reason for lreating

homosexuality as a nonwaivable disqualification from

military service while treating other more serious potential

sources of blackmail as waivable disqualifications. See AR

635-200, 14-12(c) & (d) (making drug abuse and the com-

Mission of other serious military offenses waivable dis-

qualifications).

CONCLUSION

The Army’s regulations violate the constitutional

guarantee of equal protection of the laws because they

discriminate against persons of homosexual Orientation, a

suspect class, and because the regulations are not neces-

sary tO promote a legitimate compelling governmental in-

terest. | would thus reverse the district court’s rulings

denying Watkins’ motion for summary judgment and

granting summary judgment in favor of the Army, and re-

* Watkins has torthrightly reported his homosexuality since his in-

duction in 1967, and his homosexuality was always a matter of com-

mon knowledge. There is no suggest in the record before us that

Watkins ever feared public disclosure of his homosexuality,

70a

mand with instructions to enter a declaratory judgment

that the Army Regulations A.R. 635-200, Chapter 15, and

601-280, 2-21(c), are constitutionally void on their face,

and to enter an injunction requiring the Army to consider

Watkins’ reenlistment application without regard to his

sexual orientation.

-¢

Tla

CyNTHIA HOLCOMB HALL, Circuit Judge, dissenting.

Sergeant Perry Watkins has proven himself to be a

loyal, talented, and honest soldier. The majority is rightly

impressed by Watkins’ uniformly outstanding perfor-

mance evaluations and the persistent efforts of his im-

mediate superiors to insure his continued advancement in

the United States Army. I share the majority’s admiration

of Waikins’ fine service to his country. Watkins’ record

has but one blemish under Army regulations: his

homosexuality. Watkins brought this lawsuit seeking to

enjoin the Army from considering his homosexuality in

passing upon the merits of his reenlistment application.

During Watkins’ tenure, Army regulations have always

precluded the enlistment of homosexuals. The gravamen

of Watkins’ claim is that such discrimination against

homosexuals constitutes a violation of his right to equal

protection under the fitth amendment. The en banc ma-

jority shies away from this issue, however, and grants

Watkins the relief he seeks on an alternative rationale. !

' A majority of the active judges on this court voted to consider en

bane whether equal protection doctrine prohibits the Army’s

discrimination against homosexuals. While | do not dispute the court’s

en bane power to address the equitable estoppel claim, | do not inter-

pret the court’s decision to do so as meaning that the Watkins I deci-

sion conflicts with prior decisions of this court. Watkins argues that

Watkins I conflicts with three Ninth Circuit decisions. His contention

is frivolous. In Lavin v. Marsh, 644 F.2d 1378 (9th Cir. 1981), the

court rejected on the merits-an Army reservist’s argument that the Ar-

my Reserve was equitably estopped from enforcing an age-based years

of-service limitation. As the justiciability issue was neither raised nor

addressed, Lavin is of no precedential value on this point. Neither is

Watkins I in conflict with Jablon v. United States, 657 F.2d 1064 (9th

Cir. 1981). Jablon held that the government had not waived its

sovereign immunity with reeard to a promissory estoppel claim by a

service Member. How this case advances Watkins’ argument is incom-

prehensible. Finally, Watkins is wrong in arguing that Watkins | con-

72a

The majority holds that the Army is equitably estopped

from refusing to reenlist him due to the Army’s long-

standing knowledge of his homosexuality. I dissent from

this holding as an unwarranted application of common

law principles to matters within the military’s expertise.

The original panel in this case held that courts should

not review internal military affairs absent “an allegation of

the deprivation of a constitutional right or an allegation

that the military has acted in violation of applicable

statutes or its own regulations.” Watkins v. United States

Army, 721 F.2d 687, 690 (9th Cir. 1983) (“Watkins I”).

The Watkins I court took this prerequisite to judicial

review of internal military decision verbatim from the test

set forth in Mindes v. Seaman, 453 F.2d 197 (Sth Cir.

1971), for determining the justiciability? of claims concer-

ning internal military affairs.

The first prong of the Mindes test requires “(a) an

allegation of the deprivation of a constitutional right, or

an allegation that the military has acted in violation of ap-

plicable statutes or its own regulations, and (b) exhaustion

flicts with Cortese v. United States, 782 F.2d 845 (9th Cir. 1986). As

the Army notes, the plaintiff in that case was a private contractor, so

it did not raise the military discipline concerns at the heart of the

justiciability doctrine. The Mindes doctrine does not present: an

obstacle to civilian claims against the military. Bledsoe v. Webb, 839

F.2d 1357, 1359 (9th Cir. 1988).

? The Mindes doctrine ts analogous to the political question doc-

trine in limiting the types of disputes which courts are competent to

resolve. See Khalsa v. Weinberger, 779 F.2d 1393, 1395 n.1 (9th Cir.),

prior judgment reaff'd, 787 F.2d 1288 (9th Cir. 1985). Consequently,

the doctrine refers “to ‘reviewability’ rather than to ‘subject matter

jurisdiction.’” Id. at 1396 n.2. This dissent will use the term

“justiciability” synonomously with “reviewability.”

73a

of available intraservice corrective measures.” Mindes, 453

F.2d at 201. If these prerequisites are met, a court pro-

ceeds to the second prong, which requires weighing four

factors.? Most circuits have adopted the Fifth Circuit’s

Mindes test.* Furthermore, Mindes is well-established in

ihe Ninth Circuit.

’ The factors weighed in the second prong include: the nature and

strength of plainuff’s claim; the potential injury to plaintiff the type

and degree of anticipated interference with the military function; and

the level of military expertise and discretion. As Watkins’ equilabie

estoppel claim fails to satisfy the first prong of the Mindes test, the

dissent does not analyze these four factors. In addition, this case does

not require us to decide whether the cases rejecting constitutional

claims under Mindes’ second prong do so on the merits or on a

justiciability basis. Compa Khalsa, 779 F.2d at 1400 (rejecting suit

bring first amendment challenge to Army appearance regulations

under Mindes’ second prong), with Goldman vy. Weinberger, 475 U.S.

503, 508 (1986) (rejecting suit bringing first amendment challenge to

Air Force’s appearance regulations on the merits).

+ See, e.g., Costner v. Oklahoma Army Nat'l Guard, 833 F.2d 905,

907 (10th Cir. 1987) (per curiam); Stinson v. Hornsby, 821 F.2d 1537,

1540 (11th Cir. 1987), cert. denied, 109 S. Ct. 402 (1988); Williams v.

Wilson, 762 F.2d 357, 359 (4th Cir. 1985); Ogden v. United States, 758

F.2d 1168, 1179 n.7 (7th Cir. 1985); Penagaricano v. Llenza, 747 F.2d

55, 60-61 (Ist Cir. 1984); Nieszner v. Mark, 684 F.2d 562, 564 (8th

Cir. 1982), cert. denied, 460 U.S. 1022 (1983); cf. Bois v, Marsh, 801

F.2d 462, 468 (D.C. Cir. 1986); Schultz v. Wellman, 717 F.2d 301,

306-07 (6th Cir. 1983); Crawford v. Cushman, 531 F.2d 1114, 1120

(2d Cir. 1976). But see Dillard v. Brown, 652 F.2d 316, 323 (3d Cir.

1981). :

* Christoffersen v. Washington State Air Nat'l Guard, 855 F.2d

1437, 1440-45 (9th Cir. 1988); Sandidge v. State of Wasi®, 813 F.2d

1025, 1026 (9th Cir. 1987); Sebra v. Neville, 801 F.2d 1135, 1141 (9th

Cir. 1986); Khalsa, 779 F.2d at 1398; Gonzalez v. Department of Ar-

my, 718 F.2d 926, 929 (9th Cir. 1983); Wallace v. Chappell, 661 F.2d

729, 732-33 (9th Cir. 1981), rev'd en other erounds, 462 U.S. 296

(1983); Schlanger v. United States, 586 F.2d 667, 671 (9th Cir. 1978),

cert. denied, 441 U.S. 943 (1979).

PePCCT AVAIL ARIE (NDV

74a

In a straightforward application of Mindes’ first prong,

the Watkins I panel found a claim of equitable estoppel to

be nonjusticiable because this type of common law claim is

not premised on the deprivation of constitutional rights or

the violation of applicable statutes or regulations. These

prerequisites to judicial scrutiny of military affairs serve to

advance a widely recognized goal: minimizing “judicial in-

quiry into, and hence intrusion upon, military matters.”

United States v. Stanley, 107 S. Ct. 3054, 3063 (1987).

While the majority acknowledges that our cases have ac-

cepted the limited nature of judicial regulation of military

affairs, it fails to explore how the Mindes prerequisites

further this objective. Indeed, the majority does not argue

that limiting judicial review to federal constitutional,

statutory, and regulatory claims is a bad idea. The majori-

ty simply concludes —in ad hoc fashion —that the Mindes

prerequisites should be ignored in this case.°

The Supreme Court held in Feres V. United States, 340

U.S. 135 (1950), that the government has no Federal Tort

Claims Act liability for injuries to military service

members arising Out of or in the course of activity incident

to military service. The Court’s holding in Feres teaches

that these are the “type[s] of claims that, if generally per-

mitted, would involve the judiciary in sensitive military af-

fairs at the expense of military discipline and

effectiveness.” United States v. Shearer, 473 U.S. 52, 59

© It is ironic that the majority concludes that it “must determine the

preliminary question whether Watkins has exhausted available in-

traservice remedies.” Opinion at 100. Exhaustion of intraservice

remedies is, of course, the other half of Mindes’ first prong. As with

the limitation to federal claims, exhaustion serves to limit judicial in-

terference with military matters.

?

75a

(1985). “Feres seems to be best explained by the ‘peculiar

and special relationship of the soldier to his superiors,

[and] the effecis of the maintenance of such suits on

discipline... .””’ United States v. Muniz, 374 U.S. 150,

162 (1963) (quoting United States v. Brown, 348 U.S. 110,

112 (1954)).

The Court recently has heid that the military discipline

rationale of the Feres doctrine precludes a tort action by a

military service member even when a civilian government

employee is alleged to be the tortfeasor. United States v.

Johnson, 107 S. Ct. 2063 (1987). The Court emphasized

that “military discipline involves not only obedience to

orders, but more generally duty and loyalty to one’s serv-

ice and to one’s country.” Id. at 2069. The Court conclud-

ed that the mere pendency of a suit against the government

by a service member “could undermine the commitment

essential to effective service and thus have the potential to

disrupt military discipline in the broadest sense of the

word.” Id. While the suit before the Court involved

service-related injuries, the Court’s reasoning underscores

that all suits by active military personnel against the

government they serve have the potential to undermine

discipline. : '

The Supreme Court’s decision in Chappell v. Wallace,

462 U.S. 296 (1983), relied upon Feres’ military discipline

rationale to conclude that enlisted military personnel can-

not maintain a Bivens’ suit to recover damages from a

superior officer for alleged constitutional violations. In

Chappell, five Navy enlisted men alleged that certain of-

ficers discriminated against them on the basis of race in

making duty assignments and performance evaluations.

Id. at 297. But the Court opined that “[c]ivilian courts

* Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388

(1971).

76a

must, at the very least, hesitate long before entertaining a

suit which asks the court to tamper with the established

relationship between enlisted military personnel and their

superior officers; that relationship is at the very heart of

the necessarily unique siructure of the Military Establish-

ment.” Id. at 300.

While the Court in Chappell identified the officer-

subordinate relationship as especially important, the

Court also noted that “[i]t is clear that the Constitution

contemplated that the Legislative Branch have plenary

contro! over rights, duties, and responsibilities in the

framework of the Military Establishment, including

regulations, procedures, and remedies related to military

discipline ....” Id. at 301. This presumption against

“congressionally uninvited intrusion into military affairs

by the judiciary” explains why the Court has recently ex-

panded upon Chappell to hold that a damages remedy is

unavailable even though the detendants were not

plainuff's superior officers and may well have been

civilian personnel. Stanley, 107 S. Ct. at 3061, 3063. The

Court recognizes that military discipline is adversely at-

fected whenever a service member brings suit in connec-

tion with injuries incident to military service.

A

The Court’s decision in Chappell reversed the Ninth Cir-

cuit’s ruling that the Navy men had alleged a sufficient

claim for damages. Finding Mindes’ first prong satisfied,

the Ninth Circuit had remanded the case to the district

court for consideration of the second prong of Mindes: the

weigning of four factors to determine the case’s ap-

propriateness for judicial resolution. Chappell, 661 F.2d

at 734. While his circuit expressed some initial uncertainty

over the continued efficacy of the Mindes test in the wake

-?

ae

of the Supreme Court’s decision in Chappell, courts subse-

quently have applied the Mindes jurisdictional test to

claim not directly precluded by the Supreme Court’s Chap-

pell decision.®

Broadly speaking, Mindes applies to two typeyof claims

which Chappell does aot expressly foreclose: (1) claims

strictly seeking injunctive or declaratory relief,’ and (2)

damages claims based upon an explicit statute, such as 42

U.S.C. 1983 or 1985(3).'° As Watkins’ suit solely seeks

declaratory and injunctive relief, it does not run afoul of

Chappell’s express holding.

‘In Mollmow sv. Carton, 716 b.2d 627 (9th Cir. 1983), cert. denied,

465 U.S. 1100 ¢2984), +e court found that the “precise holding” of

Chappell did not dictate rejection of plaintift’s claim that defendants

had violated 42 U.S.C. 1988(1). Plaintitt, a former pilot and officer in

the Air Force Reserve, sued commanding officers and attending’

medical personnel. Phe court noted that Chappell had merely rejected

an implied Gaiiages semedy, but that section 1985(1) expressly

authorized &@ damages eward. Id. Nonetheless, the court held that

plaintiff’s seerion PM8S¢h) claim was properly dismissed becatise such

liability woule conthct with Chappel’s underlying rationales. Given

this disposition, the court did not address w hether Mindes “survived”

Chappell. Mollnow, 716 F.2d at 630 15. :

*% Chappell noted that service members are not precluded from ob-

taining any relief whatsoever for constitutional violations, citimy to

three cases which involved injunctive or declaratory relief. Chappel),

462 U.S. at 304. The Nint® Circuit in Mollnow noted that none of the

cited cases was a “suit for damages.” Mollnow, 716 F.2d at 629 a4.

The Supreme Court has subsequently acknowledged that these ¢sta-

tions “referred to redress designed to halt or prevent the constituuiora!

violation rather than the award of money damages.” Stanley, i107 S.

Ct. at 3063. See Ogden, 758 F.2d at 1175 (“We hold that Chappell

does not preclude an equitable remedy”).

“(T]he [Chappell] Court’s rationale has left the tield open tor

Congress to enact legislation authorizing servicemen’s constitutional

{damages} claims against their superiors.” Christottersen, 855 b.2d at

1441. As suits against a state’s National Guard involve state action,

78a

The Court’s rejection of a damages remedy against

military officials in Chappell, and its implied acceptance

of claims seeking only declaratory or injunctive relief,

highlight the Court’s appreciation of the differing nature

of these two types of claims. The Court has held that

federal executive officials are entitled to qualified immuni-

ty against damages claims because damages threaten to

undermine “the vigorous exercise of official authority.”

Butz v. Economou, 438 U.S. 478, 506 (1978); see also

Harlow v. Fitzgerald, 457 U.S. 800 (1982).'' But an ab-

solute immunity from suits seeking damages “would

seriously erode the protection provided by basic constitu-

tional guarantees.” Butz, 438 U.S. at 505. Similarly, the

availability of certain types of injunctive suits against the

section 1983 provides a potential basis for a statutory damages claim.

The Christoffersen court declined to decide “whether Chappell bars

any or all section 1983 claims for alleged civil rights violations by

military personnel.” Id. This circuit has also left open the question of

whether Chappell is inconsistent with a damages suit pursuant to sec-

tion 1985(3). See Miller v. Newbauer, No. 87-6573, slip op. 14999,

15008 (9th Cir. December 7, 1988).

Other circuits have concluded that Chappell’s reasoning is inconsist-

ent with a damages action under section 1983 against state National

Guard officials. See Holdiness v. Stroud, 808 F.2d 417, 423 (Sth Cir.

1987); Jorden v. National Guard Bureau, 799 F.2d 99, 108 (3d Cir.

1986), cert. denied, 108 S. Ct. 66 (1987); Brown v. United States, 739

F.2d 362, 366-67 (8th Cir. 1984), cert. denied, 473 U.S. 904 (1985);

Martelon v. Temple, 747 F.2d 1348, 1350-51 (10th Cir. 1984), cert.

denied, 471 U.S. 1135 (1985). As Watkins’ suit does not raise the ques-

tion of whether cbtaining such damages against state National Guard

officers is inconsistent with the Chappell decision’s underlying ra-

tionales.

‘Cf. Edelman v. Jordan, 415 U.S. 651 (1974) (interpreting the

eleventh amendment as precluding the retroactive award of monetary

benetits, while allowing prospective injunctive relief).

79a

military assures “that all individuals, whatever their posi-

tion In government, are subject to tederal law... .” Butz,

438 U.S. at 506 (emphasis added).

While suits seeking injunctive relief against military of-

ficers are a critical means of assuring the rule of law,

claims for injunctive relief do require the courts to second-

guess the “considered professional judgment” of military

authorities. Goldmen v. Weinberger, 475 U.S. 503, 508

(1986) (rejecting first amendment suit seeking to enjoin the

Air Force from enforcing a regulation which prohibited

plaintiff from wearing yarmulke). Indeed the Mindes deci-

sion itself arose solely in the context of a claim for injunc-

tive and declaratory relief in connection with’ plaintiff's

forced separation trom active duty. Minaes, 453 F.2d at

198,

As suits for injunctive relief interfere with the military

mission, albeit to a tesser extent than sults seeking

damages, Chappell cannot be read as holding that all in-

junctive suits are equally well-taken. Accordingly, Mindes

appropriately limits the types of claims which may be

asserted to those raising federal constitutional, statutory

or regulatory matters. “However broad a federal court’s

discretion concerning equitable remedies, it is absoutely

clear. . . that ina nondiversity suit a federal court’s power

to grant even equitable relief depends on the presence of a

substantive right derived from federal law.” Bivens, 403

U.S. at 400 (Harlan, J., concurring) (emphasis added).

For similar reasons, the Supreme Court has declined to

erect the eleventh amendment as a complete bar to federal

court jurisdiction of claims alleging unconstitutional con-

duct by a state actor. See Ex Parte Young, 209 U.S. 123

(1908). “[T]he Young doctrine rests on the need to pro-

mote the vindication of federal rights.” Pennhurst State

School & Hosp. v. Halderman, 465 U.S. 89, 105 (1984).

“Young’s applicability has been tailored to conform as

80a

precisely as possible tu those specific situations in which it

is ‘necessary to permit the federal courts to vindicate

federal rights and hold state officials responsible to ‘the

supreme authority of the United States.’” Papasan v.

Allain, 478 U.S. 265, 277 (1986) (quoting Pennhurst, 465

U.S. at 105).

The eleventh amendment analogy is apt because it also

requires balancing the need to vindicate federal rights with

the obligation not to intrude excessively upon an area

presumptively off-limits to the federal courts. A state’s

“constitutional immunity” can be likened to the military’s

specialized society separate from civilian society.” Com-

pare Pennhurst, 465 U.S. at 105, with Parker v. Levy, 417

U.S. 733, 743 (1974). But in the eleventh amendment area,

a State’s immunity stands impenetrable where a plaintiff

fails to allege that state officials have violated federal law.

“A federal court’s grant of relief against state officials on

the basis of state law . . . does not vindicate the supreme

authority of federal law.” Pennhurst, 465 U.S at 106. Ina

like manner, the Mindes test insures that judicial intru-

sions into military matters are limited to the vindication of

federal interests.

C

There is no doubt that the majority’s intrusion into

military affairs, unjustified by important federal interests,

will have a disruptive effect upon military discipline. The

Watkins I panel stated that “[iJt is clear that a court using

its equitable powers to compel superior officers to disobey

regulations at the instance of a subordinate is a serious

threat to military discipline.” Watkins I, 721 F.2d at 690.

The majority attempts to downplay its disruption of

military discipline by emphasizing the “stringent re-

quirements that must be satisfied before the government

8la

will be estopped.” Opinion at 13-14. But the majority fun-

damenially fails to understand the nature of military

discipine as articulated by the Supreme Court.

As noted above, the Court’s decisions in Stanley and

Johnson reveal that the mere pendency of a lawsuit by a

service member against the government he serves has an

adverse impact on military discipline in the “broadest

sense of the word.” Johnson, 107 S. Ct. at 2069. Stanley

cautioned against the dangers of “compelled depositions

and trial testimony by military officers concerning the

details of their military commands.” Stanley, 107 S. Ct. at

3063; see also Khalsa, 779 F.2d at 1395 n.1 (litigation

“could interfere with military discipline and efficient

operations by requiring superi>r officers to submit to ex-

aminations”). Litigation is inherently disruptive, and en

tails the risk of “erroneous judicial conclusions (which

would becloud military decision-making).” Stanley, 107 S.

Ct. at 3063. Litigation has certain “social costs [, which]

include the expenses of litigation, [and] the diversion of

official energy from pressing public issues. . . .” Harlow,

457 U.S. at 814. Thus, the majority’s prediction that the

United States military generally will be successful in estop-

pel suits does not carry the day.

The majority fails to marshal any case law in support of

its holding that a common law estoppel claim is justiciable

against the military. In fact, the majority distorts our prior

case law to make it appear as if its holding is uncontrover-

sial. The majority’s steadfast desire to avoid constitutional

adjudication does not support its destruction of a valuable

justiciability doctrine.

82a

A

The majority begrudgingly acknowledges that this court

has adopted the Mindes test “in part,” citing our decision

in Chappell in support of this characterization. Opinion at

12. The court in Chappel! did state in a footnote that “[w]e

express no view as 7io whether the Mindes test should

govern federal nonconstitutional claims,” 661 F.2d at 733

n.5, but this hardly supports minimizing this court’s

faithfulness to Mindes’ first prong.

First, the majority itself concedes that “[s]ome of our

cases following Wallace v. Chappell have used language

indicating that an internal military decision is reviewable

only when the plaintiff alleges a constitutional, statutory,

or regulatory violation.” Opinion at 12 n.10. In fact, all

our cases following Chappell have insisted that plaintiff's

claims allege a federal constitutional, statutory, or regu-

latory violation. Second, the majority takes Chappell’s

“ootnote completely out of context. In contest, Chappell’s

caveat strongly supports the dissent’s position.

The Ninth Circuit in Chappell was greatly concerned

that unnecessary judicial review of military matters would

adversely affect discipline. Consequently, the court did in-

deed limit its adoption of Mindes’ first prong, permitting a

narrower group of claims raising only “recognized” con-

stitutional rights. 661 F.2d at 734. In explaining why it

limited itself to recognized constitutional claims, the court

stated: “We mean only that the allegations must amount to

more than a traditional state law claim.” Id. (emphasis

added). This complete presentation of our decision in

Chappell demonstrates that that court’s adoption “in part”

ot Mindes is of no solace to the majority.'?

‘2 The majority’s citation to our decision in Helm v. State of Cal.,

722 F.2d $07, 509-10 (9th Cir. 1983), is entirely unpersuasive. Phe ma-

jority cites Helm as having applied the Mindes test to a constitutional

a

83a

B

The majority states that it eschews the Mindes test in

this case because “[sJuch an extension of the Mindes

reviewability doctrine to bar equitable relief would im-

properly require cases against the military to be decided on

the broadest possible grounds rather than on the nar-

rowest.” Opinion at 13. But the majority’s desire to avoid

the difficult equal protection question presented in this

case is nO reason to dispense with well-established case

law.

This type of policy concern does not override the

established limitations of the federal courts. Plaintiffs in

the Pennhurst case similarly argued that the Court’s even-

tual disposition would contlict. with “the policy of

avoiding unnecessary constitutional decisions rg

Pennhurst, 465.U.S. at 121. In that area of the law, the

Court held that “such considerations of policy cannot

override the constitutional limitation on the authority of

the federal judiciary ....” Id. at 123. Likewise, this

policy consideration cannot override the established policy

against judicial regulation of military matters absent

pressing federal interests.

claim against the military but not to an equitable estoppel claim, the

inference apparently being that Helm supports the proposition that

Mindes is no bar to an equitable estoppel claim. Helm provides scant

support for this proposition. The Helm court noted that the estoppel

claim was not properly before it because plaintiff first raised that

claim on appeal. Id. at S510. The court did state that “[e]ven had the

issue been presented below, it is effectively precluded by Lavin v.

Marsh, 644 F.2d 1378 (9th Cir. 1981).” Id. As noted, supra, note 1,

the parties did not raise the Mindés issue in Lavin, and the court did

not address it.

IV

bd

The majority’s holding on the merits of Watkins

equitable estoppel claim is also entirely unpersuasive.

While the Supreme Court has declined to accept a govern-

ment invitation to adopt a rule that equitable estoppel may

never

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