# Appendix — United States v. Watkins

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_1548%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1990
- **Citation:** 498 U.S. 957

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_1548%3A2. Public record. Not legal advice.