Petition for Writ of Certiorari — Holmes v. California Army National Guard

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FILED

IN THE

) 5 1998

Supreme Court of the Grdiet D8 oil .

Term, 1998 M-t.° OF THE CLERK

ANDREW HOLMES, First Lieutenant,

Petitioner,

CALIFORNIA ARMY NATIONAL GUARD; TANDY BOZEMAN, Major,

in his official capacity; PETE WILSON, Governor, in his official capacity;

U.S. ARMY NATIONAL GUARD; UNITED STATES OF AMERICA;

WILLIAM S. COHEN, Secretary Of Defense,

Respondents.

RICHARD P. WATSON, Lieutenant,

Petitioner,

Vv.

WILLIAM J. PERRY, Secretary of Defense; JOHN DALTON,

Secretary of the Navy; UNITED STATES OF AMERICA,

Respondents.

On Petition for Writ of Certiorari

To the United States Court of Appeals for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

KEITH L. SLENKOVICH

Counsel of Record

CHRISTOPHER J. BAKES

Kipp C. WORDELL

BAKES & SLENKOVICH LLP

525 University Avenue

Palo Alto, California 94301

(650) 688-6000

July 1, 1998 Attorneys for Petitioner

QUESTIONS PRESENTED FOR REVIEW

This Petition seeks review of the constitutionality of the so-called

“don’t ask, don’t tell” policy regarding homosexuality in the armed

forces. The questions presented for review by this Petition are:

I. Does A Policy Which Punishes Members Of One Class Of

Individuals, Admitted Homosexuals, For Identifying Their Sexual

Orientation, Violate The Equal Protection Clause?

Il. Does The Government’s “Don’t Ask, Don’t Tell” Policy,

A Policy Designed To Silence Homosexuals From Identifying Their

Status As Homosexuals, Constitute An Unconstitutional Prior Restraint On

Free Speech?

Ill. Are The Courts Required To Accept Legislative

Pronouncements That The “Don’t Ask, Don’t Tell” Policy Regulates

“Conduct” Rather Than “Status” Or “Speech,” In The Face Of

Overwhelming Evidence That The Policy Was Designed To, And Does,

Impermissibly Regulate “Status” And “Speech”?

TABLE OF CONTENTS

Page

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CONSTITUTIONAL, STATUTORY, AND

REGULATORY PROVISIONS INVOLVED ................cccccdecssecssescosesseees l

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REASONS FOR GRANTING THE PETITION ..................c::cccseeseeseees 10

I. This Case Presents Questions of Exceptional Importance, and

the Decision of the Court of the Court of Appeals Is

ET GRE CT LL Th psd scakauslcabitioancacdeussedasarsasinsansestwdevecenanseesss 11

A. The Decision Below Ignores Compelling Precedents Of

This Court, And Should Not Be Allowed To Stand—Even

If This Court Employs The Least Scrutinizing Level Of

Constitutional Review—Since It Creates An

Unprecedented Broad “Deference To Congress”

Exemption From This Court’s Command That Prejudice

Can Play No Part In Statutory Classifications Of Human

ins ccc esueansnaceceanneees 1]

B. It Is A Long-Standing Feature Of Supreme Court

Jurisprudence That Prejudice Is A Forbidden Basis For

The Formulation Of Government Policy; There Is No

Neen ee iss. daceavascaksvansinensnenschstecernes 13

C. The Court Below Steadfastly Ignored Romer v. Evans, 517

a wnchsannsbenscsnnssvexs 15

D. The Court Wrongly Collapsed The Concepts Of Status

And Conduct; In Approving Of The Policy’s Forced

iii

Transformation Of “Status” Into “Conduct,” The Court

Below Ignored A Line Of This Court’s Precedents

Forbidding Exactly This.............-.::sscssssersseretseseeeetaeseneens 17

E. Turning To The Petitioners’ First Amendment Challenge,

The Court Was Similarly Dismissive, Holding That The

Policy Reached Only “Conduct,” Not “Speech.”............. 18

CONCLUSION ....0.00cccc--cscccsscorccccsssvcsssscssessescsessnsecscscssssconseesseeessesseses 20

APPENDICES

APPENDIX A. .......-0...cccccscscccscsccsssssssscscsvcsssssnessesssscsscssccsreceeossssssssenes la

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APPENDIX IN ....n..cccsccscecccsssccssssscnssscccccsesecesonsnsssesnunsccscessssececensesenes 180a

TABLE OF AUTHORITIES

CASES ' Page

Able v. United States,

NE, SUE SELAROGs Bo. CID snssnsinnsavvacecesecononssssnrrecnsevavenes 4, 5,6

Andrew Holmes v. California Army National Guard,

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Brown v. Glines,

stadt phh pdlagan tubaenbhauebes 19

Buttino v. Federal Bureau of Investigation,

8 eS | eee 12

City of Cleburne v. Cleburne Living Center, Inc.,

cs cing ules vansdabondenvesitnsihannabeusecéasine 5,9, 11, 13

Gilligan v. Morgan,

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Goldman v. Weinberger,

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Greer v. Spock,

I aa ccs tiaicnehdsvubeatisnanckawsith 19

Holmes v. California Army National Guard,

rac cea Vd con hdninnnacauhdudsstenssentsenavessesa passim

Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston,

a ald Le seared nn betta ainntenuatne ie suiehssedasanniéensbatine 19

Jacobson v. United States,

as sch chundonndinguebenmagneienpuntes 17

Korematsu v. United States,

i och auietnnanhaobuubeaa 12, 13

Meinhold v. United States Department of Defense,

re an iiecakanacasansbacsonsecieersenshversses 17

at CAN clase hot Se tS CO anh aS

CASES (continued) Page

New York City Transit Authority v. Beazer,

I a scccaieuneniens 14

Palmore v. Sidoti,

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Phillips v. Perry,

ea UMD GAMES RUPE D oncssnicncceneunsensonsecsencensenseevorscseosensenss 13

Powell v. Texas,

ERIE RSE eRe EU ee NE ETE 17

R.A.V. v. City of St. Paul,

I inh uscd shontnsdpenkguvbunaeibaoudedueeseeeaaniess 19, 20

Richard P. Watson v. William J. Perry, et al.

920 F.-Supp._1510_(N.D._Cal.1996) —<.cscscssscncacarsccasssssasasesaeassvaeesaaws l

Robinson v. California,

i ee a ccsanamidabeabecas esas 17

Romer v. Evans,

IT I MIE Md Seti Niel ots kiisdlinkbovasnhbeunnsatdesvcnterecsidonctadeseinnse passim

Rosenberger v. Recor and Visitors of the University of Virginia,

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Simon & Shuster v. New York Crime Victims Bd.,

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Texas v. Johnson,

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Thomasson v. Perry,

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Tinker v. Des Moines Indep. Community School District,

i sn cenbeseadetbbenosenewesie 20

Vance v. Bradley,

EER TE NIRRSIS Se AD ge ee 11

CONSTITUTIONAL PROVISIONS

United States Constitution Amendment I ...................cccccccseeceeceeseeeeeees 1,5

United States Constitution Amendment V_ ..............cccccccceceeceeceeecesceuees 1,5

STATUTES

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10 United States Code sections 877-934 (Uniform Code of Military

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REGULATIONS

Department of Defense Directive 1332.30 ......................sssssesssssees passim

LEGISLATIVE MATERIALS

Policy Concerning Homosexuality in the Armed_ Forces;

Hearing Before the Committe on Armed Services, 103d Congress; 2nd

ET ai stench cedendbenencindshudsteceiserscaksdh iyubevabinssnssesnahidtounccbonenedeind 6, 12, 16, 17

EXECUTIVE MATERIALS

Report to the Secretary of Defense: Review of the Effectiveness of the

Application and Enforcement of the Department’s Policy on Homosexual .

Conduct in the Military, Office of the Under Secretary of Defense

(Personnel and Readiness), April 1998...............cccccscsssssssescecccccsscsessssssees 7

OPINIONS BELOW

The opinion of the court of appeals (App., A, la-24a) is reported

at 124 F.3d 1126. The opinions of the district courts are reported,

respectively, at 918 F.Supp. 1403 (W.D.Wash. 1996) (App., C, 28a-45a)

(Richard P. Watson v. William J. Perry, et al.) and 920 F.Supp. 1510

(N.D.Cal. 1996) (App., D, 46a-81a) (Andrew Holmes v. California Army

National Guard, et al.). The cases were consolidated for oral argument

before the court of appeals, which issued a single opinion. Richard P.

Watson (Lieutenant, United States Navy) and Andrew Holmes jointly file

this petition for Writ of Certiorari. (All references to the consolidated

cases of Watson and Holmes will be to Holmes v. California Army

National Guard.) The findings and recommendations of each member’s

Board of Inquiry are not reported.

JURISDICTION

The judgment of the court of appeals was entered on September

5, 1997; petition for rehearing was denied on April 6, 1998. The

jurisdiction of this Court is invoked under 28 U.S.C. section 1254(1).

CONSTITUTIONAL, STATUTORY, AND REGULATORY

PROVISIONS INVOLVED

The First and Fifth Amendments to the United States Constitution

(App., E, 82a); the relevant provisions of the Administrative Procedure

Act (“APA”), 5 U.S.C. section 706 (App., F, 83a); Section 571 of the

National Defense Authorization Act of 1994, 10 U.S.C. section 654

(App., G, 84a-87a); and Department of Defense ("DoD”) Directive No.

1332.30 (App., H, 88a-110a) are set forth in the Appendix.

STATEMENT OF THE CASE

This case challenges the constitutionality, both on its face and as it

has been applied to petitioners, of the federal government’s policy

regarding military service by homosexual men and women—a policy

known colloquially as “Don’t Ask, Don’t Tell, Don’t Pursue,”

hereinafter “the Policy.”

A. The Policy

The Policy’s colloquial title is suggestive of its legislative and

executive history. It did not begin its life as legislation. Rather, President

Clinton at the start of his presidency stated that elimination of

discrimination against homosexuals in the armed services would be a

priority of his administration. Reaction in the houses of Congress—and

particularly from legislators from the Southern States—was condemning.

Hearings ensued, first in the House of Representatives and then in the

Senate. The testimony obtained in these settings by unsympathetic and

even hostile members of Congress record how the Executive branch’s

attempt to eliminate a particular brand of prejudice resulted in a Policy

that imposed on affected service members an obligation to remain

absolutely silent about their homosexuality, under any circumstance and

at all times.

By operation of the Policy, a service member who speaks of his or

her status as a homosexual is forced, under pain of a stigmatizing early

discharge, to do no less than renounce that he or she is, in fact, a

homosexual. The Policy’s “don’t tell” prong rendered any change in

the status quo entirely illusory.

Under the Policy, whose long title is the National Defense

Authorization Act of 1994 (the “Act’’), a homosexual orientation, in and

of itself, does not technically operate as a bar either to entry into the

armed forces or to continued military service. 10 U.S.C. section 654(b)-

statement of status—“I am a homosexual”—immediately operates to

impose on that service member an obligation, under pain of early

discharge, to rebut a statutory presumption. This presumption, broad and

sweeping, requires proof of a negative proposition: the service member

must “demonstrate[] that he or she is not a person who engages in,

attempts to engage in, has a propensity to engage in, or intends to engage

in homosexual acts.” /d.

On December 21, 1993, the Department of Defense (“DoD”)

issued two directives intended to give administrative effect to the Act. See

DoD Dir. No. 1332.30. (App., H, 88a-110a)' These directives took effect

DoD Directive No. 1332.30, which was applied in the cases below to Lieutenant

Watson and First Lieutenant Holmes, governs the administrative separation of

regular commissioned officers. DoD Directive No. 1332.14 governs the

administrative separation of enlisted personnel. The two directives are identical in

all material respects.

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on February 28, 1994. Like the Act, the new directives do not regard

sexual orientation as a disqualification for military service. In fact, they

expressly provide to the contrary: “[a] member’s sexual orientation is

considered a personal and private matter, and is not a bar to continued

service... unless manifested by homosexual conduct.” DoD Dir. No.

1332.30, Enc. 2, paragraph C (App. H, 94a-96a).

In application, however, this phrasing is meaningless, since the

Policy eliminates any possibility that a declared homosexual’s statement

will be considered anything but an admission of prohibited conduct, since

the directives define certain “statements” to be “homosexual conduct.”

See DoD Dir. No. 1332.30, Enc. 2, paragraph C (App., H, 94a-96a)

(“[h]omosexual conduct includes ... a statement by a member that

demonstrates a propensity or intent to engage in homosexual acts. . .”)

(emphasis added). Specifically, under DoD Directive No. 1332.30, the

statement “I am homosexual” constitutes actionable “homosexual

conduct.” “Homosexual conduct,” the linchpin of this Act and Policy,

is therefore an all-encompassing non-literal term whose definition is

radically broadened to include both “homosexual acts” and mere

“statements” of orientation. Id. (App., H, 88a-110a). Thus,

notwithstanding the explicit “enlightened” premise of the Act and its

Directives that homosexual orientation is not a bar to continued military

service, the Directives authorize discharge solely on the basis of a

statement of that very orientation. /d. No conduct of any kind need ever

be shown or established, as shown by the experiences of the service

members in the instant cases. /d. It is by radical alterations of

conventional definitions that the Policy forces a “statement of

Orientation” into an admission of actionable “conduct.”

It is in this milieu that the Policy’s use of the word “propensity”

is relied on by the government to argue that it is “conduct,” not

“status,” that the Policy regulates. See, e.g., Holmes v. California Army

National Guard. Yet, conduct and status are, under the Policy,

indistinguishable, since the words “I am homosexual,” literally an

admission only of status, take on an entirely new meaning. Under the

Policy, “I am a homosexual” means that the speaker admits to engaging

in prohibited homosexual conduct or “acts.” In order to remain in the

service, the speaker must then rebut the statutory presumption that he or

she does not have the “propensity” to engage in conduct or acts. The

Act does not define the term “propensity,” but it defines a “homosexual

act” in broad language to mean:

(A) any bodily contact, actively undertaken or passively

permitted, between members of the same sex for the

purpose of satisfying sexual desires; and

(B) any bodily contact which a reasonable person would

understand to demonstrate a propensity or intent to engage

in an act described in subparagraph (A).

Id., section 654(f)(3) (App., G, 87a).

“Propensity” is defined in the Directives:

Propensity to engage in homosexual acts means more than an

abstract preference or desire to engage in homosexual acts; it

indicates a likelihood that a person engaged in or will engage in

homosexual acts.

DoD Dir. No. 1332.30, Enc. 1, paragraph 13 (App., H, 92a). Finally, the

Directive specifies factors to be considered “[i]n determining whether an ~

officer [who states that he or she is a homosexual] has successfully

rebutted the [statutory] presumption,” including, without limitation,

evidence regarding: “(1) [w]hether the officer has engaged in

homosexual acts; (2) [t]he officer’s credibility; (3) [t]estimony from

others about the officer’s past conduct, character, and credibility; (4)

[t]he nature and circumstances of the officer’s statement; and (5) [a]ny

other evidence relevant to whether the officer is likely to engage in

homosexual acts.” /d., Enc. 2, paragraph C.1.b(1)-(5) (App., H, 95a).

As of the time of hearing by the court below, only seven service members,

men and women, had “rebutted” the presumption created by their

statements of orientation; out of 845 men and women processed for

discharge, these seven constituted .0083 of the total.’

Declared homosexuals are, by dint of the Policy, presumed to

engage in prohibited conduct. This is the single distinction between the

current Policy and the policy it replaced. Previously, simply the status of

homosexuality was prohibited, and there was no need to impose upon the

words “I am a homosexual” any particular non-literal meaning. Their

mere utterance revealed a prohibited status and the speaker could 5e

discharged. Considering that a blatant status-based exclusion could >e

constitutionally infirm (see, e.g., Able v. United States, 880 F.Supp. 9€8,

975 (E.D.N.Y. 1995), aff'd 968 F.Supp. 850 (E.D.N.Y. 1997), the Policy

2 See Declaration of Douglas G. Chapman (App.., I, 11 1a-123a).

was worded in order to make those same words an admission of conduct,

on the notion that “conduct” was a firmer ground upon which to

exclude. Able v. United States, 880 F.Supp. at 976-977, aff'd 968

F.Supp. 850 (E.D.N.Y. 1997). Consider again this excerpt from the

Policy's implementing regulations: "...sexual orientation is considered a

personal and private matter, and does not bar entry into service or

continued service, unless manifested by homosexual conduct." Holmes v.

California Army National Guard, 124 F.3d at 1128, citing DoD Directive

1332.30 Enc. 2, paragraph C. (Emphasis added.) (App., H, 94a).

It bears re-emphasis that no conduct of any kind need ever occur .

and the “conduct” that gives the Policy its supposed legitimacy is

entirely a creature of the Policy itself. The same words, “I am

homosexual,” formerly an actionable admission of a prohibited status

(old policy), are now an admission of prohibited conduct (new Policy).

The new Policy thus places a new and distinct meaning on identical words

that under the old policy meant far less (status) than they do under the

new Policy (conduct). This is a contrivance that takes aim at a particular

group (admitted homosexuals), and removes from that group critical

constitutional protections under both the equal protection clause of the

Fifth Amendment and the First Amendment.

First, it is a violation of Equal Protection to isolate admitted

homosexuals as a class, to separately regulate them, and then to discharge

them for a single utterance. Furthermore, the isolating classification is

rooted in the armed forces’ rigid adherence to its ancient and persistent

anti-homosexual bias, which is now worded to maintain that service

members will react poorly to a known homosexual in their midst.

Though the armed forces list a number of justifications for the exclusion,

they all reduce to this: certain service members dislike homosexuals, and

in order to avoid their adverse reactions, known homosexuals must be

removed. This is precisely the type of antipathy that this Court has

steadfastly held cannot, under any circumstance, be the basis for a

government ciassification of human beings. Romer v. Evans, 517 U.S.

620 (1996), Palmore v. Sidoti, 466 U.S. 429 (1984), City of Cleburne v.

Cleburne Living Center, Inc., 473 U.S. 432 (1985). Classifications based

on antipathy are presumptively irrational. Cleburne, id., at 440.

Second, declaring as a premise that a particular status or

orientation is permitted while simultaneously penalizing any who admit of

the permitted status or orientation profoundly implicates the First

Amendment. The Policy also operates to place a particular meaning onto

those words, by transforming the simple declaration “I am a

homosexual” into an admission that the speaker will also engage in

prohibited conduct, regardless of the speaker’s actual intent by his or her

words. Finally, these are content-based restrictions on speech, which

require that they be strictly scrutinized by this Court.

Why should “conduct” be the keystone of this Policy? Put

another way, why was so much drafting effort directed at forcing a

particular meaning (“conduct”) on words (“I am a homosexual”) that

have an obvious literal meaning (“status”). It is because the Policy’s

drafters understood the challenge that faced them. Long lines of

precedent held that status-based exclusions are constitutionally suspect, '

that any government-sponsored classification drawn in deference to

prejudice is presumptively invalid, and that “free speech” is a core

constitutional value in our nation, and especially speech revealing one’s

identity or status. It was with these profound forces in mind that

“conduct” was seized on as the mechanism by which to avoid the

constitutionally messy entanglements that would occur if it were shown

that status and speech were the explicit targets of the Policy.

The desire to silence homosexuals is paramount, and the puzzling

disparity between the clear Congressional intent to keep homosexuals

closeted and the statute’s focus on “conduct” is clarified by the

legislative record: the artifice of “conduct” was built into the Policy

deliberately to shield it from attack in the courts. As the Congressional

hearings preceding adoption of the Policy drew to a close, the Senate

Committee sought advice regarding how to safeguard the Policy from

judic‘al scrutiny. See, e.g., Policy Concerning Homosexuality in the

Armed Forces: Hearings Before the Committee on Armed Services, 103d

Cong., 2nd Sess., at 777 (Senator Exon worrying thai courts would

overturn the Policy and allow acknowledged homosexuals to serve). As

the district court in Able v. United States, 880 F.Supp. 968, 976-977

(E.D.N.Y. 1995), aff'd 968 F.Supp. 850 (E.D.N.Y. 1997), concluded,

“fo}Jnce Congress decided to try to get all known homosexuals out of the

Services, the chief concern was to draft legislation to insure that the

enactment would survive judicial review.” Able v. United States, 880

F.Supp. 968, 976-977 (E.D.N.Y. 1995), aff'd 968 F.Supp. 850 (E.D.N.Y.

1997).

That “status” and “speech” are the true targets, and conduct no

more than a contrivance, is established by the Department of Defense’s

own assessment of the Policy. The official report on the Policy’s

implementation unwittingly emphasizes the utter irrelevance of conduct in

the Policy’s operation:

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First, we [the Department of Defense] found that the large

majority of the discharges for homosexual conduct are based on

the statement of service members who identify themselves as

homosexual, as opposed to cases involving homosexual acts. The

Services believe that most of these statement cases—although not

all of them—involve service members who voluntarily elected to

disclose their sexual orientation to their peers, supervisors or

commanders. (Italics added.)

Report to the Secretary of Defense: Review of the Effectiveness of the

Application and Enforcement of the Department's Policy on Homosexual

Conduct in the Military, Office of the Under Secretary of Defense

(Personnel and Readiness), April 1998 (“Report”), at page 2 (App., K,

133a). The Report later repeats the same point:

In an effort to gain a better understanding of this issue, we closely

studied the available information concerning the nature of

homosexual discharge cases last year. This review revealed that

more than 80 percent of the discharges for homosexual conduct

in Fiscal Year 1997: were ‘statement’ cases, i.e., cases where the

service member made a statement that he or she was homosexual,

as opposed to homosexual act or marriage cases. (Italics added.)

Id., at page 5. As if this were not enough evidence that the Policy as

implemented has nothing to do with the prevention of “conduct,” the

Report goes on to report the trivial number of “conduct” cases:

It bears mentioning that, notwithstanding the recent increases, the

number of discharges for homosexual conduct is a very small

percentage of total discharges. For example, in the first year of

military service, where discharge for homosexual conduct is most

frequent, such discharges represented only seven-tenths of one

percent [.007 per cent] of the total discharges of members in their

first year of service in Fiscal Year 1997. (Italics added).

Id., at page 5.

“Conduct” is not the target of this Policy. The Policy is aimed at

silencing homosexuals—and only homosexuals—in deference to the

feared adverse reactions of others.

‘ B. The Facts.

‘| Petitioner Richard P. Watson remains on active duty as a

commissioned officer, serving the Navy at United States Naval Station

Bremerton. He serves by order of the Ninth Circuit who ordered that the

district court’s original injunction (dated August 10, 1995) be extended

pending this petition for certiorari. Lieutenant Watson has a history of

decorated service, acknowledged by both courts below, and continues to

serve on active duty. Holmes v. California Army National Guard, 124

F.3d 1126 (9th Cir. 1997) (App., A, la-24a). Petitioner Andrew Holmes

has already been discharged and no injunction affects his service; he too

was decorated while on active duty. Holmes v. California Army National

Guard, 124 F.3d 1126 (9th Cir. 1997) (App., A, la-24a).

In October 1994, Lt. Watson submitted a written statement to his

commanding officer entitled Submission of Sexual Orientation Statement,

in which he stated, among other things, “I have a homosexual orientation.

I do not intend to rebut the presumption.” Watson Decl. (App., L, 158a-

159a) The presumption to which Lt. Watson referred is the Policy’s

presumption that a service member’s mere acknowledgment of a

homosexual orientation means that he intends to commit prohibited acts

since “rebutting” the presumption requires completely recanting the

statement of orientation. By stating that he would not “rebut” the

presumption, Lt. Watson meant simply that he would “not retract or

contradict the statement that I am gay.” /d.

Based on the Sexual Orientation Statement, the Navy convened a

Board of Inquiry on March 1, 1995. Based solely on Lt. Watson’s two-

sentence statement, the Board recommended that he be separated from the

Navy. Id.

On June 3, 1993, First Lieutenant Holmes informed his

commanding officer that “[a]s a matter of conscience, honesty and

pride, I am compelled to inform you that I am gay.” Holmes v.

California Army National Guard, 124 F.3d 1126 (9th Cir. 1997).

C. Proceedings Below.

Lieutenant Watson filed this action in the district court on July 25,

1995, seeking declaratory and injunctive relief, challenging the Policy

and his discharge on the grounds that the Policy, on its face and as

applied, violates his constitutional rights to equal protection and due

process under the Fifth Amendment and his right to freedom of speech

} }

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under the First Amendment. Lieutenant Watson also challenged the Naval

regulations by which his severance pay would be halved upon discharge

for homosexuality, as a violation of the Administrative Procedure Act, 5

U.S.C. § 706.

On August 10, 1995, the district court granted Lt. Watson’s

motion for a preliminary injunction against his pending discharge from

the Navy. On January 19, 1996, cross-motions for summary judgment

were argued, and on March 7, 1996, the district court entered its order

denying Lt. Watson’s motion for summary judgment and granting the

government’s motion for summary judgment, disposing of the first and

fifth amendment claims. Order (3/7/96) (App., M, 160a-179a). On

March 21, 1996, the court entered judgment for the government on those

claims and dismissed winout prejudice the APA claim. (App., N, 180a).

In March 1996, the district court in Holmes granted in part

Holmes’ partial motion for summary adjudication with respect to his

federal equal protection and free speech claims, alleged against all

defendants. (App., D, 46a-81a). Specifically, the district court concluded

that the presumption in section 654(b)(2), which is triggered by a

statement of homosexual orientation, unconstitutionally punishes Holmes

for speech and for status as a homosexual, rather than for conduct.

(App., D, 81a).

On May 15, 1996, Lieutenant Watson appealed, while the

government appealed from the district court’s finding in favor of

Lieutenant Holmes. The cases were consolidated for oral argument.

Arguments were heard in Seattle, Washington on July 8, 1996. The Ninth

Circuit issued its opinion on September 5, 1997, (App., A, la-24a), and

denied a petition for rehearing en banc on April 6, 1998, over the written

dissent of five of its members. (App., B, 25a-27a).

Framing the Ninth Circuit’s decision below was its unquestioning

acceptance of the armed forces’ proffered justifications for the Policy:

preservation of unit cohesion, preservation of good order and discipline,

prevention of privacy/sexual tension, and prevention of “acts.” The

Ninth Circuit did not consider any of these justifications under the

holdings of Palmore v. Sidoti, 466 U.S. 429 (1984), City of Cleburne v.

Cleburne Living Center, 473 U.S. 432 (1985), and most recently, Romer

v. Evans, 517 U.S. 620 (1996), and, in fact, did not even discuss these

cases, notwithstanding a staggering quantity of record evidence that the

only motivation for the Policy was the armed forces’ unyielding

prejudice against homosexuals. The Ninth Circuit concluded instead that

ROME

Lieutenants Watson and Holmes were discharged for “homosexual

conduct,” thus accepting at face value the contrivance that “conduct” is

what this Policy is intended to reach:

Because our own circuit precedent plus the authority from every

other circuit court that has addressed this issue establishes that the

military has a legitimate interest in discharging service members

on account of homosexual conduct in order to maintain effective

armed forces, we must reject Watson’s and Holmes’ argument that

there is no legitimate government interest in excluding

homosexuals from military service on account of homosexual

conduct.

Holmes v. California Army National Guard, 124 F.3d 1126, 1134.

REASONS FOR GRANTING THE PETITION

This Court cannot countenance result-driven disregard of its

precedents by lower courts who defer to the armed forces’ lamentable

track record in the treatment of those who are disliked by some in

military society. This Court must reckon with two circuits’ disregard of

long-standing precedents, and those circuits’ acceptance of something

this Court has forbidden: statutes drawn in deference to prejudice.

Most worrisome is the manner in which the courts below have

reached this result in consideration of the Policy. By their uncritical

acceptance of the assertion that the Policy reaches only “conduct,” the

courts enlarged the concept of “deference to Congress.” No longer was

“deference” limited to respect for Congress’s judgments on “military

matters” as this reference is conventionally understood. Rather, in both

Holmes v. California Army National Guard (9th Circuit) and in

Thomasson v. Perry (4th Circuit), “deference” was effectively construed

to provide the armed forces with a full exemption from constitutional

scrutiny on “military matters.”

The most acute danger wrought by these decisions is their patent

disregard of Romer v. Evans, 517 U.S. 620. The failure is all the more

egregious since Romer was the cfilmination of a long line of this Court’s

decisions forbidding antipathy as a basis for the government’s

classifications of human beings. Ignoring Romer and the critical cases

preceding it, the Ninth and Fourth Circuits have now divided our

constitutional democracy into two distinct and unrelated segments: the

non-uniformed civilian society to which Romer, Palmore and Cleburne

apply, and the uniformed society to which these cases have no application

whatsoever.

I. This Case Presents Questions of Exceptional Importance, and

the Decision of the Court of Appeals is Erroneous.

A. The Decision Below Ignores Compelling Precedents Of

This Court, And Should Not Be Allowed To Stand—Even If This Court

Employs The Least Scrutinizing Level Of Constitutional Review—Since It

Creates An Unprecedented Broad “Deference To Congress” Exemption

From This Court’s Command That Prejudice Can Play No Part In

Statutory Classifications Of Human Beings.

In determining whether an equal protection violation exists, there

are two steps. First, the reviewing court must determine whether the

classification is related to some permissible government purpose. The

classification must have justification beyond catering to mere prejudice; a

classification based on prejudice cannot withstand rational basis scrutiny.

City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 448

(1985): Palmore v. Sidoti, 466 U.S. 429, 433 (1984).

A classification rooted in prejudice is presumptively irrational. If

the record shows that a classification was adopted to serve an

impermissible purpose, or if the government identifies such a purpose in

defending the classification, the purpose fails the first prong of the

rational basis ‘est; the reviewing court must then be more skeptical in its

analysis of any other goals the government proffers. Cleburne, 473 U.S.

at 450; see also Vance v. Bradley, 440 U.S. 93, 97 (1979) (“[a] statute is

presumed constitutional only when there is no reason to “infer

antipathy”). This skepticism leads courts (1) to refrain from making up

new possible purposes for the classification which the state has not

advanced, Cleburne, 473 U.S. at 448; (2) to reject neutrally-worded

rationales that turn out to be disguised descriptions of government

capitulations to prejudice, stereotype or other improper interests, id. at

449; and (3) to strictly insist that proffered rationales be more than

hypothetical. Cleburne, 473 U.S. at 448.

Second, if a permissible government purpose has been found, the

reviewing court must next determine whether the classification in dispute

is rationally related to that purpose. In the case below, the court implicitly

rejected this Court’s formulation of rational basis review, did not evaluate

the Policy’s roots in prejudice, and uncritically accepted all of the armed

forces’ justifications at face value.

The court below explicitly offered “deference to Congress” to

explain its scant scrutiny of the Policy, citing Supreme Court precedent

for a proposition far broader than that actually articulated in the case.

Holmes v. California Army National Guard, 124 F.3d at 1133 (9th Cir.

1996) (“our review is especially deferential in the military context”),

citing Goldman v. Weinberger, 475 U.S. 503, 508 (1986).

This was a clearly erroneous and unwarranted expansion of the

concept of “deference.” As in Romer, the Policy operates as an absolute

exclusionary rule, inequitable in its application and onerous in its burdens

on human beings who, under the Policy, are classified according to a

revealed trait that some in the armed forces dislike. The courts, such as

the Ninth Circuit, may indeed be incompetent to rule on genuinely

military matters, defined as those related to the tactics and strategy

involved in fighting and preparing for war. See, e.g., Gilligan v. Morgan,

413 U.S. 1, 10 (1973). But this case and the Policy are not about

uniforms, weapons, tanks, bullets, troop movements, planes or aircraft

carriers. It is about the classification of human beings based on a disliked

trait unrelated to their fitness to serve. Classifications of this kind are not

uniquely military and the creation of them is not a skill in which the

military excels, shown by history’s condemnations of all of the military’s

past judgments in this area. See, e.g., Buttino v. Federal Bureau of

Investigation, 801 F.Supp. 298, 302 (N.D.Cal. 1992) (history has taught

that judicial deference to unsubstantiated assertions of “national

security” may lead to “sweeping deprivations of equal protection which,

with hindsight, are nearly universally condemned”). Contrary to the

Ninth Circuit’s implicit endorsement of military expertise in the

classification of humans, it is difficult to imagine an area in which the

military has less competence, especially in light of its record of animus

against the subjects of the very classification at issue in this case, as well as

a track record of exclusions now all universally condemned as odious.

See, e.g., Korematsu v. United States, 323 U.S. 214 (1944); see also

Policy Concerning Homosexuality in the Armed Forces: Hearings Before

the Committee on Armed Services, 103d Cong., 2nd Sesy. (1993), at 337

(Secretary of the Navy’s 1941 defense of the Navy’s black-exclusion

policy as warranted by considerations of unit cohesion and good order

and discipline), infra (App., J, 124a-125a).

Having expanded the concept of “deference,” the Ninth Circuit

rejected the equal protection objection that homosexuals cannot

constitutionally be singled out so particularly for disparate treatment

based on their revealed orientations, and implicitly approved the practical

result that identical platonic acts can have profoundly different

consequences, depending on the orientation (or perceived orientation) of

the actor. It ignored that if the armed forces’ actual interest was in the

prevention of “acts,” the Uniform Code of Military Justice (UCMJ) can

be even-handedly brought to bear against perpetrators without regard to

orientation. Philips v. Perry, 106 F.3d 1420 (9th Cir. 1997) (Fletcher, J.,

dissenting). It ignored that while a heterosexual may declare his or her

orientation, a homosexual is barred from doing so and instead is virtually

forced to lie about his or her orientation. It ignored that a heterosexual

may even declare an explicit intention to engage in any of the many

sexual acts prohibited by the UCMJ, and escape any punishment

whatsoever, while a homosexual is presumed to be prone to misbehavior

merely by utterance of words declarative of an orientation that is

permitted. It ignored that the heterosexual escapes any regulation of

words which may explicitly announce future misconduct, while the

homosexual’s mere statement of orientation is enough to warrant action

against the mere possibility of it. It also identified disparate treatment of

homosexuals as a long-standing characteristic of military law, citing for

this proposition an incorrect reference in the Policy to the Uniform Code

of Military Justice and the Manual for Courts Martial, both of which are

silent on the topic of homosexuality. Holmes v. California Army National

Guard, 124 F.3d 1126 (9th Cir. 1997), citing section 654(a)(13) of the

Policy.

B. It Is A Long-Standing Feature Of Supreme Court

Jurisprudence That Prejudice Is A Forbidden Basis For The Formulation

Of Government Policy; There Is No “Military Exception.”

While relying on the Policy’s incorrect summation of military law,

and having so radically expanded the concept of “deference,” the court

below did not cite any of this Court’s decisions that forbid statutory

classifications drawn in deference to prejudice; nor did it explain the

omission. The Fourth Circuit in Thomasson v. Perry, 80 F.3d 915 (4th

Cir. 1996), relied on by the majority below, took a far harsher and much

more detailed stand against judicial intervention, construing “deference”

to mean that the judiciary has no role in evaluating the constitutionality of

any act of Congress pertaining to the armed forces. Thomasson

misapplied City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432

(1985), stating that it applied only to suspect- classifications (an

extraordinary misapprehension), and cited Korematsu v. United States,

323 U.S. 214 (1944) for an affirmative proposition, even though this

discredited case is not commonly cited for any purpose other than to

emphasize its odiousness.

The Holmes court failed to discuss or even recognize the Policy’s

roots in prejudice. Nor did it discuss the absence of evidence in support

of the Policy’s classifications or the overwhelming record evidence

showing the Policy’s irrationality. Instead, it credited the armed forces’

proffered justifications simply because they were offered, questioned

none of them, did not look behind them, and did not evaluate their links

to animus. The court’s holding is thus in defiance of this Court’s

inalterably clear command that

[t]he Constitution cannot control ... prejudices but neither can it

tolerate them. Private biases may be outside the reach of the law,

but the law cannot, directly or indirectly, give them effect.

Palmore v. Sidoti, 466 U.S. 429, 433. There is no “military exception”

from this fundamental of American constitutional law. The circuits’

discussions in support of their holdings mark a complete abandonment of

this Court’s command that inquiry be made to determine whether

prejudice played a role in the formulation of statutory classifications of

human beings. In New York City Transit Authority v. Beazer, 440 U.S.

568 (1978), this Court recognized the

distinction between “invidious discrimination”—i.e.

classifications drawn “with an unequal eye and an uneven

hand,”"—and those special rules that are often necessary for

general benefits [such as] supplying water, preventing fires,

lighting districts, cleaning streets, opening parks, and many other

objects.

440 U.S. at 593 (internal citations omitted).

The court below fully adopted the government’s position that this

Policy’s sole aim was to target “conduct.” This, presumably, eliminated

the need for inquiry into whether “prejudice” was the actual aim,

notwithstanding a staggering quantity of evidence that this is so: a unit

will not be cohesive (because some may dislike homosexuals); good order

and discipline may be affected (because some may dislike obeying a

homosexual senior); privzcy may be implicated (because some may not

like being “peeked at” by voyeuristic homosexuals); “acts” are

prevented (since those with a homosexual orientation are so disposed to

engage in them that the Policy presumes that they will).

Apart from being unsupported by any legitimate record evidence,

these justifications self-evidently cater to those in military society who

may not like homosexuals. There can be no doubt that were it not for

long-standing, widespread prejudice against homosexuals, the Policy

would not exist. This common sense conclusion is reinforced, not

refuted, by the government's proffered justifications for the Policy, which

demonstrate that it was created to accommodate the presumed prejudices

of heterosexual service members.

i The Court Below Steadfastly Ignored Romer v. Evans, 517

U.S. 620 (1996).

In failing to acknowledge and consider the roots of the Policy in

anti-homosexual animus, the majority opinion below utterly ignored this

Court’s decision in Romer v. Evans, 517 U.S. 620 (1996). Although

Romer expressly holds that governmental regulation that is based on

prejudice against homosexuals cannot survive constitutional scrutiny, the

Ninth Circuit failed to discuss Romer’s impact on this case, except to cite

it for the negative proposition that homosexuality is not a suspect

classification. Holmes v. California Army National Guard, 124 F.3d

1126, citing Romer v. Evans, 517 U.S. 620.

Romer cannot be reconciled with the results reached below ane in

the Fourth Circuit. According to Romer, class-wide exclusions based on

animus are nearly unprecedented in our jurisprudence, and are repugnant

to a system premised on equality before the law. Romer v. Evans, 517

U.S. 620 (1996). Applied to the armed forces, this means that the

Congress cannot selectively deny constitutional rights to service members

based upon a revealed trait disliked by some in the military.

In Romer, the Court considered an amendment to the Colorado

constitution, passed by popular referendum and referred to colloquially

as “Amendment 2.” In invalidating the amendment, the Court found

that it explicitly placed homosexual men and women in a “solitary class”

and withdrew from that class—and only that class—the protection of the

laws. Romer v. Evans, 517 U.S. 620, 635-636. The Court ruled that such

a classification failed even the most deferential rational basis scrutiny.

Romer v. Evans, 517 U.S. 620, 631.

The Court’s ruling applies directly to the Policy in this case:

Amendment 2, according to the Court, was unconstitutional because it

identified persons by a single trait—homosexual orientation—and then

imposed upon them a sweeping exclusion. Romer v. Evans, 517 U.S.

620, 634-635. The Court found that laws “singling out a certain class of

citizens for disfavored legal status or general hardships are rare,” Romer

v. Evans, 517 U.S. at 634-635, and raise the “inevitable inference that the

disadvantage imposed is born of animosity toward the class of persons

affected.” Romer v. Evans, 517 U.S. 620, 634.

As with Amendment 2, the Don’t Ask, Don’t Tell Policy also

“has the peculiar property of imposing a broad and undifferentiated

disability on a single named group... .” Romer v. Evans, 517 U.S. 620,

632. The single named group isolated by the Policy is homosexual men

and women. The broad and undifferentiated disability is that only

homosexual men and women cannot speak of their orientations without

penalty; only homosexual men and women cannot act in any way that

communicates a homosexual orientation (notwithstanding that the Policy

states as a premise that the status is not prohibited); only homosexual

men’s and women’s statements of orientation are presumed to be

admissions of homosexual conduct (even criminal conduct); and only

those unable to convincingly repudiate homosexual status are discharged.

The Policy isolates and then takes aim at a class based on a single

characteristic that is disliked: homosexuality.

As in Romer, the Policy’s “sheer breadth is so discontinuous with

the reasons offered for it that [it] seems inexplicable by anything but

animus toward the class that it affects; it lacks a rational relationship to

legitimate state interests.” Romer v. Evans, 517 U.S. 620, 632. The

reasons offered for the Policy are familiar: unit cohesion, good order and

discipline, privacy/sexual tension, and prevention of “acts.” One of

these—prevention of “acts”—is, to quote Romer, “implausible,” Romer

v. Evans, 517 U.S. 620. 637: these cases involved no “acts,” and the

armed forces’ own study states that “acts” cases are a trivial percentage

of the total number of homosexual discharges, which are almost

exclusively “statement” cases.

The other justifications (unit cohesion, good order) cater solely to

prejudice, or, again in the words of Romer, to “personal or religious

objections to homosexuals.” Romer v. Evans, 517 U.S. 620, 634;

compare Policy Concerning Homosexuality in the Armed Forces:

Hearings Before the Committee on Armed Services, 103d Cong., 2nd Sess.

(1993), at 541 (informal survey found dislike of homosexuals); id. at 543

(“my men are Christian”), and id. at 557 (homosexuals breach “trust’’).

(App., J, 126a-130a). Furthermore, the language of prejudice is

universal. Consider this defense of a previous military exclusion:

The close and intimate conditions of life aboard ship, the

necessity for the highest possible degree of unity and espirit de

corps, the requirement of morale, all these demand that nothing

be done which may adversely affect the situation. Past experience

has shown irrefutably that the enlistment of Negroes other than

for mess attendance leads to disruptive and undermining

conditions.

Policy Concerning Homosexuality in the Armed Forces: Hearings Before

the Committee on Armed Services, 103d Cong., 2nd Sess. (1993), at 337.

So said the Secretary of the United States Navy in 1941. Id.

The imposition on homosexuals invalidated by Romer was not so

far-reaching as the imposition at-issue below. Amendment 2 did not

operate and could not be brought to bear against a particular individual,

Amendment 2 was class-wide and theoretical. This contrasts to the Policy.

The full apparatus of the Policy is designed to be brought to bear against

particular individuals, the instant they speak to identify themselves as

members of the disfavored class. Its personal consequences are far more

immediate and far more severe than Amendment 2. Amendment 2’s

invalidation commands the invalidation of this Policy.

D. The Court Wrongly Collapsed The Concepts Of Status And

Conduct; In Approving Of The Policy's Forced Transformation Of

“Status” Into “Conduct,” The Court Below Ignored A Line Of This

Court’s Precedents Forbidding Exactly This.

By accepting at face value the definitional “presumptions” built

into the Policy, the majority below approved the Policy’s conversion of

the Lieutenants’ statements of orientation and status into admissions of

“homosexual conduct.” By blurring or ignoring the clear distinction

between status and conduct, the Circuit ignored its own precedent, in

Meinhold v. United States Department of Defense, 34 F.3d 1469 (9th Cir.

1994), in which it had construed the military’s prior policy as

constitutional only if it did not require discharge based solely on a

statement of homosexual orientation. Meinhold v. United. States

Department of Defense, 34 F.3d at 1477-1478. The court below also

ignored this Court’s substantial line of cases holding that conduct or

misconduct may not be presumed from status. In Robinson v. California,

370 U.S. 660 (1962), the Court struck down a statute criminalizing the

“status” of drug addiction; in Powell v. Texas, 392 U.S. 514 (1968), the

Court disapproved of arrests based on chronic alcoholism. Even more to

the point, in Jacobson v. United States, 503 U.S. 540 (1992), the Court

stot Nae

held that even conduct itself does not demonstrate a propensity to engage

in the same conduct again.

Notwithstanding this Court’s history of explicit condemnations of

presumptions of conduct from status, the court below phrased the issue

with which it was faced in precisely those terms:

The legal issue posed by these consolidated appeals is whether the

military may discharge a service member based on an inference

of homosexual conduct from his admission of homosexual

orientation, without corroborating evidence of conduct or intent.

Holmes v. California Army National Guard, 124 F.3d 1126, 1131-1132.

The court below resolved this issue by concluding that the armed forces

may do exactly what this Court has permitted no other agency of federal,

state, or local government to do, presume “conduct” from status:

In sum, we find that the presumption is rationally related to the

government’s interest of excluding persons from military service

based on homosexual conduct. Accordingly, Watson’s and

Holmes’ discharges were based on an inference of homosexual

conduct and not on their homosexual orientation.

Holmes v. California Army National Guard, 124 F.3d 1126, 1134.

E. Turning To The Petitioners’ First Amendment Challenge,

The Court Was Similarly Dismissive, Holding That The Policy Reached

Only “Conduct,” Not “Speech.”

“Because Watson and Holmes were discharged for their conduct

and not for speech, the First Amendment is not implicated.” See Holmes

v. California Army National Guard, 124 F.3d 1126, 1136, citing

Thomasson, 80 F.3d at 931-934. This particular finding required that the

court below ignore the way the Policy achieved this—by transforming

“status” into “conduct.” The court below did not address the point that

no conduct need ever occur. Nor did it address the fact that the

“conduct” ingredient was purely a creature of the statute, not of the

service member, who need only speak to be discharged. The court did

not address the plain irony of forbidding “speech” about a supposedly

permitted status. The dissent, however, did:

There can be no doubt that the [Policy] severely burdens speech.

It unquestionably has the effect of chilling speech by homosexual

service members—speech that is of tremendous importance to the

individuals involved, speech that goes to their right to

communicate the core of their emotions and identity to others.

Given the regulation’s provisions that permit homosexuals to

serve in the armed forces, and that punish only homosexual

conduct, there is no reasonable basis for prohibiting a service

member from engaging in speech that serves only to declare his

or her homosexual status.

Holmes v. California Army National Guard, 124 F.3d 1126, 1136 (1996)

(Reinhardt, J., dissenting).

The opinion below did not discuss the arguments that the Policy

restricts speech based on its content and viewpoint, and that this imposes

the most suspect type of burden on speech, contrary to R.A.V. v. City of

St. Paul, 505 U.S. 377, 382 (1992). See also Rosenberger v. Rector and

Visitors of the University of Virginia, 518 U.S. 819 (1995) (“It is

axiomatic that the government may not regulate speech based on its

substantive content or the message it conveys”); Simon & Shuster v. New

York Crime Victims Bd, 502 U.S. 105, 116 (1991) (“The First

Amendment presumptively places [content-based] discrimination beyond

the power of the Government”). The court disregarded this Court’s

holding that the ability to communicate one’s identity as a homosexual is

protected speech. See Hurley v. Irish-American Gay, Lesbian and

Bisexual Group of Boston, 515 U.S. 557 (1995). The court’s dissent

from denial of en banc review recognized the Policy’s acute restrictions

of basic First Amendment freedoms. Holmes v. California Army National

Guard, 124 F.3d 1126 (9th Cir. 1998). (Pregerson, J., joined by

Kascinski, J., and Reinhardt, J.).

As with equal protection review, “deference” is no justification

for the sweeping result reached below. Although judicial review of First

Amendment challenges in the military is, indeed, deferential, “the

military’s need for discipline and order, which underlies such deference,

does ‘not, of course, render entirely nugatory in the military context the

guarantees of the First Amendment.’” See, e.g., Goldman v. Weinberger,

475 U.S. 503, 507 (1986). In the military context, the Court has required

at least that restrictions on speech burden it “‘no more than is reasonably

necessary to protect a substantial government interest.” Brown v. Glines,

444 U.S. 346, 356 (1980); see also Greer v. Spock, 424 U.S. 828 (1976).

None of the First Amendment cases decided by this Court in the military

Setting addressed the kind of presumptively invalid, content and

viewpoint-based restrictions involved here.

While failing to consider this line of First Amendment cases, the

court below gave full voice to the justifications offered by the armed

forces. Yet the only rationales offered in support of the Policy are those

stating that homosexuals affect morale, discipline and unit cohesion

because other service members will take offense at having acknowledged

homosexuals in their midst. Such a rationale can never be a legitimate

basis for a restriction of protected speech:

If there is a bedrock principle underlying the First

Amendment, it is that the government may not prohibit

the expression of an idea simply because society finds the

idea itself offensive or disagreeable.

Texas v. Johnson, 491 U.S. 397, 414 (1989). See also R.A.V. v. City of

St. Paul, 505 U.S. at 382; Tinker v. Des Moines Indep. Community School

District, 393 U.S. 503, 509 (1969). Congress did what it cannot do:

enact a statute whose rationale is based on the reactions of others.

CONCLUSION

For the foregoing reasons, the petition for a wmit of certiorari

should be granted.

Ao t, .

Yh os ba Lew f f

- Keith L. Slenkovich*

Christopher J. Bakes

Kipp C. Wordell

BAKES & SLENKOVICH, LLP

525 University Avenue

Palo Alto, California 94301

Todd E. Thompson

Elizabeth Scott

HOWARD, RICE, NEMEROVSKI,

CANADY, FALK & RABKIN

Four Embarcadero Center

San Francisco, California 94111

*Counsel of Record Attorneys for Petitioners

APPENDIX A

(Cite as: 124 F.3d 1126)

Andrew HOLMES, First Lieutenant, Plaintiff-Appellee,

CALIFORNIA ARMY NATIONAL GUARD; Tandy Bozeman, Major,

in his official capacity;

Pete Wilson, Governor, in his official capacity, Defendants-

Appellants.

Andrew HOLMES, First Lieutenant, Plaintiff-Appellee,

CALIFORNIA ARMY NATIONAL GUARD; Tandy Bozeman, Major,

in his official capacity;

Pete Wilson, Governor, in his official capacity; U.S. Army National

Guard; United States of America; William S. Cohen, Secretary of Defense,

Defendants-Appellants.

Richard P. WATSON, Lieutenant, Plaintiff-Appellant,

William S. COHEN, Secretary of Defense; John Dalton,

Secretary of the Navy;

United States of America, Defendants-Appellees.

Nos. 96-15855, 96-15726 and 96-35314.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted July 8, 1996.

Submission vacated Aug. 16, 1996.

Resubmitted April 7, 1997.

Decided Sept. 5, 1997.

Christopher J. Bakes, Douglas G. Chapman III, Bakes & Chapman, San

Francisco, CA, for appellant Watson. Kim M. Settles, Deputy Attorney

General, Oakland, CA, for State appellants in Holmes. E. Roy Hawkens,

Attorney, United States Department of Justice, Washington, DC, for Federal

appellants in Holmes <nd the appellees in Watson.

Todd E. <sompson and L. Jay Kuo, Howard, Rice, Nemerovski, Canady,

Falk & Xabkin, San Francisco, CA, for appellee Holmes. Melissa Wells-

Petry, Washington, DC, for amicus curiae Family Research Council.Karen M.

McGaffey, Bogle & Gates P.L.L.C., Seattle, WA, for amicus curiae

Northwest Women's Law Center and Kirk Childress, Servicemembers Legal

Defense Network, Washington, DC, for amicus curiae Servicemembers Legal

Defense Network.

Appeals from the United States District Court for the Northern District of

California; Saundra B. Armstrong, District Judge, Presiding. D.C. No. CV-

95- 00688-SBA.

Appeal from the United States District Court for the Western District of

Washington; Thomas S. Zilly, District Judge, Presiding. D.C. No. CV-95-

01141- TSZ.

Before: REAVLEY, [FN*] REINHARDT, and WIGGINS, Circuit Judges.

FN* Hon. Thomas M. Reavley, Senior United States Circuit Judge for the

Fifth Circuit, sitting by designation.

Opinion by Judge WIGGINS; Dissent by Judge REINHARDT. WIGGINS,

Circuit Judge:

We review the constitutional challenges of two service members to

the military's current "don't ask/don't tell" policy on homosexuals. [FN1]

Pursuant to the policy, Lieutenant Richard P. Watson was discharged from the

United States Navy and First Lieutenant Charles Andrew Holmes was

discharged from the California Army National Guard ("CANG") and the

United States Army National Guard ("USANG"). With respect to Watson,

the district court granted summary judgment in favor of the Navy, holding that

his discharge was essentially based on homosexual conduct and, therefore, the

"don't ask/don't tell" policy was constitutional as it applied to him. Watson v.

Perry, 918 F.Supp. 1403 (W.D.Wash.1996). With respect to Holmes, the

district court granted summary judgment in Holmes's favor as to his claims

for violation of his constitutional rights to equal protection and free speech,

holding that his discharge was unconstitutional because it was based solely on

his statement that he is homosexual. Holmes v. California Army Nat’) Guard,

920 F.Supp. 1510 (N.D.Cal.1996).

;

FN1. The "don't ask/don't tell” policy refers to 10 U.S.C. § 654 (Supp.1994)

(codifying principal elements of the President's "Policy on Homosexual

Conduct in the Armed Forces,” announced July 19, 1993) and the Department

of Defense's ("DOD") implementing regulations, effective February 28, 1994.

See, e.g., DOD Directive 1332.30 (Separation c Regular Commissioned

Officers) (Mar. 4, 1994). Because the regulations simply implement the

policy of the statute in nearly identical terms, we refer interchangeably to §

654, the regulations, and the policy.

Watson and the defendants in Holmes appeal the respective district

court orders, addressing the constitutionality of 10 U.S.C. § 654(b)(2) and its

implementing regulations. [FN2] We have jurisdiction under 28 U.S.C. §

1291. On our own motion, we consolidated the appeals. Because we

conclude that § 654(b)(2) and its implementing regulations are constitutionally

valid, we affirm the district court in Watson and reverse in Holmes.

FN2. The Servicemembers Legal Defense Network and the Northwest

Women's Law Center filed a joint amicus brief in support of Watson and

Holmes. The Family Research Council filed an amicus brief in support of the

appellees in Watson, and a separate amicus brief in support of the federal

appellants (the USANG, United States, and Department of Defense Secretary

William J. Perry) in Holmes.

BACKGROUND

The "Don't Ask/Don't Tell" Policy

The present policy regarding homosexuals in the military, commonly

known as the "don't ask/don't tell" policy, is the product of extensive

deliberation by Congress and the President. When it enacted the policy,

Congress made a series of legislative findings, including the following: (1)

that military life is fundamentally different from civilian life in that military

society is characterized by numerous restrictions on personal behavior that

would not be acceptable in civilian society, 10 U.S.C. § 654(a)(8)(B); (2) that

standards of conduct for members of the armed forces must apply at all times

to members whether on or off base and whether on or off duty, id. §

654(a)(10); (3) that the potential duties of the armed forces make it necessary

for members of the armed forces to accept involuntarily living conditions

characterized by forced intimacy with little or no privacy, id. §654(a)(12); (4)

that "[t]he prohibition against homosexual conduct is a longstanding element

of military law that continues to be necessary in the unique circumstances of

military service," id. § 654(a)(13); and (5) that "[t]he presence in the armed

forces of persons who demonstrate a propensity or intent to engage in

ah tchalabin nse

homosexual acts would create an unacceptable risk to the high standards of

morale, good order and discipline, and unit cohesion that are the essence of

military capability," id. § 654(a)(15).

The "don't ask/don't tell" policy differs from the military's former policy

on homosexuals in that the statement, "homosexuality is incompatible with

military service," was eliminated. See DOD Directive 1332.14, 22 C.F.R. pt.

41, App. A at 93 (1981) ("old policy"). As a result, the military no longer

asks new recruits questions about their sexual orientation. Also unlike the old

regulatory policy, the regulations implementing the new policy stipulate that

sexual orientation is considered a personal and private matter, and does not bar

entry into service or continued service, unless manifested by homosexual

conduct. DOD Directive 1332.30 at 2-1(C). However, the "don't ask/don't

tell" policy continues to require discharge of any service member (1) who

engages in or intends to engage in homosexual acts, see 10 U.S.C.

§ 654(b)(1); DOD Directive 1332.30 at 2-2(C)(1)(a) (hereinafter "acts

prong”); (2) who makes a statement that he is homosexual and fails to rebut

the presumption, raised by that statement, that he has a propensity to engage in

homosexual acts, see 10 U.S.C. § 654(b)(2); DOD Directive 1332.30 at

2- 2(C)(1)(b) (hereinafter "statement prong"); or (3) who has married or

attempted to marry a person of the same biological sex, see 10 U.S.C. §

654(b)(3); DOD Directive 1332.20 at 2-2(C)(1)(c). [FN3] "Homosexual" is

defined as "a person, regardless of sex, who engages in, attempts to engage in,

has a propensity to engage in, or intends to engage in homosexual acts, and

includes the terms ‘gay’ and 'lesbian.'" Id. § 654(f)(1). "Homosexual act”

means:

FN3. Section 654(b) provides in full:

(b) Policy. A member of the armed forces shall be separated from the armed

forces under regulations prescribed by the Secretary of Defense if one or more

of the following findings is made and approved in accordance with procedures

set forth in such regulations:

(1) That the member has engaged in, attempted to engage in, or solicited

another to engage in a homosexual act or acts unless there are further

findings, made and approved in accordance with procedures set forth in

such regulations, that the member has demonstrated that--

(A) such conduct is a departure from the member's usual and

customary behavior;

(B) such conduct, under all the circumstances, is unlikely to recur;

intimidation;

(D) under the particular circumstances of the case, the member's

continued presence in the armed forces is consistent with the interests

of the armed forces in proper discipline, good order, and morale; and

(E) the member does not have a propensity or intent to engage in

homosexual acts.

(2) That the member has stated that he or she is a homosexual or bisexual,

or words to that effect, unless there is a further finding, made and

approved in accordance with procedures set forth in the regulations, that

the member has demonstrated that he or she is not a person who engages

in, attempts to engage in, has a propensity to engage in, or intends to

engage in homosexual acts.

(3) That the member has married or attempted to marry a person known

to be of the same biological sex.

10 U.S.C. § 654(b) (emphasis added).

(A) any bodily contact, actively undertaken or passively permitted,

between members of the same sex for the purpose of satisfying sexual

desires; and

(B) any bodily contact which a reasonable person would understand to

demonstrate a propensity or intent to engage in an act described in

subparagraph (A). Id. § 654(f)(3).

The DOD Directive under which Watson and Holmes were discharged

provides, among other things:

Homosexual conduct is grounds for separation from the Military

Services under the terms set forth in paragraph C.1.b, below.

Homosexual conduct includes homosexual acts, a statement by a

member that demonstrates a propensity or intent to engage in

homosexual acts, or a homosexual marriage or attempted marriage.

A statement by a member that demonstrates a propensity or intent to

engage in homosexual acts is grounds for separation not because it |

reflects the member's sexual orientation, but because the statement

indicates a likelihood that the member engages in or will engage in

homosexual acts. A member's sexual orientation is considered a

personal and private matter, and is not a bar to continued service under

this section unless manifested by homosexual conduct in the manner

described in section C.1. DOD Directive 1332.30 at 2-1(C)

(emphasis added). The Directive provides that the statement, "I am

gay,” is sufficient to trigger the presumption. Id. at 8-1(B)(4)(b).

[FN4] Paragraph (C)(1)(b) spells out the findings required to rebut

the presumption under the acts and statement prongs of § 654(b) in

virtually identical terms to § 654(b)(1), (2), (3). Id. at 2-2(C)(1)(a)-

(b). [FNS]

FN4. The Guidelines for Fact-Finding Inquiries Into Homosexual Conduct

section of the DOD Directive provides:

A "statement that a member is a homosexual or bisexual, or words to that

effect," means (1) language or behavior that (2) a reasonable person would

believe (3) was intended to convey the statement (4) that a person engages in,

attempts to engage in, or has a propensity or intent to engage in homosexual

acts. This may include statements such as "I am homosexual," "I am gay," "I

am a lesbian," "I have a homosexual orientation,” and the like.

DOD Directive 1332.30 at 8-1(B)(4)(b).

FNS. As stated above, to rebut the presumption of homosexual conduct, a

service member must demonstrate that he is not a person who engages in,

attempts to engage in, has a propensity to engage in, or intends to engage in

homosexual acts. 10 U.S.C. § 654(b)(2); DOD Directive 1332.30 at 2-

2(C)(1)(b). Unlike the statute, the Directive defines "propensity to engage in

homosexual acts":

Propensity to engage in homosexual acts means more than an abstract

preference or desire to engage in homosexual acts; it indicates a likelihood that

a person engages in or will engage in homosexual acts. In determining

whether an officer has successfully rebutted the presumption that he or she

engages in, attempts to engage in, or has a propensity or intent to engage in

homosexual acts, some or all of the following may be considered:

(a) Whether the member has engaged in homosexual acts;

(b) The officer's credibility;

credibility;

(d) The nature and circumstances of the officer's statement;

(e) Any other evidence relevant to whether the officer is likely to engage in

homosexual acts.

(This list is not exhaustive; any other relevant evidence may also be

considered.)

Id.

Facts and Prior Proceedings

Watson.

Watson enlisted in the United States Navy in 1981 and was promoted to

the rank of lieutenant in 1991. His fourteen-year Naval career is marked with

many awards and honors. Before initiation of his discharge proceedings,

Watson served as an Assistant Professor of Naval Science in the Naval

Reserve Officers Training Corps. On October 28, 1994, Watson delivered to

his commanding officer a one-page document, entitled "Submission of Sexual

Orientation Statement," in which he stated: "I have a homosexual orientation.

I do not intend to rebut the presumption.” The presumption referred to by

Watson is the rebuttable presumption in 10 U.S.C. § 654(b)(2), which

provides that a service member may rebut his statement of homosexuality by

demonstrating that he is not a person who engages in, attempts to engage in,

has a propensity to engage in, or intends to engage in homosexual acts.

Watson stated that he submitted his statement of sexual orientation because of

his commitment to honesty and desire to eliminate any potential for blackmail

attempts in the future.

Based on Watson's letter, the Navy issued a show cause order, requiring

Watson to show cause before a three-member Board of Inquiry why he

should be retained in the Navy. The Board of Inquiry convened on March 1,

1995, Although the Board instructed Watson, who was represented by

counsel, that he needed to rebut the presumption that he engages in or intends

to engage in homosexual acts to avoid discharge, Watson presented no such

evidence; instead, he presented evidence of his excellent service record. As a

result, the Board unanimously recommended that Watson be honorably

discharged "by reason of homosexual conduct." On March 28, 1995,

Watson's civilian counsel submitted a Letter of Deficiency to the Commander

of Naval Base Seattle and the Board of Review for their consideration in

reviewing the Board of Inquiry's decision. The following statement by Watson

was included with the letter:

a. I expressly deny that I have engaged in any homosexual conduct with

any military student or service member.

b. lexpressly deny that I engaged in any homosexual conduct during the

performance of military duty, or while on any military installation.

¢. expressly deny that I have any intent or propensity to engage in any

conduct described above.

The Commander concurred with the Board of Inquiry's findings,

concluding that Watson's statement failed to address whether Watson had any

intent or propensity to engage in off-base, off-duty homosexual conduct with

nonmilitary personnel and that the statement therefore failed to rebut the

presumption of homosexual conduct. He recommended to the Chief of Naval

Personnel that Watson be discharged. Both the Board of Inquiry and the

Commander rejected Watson's argument that, because he was not represented

by counsel when he submitted his original statement about his intention not to

rebut the presumption, that statement should be construed to mean only that he

did not want an embarrassing inquiry into his private life. The Board of

Review voted unanimously to recommend Watson's separation from service

with an honorable discharge. In June 1995, the Navy notified Watson that he

would be discharged from the Navy in July 1995.

On July 25, 1995, Watson commenced this action for injunctive and

declaratory relief against Secretary of Defense William J. Perry, [FN6]

Secretary of the Navy John E. Dalton, and the United States. The complaint

alleged that the basis for his impending discharge, the "don't ask/don't tell"

policy, on its face or as applied, violates Watson's right to equal protection and

substantive due process under the Fifth Amendment and to free speech under

the First Amendment. It also alleged that the Navy's refusal to provide

Watson full severance pay violates the Administrative Procedure Act

("APA"), 5 U.S.C. § 706. The district court preliminarily enjoined the Navy

from discharging Watson or taking any adverse action against him pending

the outcome of the litigation. We have ordered that the preliminary injunction

remain in effect pending this appeal.

FN6. Pursuant to Fed. R.App. P. 43(c), we have substituted present Secretary

of Defense William S. Cohen for former Secretary of Defense William J.

Perry.

In March 1996, the district court granted summary judgment in favor of

the government on Watson's constitutional claims. The court rejected

Watson's argument that his discharge was based on speech regarding his

homosexual orientation rather than homosexual conduct. Instead, the district

court held that the "don't ask/don't tell" policy, as applied to Watson, was

constitutional because his discharge was based on a likelihood of homosexual

conduct by Watson, as inferred by his statements. The district court

concluded that Watson failed to rebut the presumption in § 654 by upholding

the government's inference from Watson's statements that he manifested an

intent or propensity to engage in off-base, off-duty homosexual conduct with

nonmilitary personnel. Also based on the inference of Watson's conduct, the

district court held that Watson's due process and First Amendment claims

lacked merit. The district court entered judgment in favor of the government

and dismissed without prejudice Watson's APA claim.

Holmes.

Holmes enlisted in the CANG in 1986 and was sworn in as an officer in

1989. As a member of the CANG, Holmes participated in drills 48 times a

year over weekends. Also in 1989, Holmes received a commission as an

officer in the USANG. He earned many honors during his service, including

promotion to First Lieutenant and Combat Military Police Platoon Leader. On

June 3, 1993, represented by civilian counsel, Holmes voluntarily sent a

memorandum to his commanding officer at the CANG, in which he stated,

inter alia: "[A]s a matter of conscience, honesty and pride, I am compelled to

inform you that I am gay.” Based on this memorandum, the commanding

officer initiated a request to withdraw Holmes's federal recognition as an

officer in the USANG. [FN7]

FN7. Federal recognition is the acknowledgment that an officer of a state

national guard unit may become an officer of the United States Army National

Guard and meets the requirements for holding such position in the USANG.

32 U.S.C. § 307(d).

On May 21, 1994, a Federal Recognition Withdrawal Board commenced

proceedings to determine if Holmes's federal recognition should be

withdrawn. CANG and USANG representatives attended the hearing.

Holmes was represented by civilian and military counsel. Applying the

DOD's new regulations under the "don't ask/don't tell" policy, the Board f>und

that Holmes's admission of his sexual orientation triggered the presumption of

homosexual propensity under §654(b)(2) and required him to rebut that

presumption to retain his federal recognition. Like Watson, Holmes presented

only evidence of his excellent service record at the hearing. As a result, the

Board recommended to the Chief of the National Army Guard Bureau, a joint

bureau of the Departments of the Army and Air Force, that Holmes's federal

recognition be withdrawn. The Chief reviewed and approved the Board's

findings on September 12, 1994. In October 1994, the USANG discharged

Holmes. Thereafter, in January 1995, the CANG notified Holmes of his

discharge from the part of CANG subject to being called into federal service,

based solely on his loss of federal recognition. Holmes currently holds an

officer position in the state and United States reserve groups that does not

require federal recognition and is not subject to being called into federal

service.

In February 1995, Holmes commenced this action for injunctive and

declaratory relief and for damages against the USANG, United States, and

10a

Secretary of Defense William J. Perry [FN8] (collectively "federal

appellants"); and the CANG, Major General Tandy Bozeman, and California

Governor Pete Wilson (collectively “state appellants"). His first amended

complaint alleged thirteen claims based on California state law and the United

States Constitution. In March 1996, the district court granted in part Holmes's

cross-motion for summary adjudication with respect to his federal equal

protection and free speech claims, alleged against all defendants. Specifically,

the district court concluded that the presumption in § 654(b)(2), which is

triggered by a statement of homosexual orientation, unconstitutionally

punishes Holmes for speech and for status as a homosexual, rather than for

conduct. The court also dismissed Holmes's remaining federal claims and

dismissed without prejudice his state-law claims. The district court further

ordered that Holmes be reinstated to the part of the CANG subject to being

called into federal service and that his federal officer status in the USANG be

restored. Holmes stipulated that he would not seek reinstatement pending this

appeal.

FN8. See supra note 6.

DISCUSSION

I. STANDARD OF REVIEW

We review a grant of summary judgment de novo. Warten v. City of

Carlsbad, 58 F.3d 439, 441 (9th Cir.1995), cert. denied, 516 U.S. 1171, 116

S.Ct. 1261, 134 L.Ed.2d 209 (1996). "We must determine whether the

evidence, viewed in a light most favorable to the non-moving party, presents

any genuine issues of material fact and whether the district court correctly

applied the law.” Id.

II. ANALYSIS

The legal issue posed by these consolidated appeals is whether the military

may discharge a service member based on an inference of homosexual

conduct from his admission of homosexual orientation, without corroborating

evidence of conduct or intent. The “don't ask/don't tell" policy expressly

provides for the discharge of any service member who states that he is a

homosexual unless he rebuts the presumption that he will likely engage in

homosexual conduct. See 10 U.S.C. § 654(b)(2); DOD Directive 1332.30 at

2-2(C)(1)(b). Both Watson and Holmes challenged the constitutionality of the

policy's presumption of homosexuality that is created solely by a statement of

homosexual orientation, such as "I have a homosexual orientation" or "I am

gay." The constitutionality of § 654(b)(2)-the statement prong of the military's

lla

new policy-is an issue of first impression in this circuit. Only the Second,

Fourth, and Eighth Circuits have addressed this question to date. See

Richenberg v. Perry, 97 F.3d 256 (8th Cir.1996) (holding that § 654(b)(2)

does not violate the Fifth Amendment's equal protection component or the

First Amendment right to free speech); Able v. United States, 88 F.3d 1280

(2d Cir.1996) (stating that if § 654(b)(1) was valid, § 654(b)(2) would also be

valid but not deciding constitutionality of § 654(b)(1)'s prohibition against

homosexual conduct); Thomasson v. Perry, 80 F.3d 915 (4th Cir.) (en banc)

(holding that § 654(b)(2) does not violate the Fifth Amendment's rights to

equal protection and substantive due process or the First Amendment's right to

free speech), cert. denied, --- U.S. ----, 117 S.Ct. 358, 136 L.Ed.2d 250

(1996). For the following reasons, we follow the reasoning of Richenberg,

Able, and Thomasson, and we conclude that § 654(b)(2) and its implementing

regulations are constitutional on their face and as applied to Watson and

Holmes.

A. Equal Protection Challenge

We consider first whether the statute and implementing regulations, on

their face and as applied, [FN9] violate the equal protection component of the

Due Process Clause of the Fifth Amendment. We are guided in this inquiry

by our recent decision in Philips v. Perry, 106 F.3d 1420 (9th Cir.1997), in

which we upheld the acts prong of § 654(b)(1) against an equal protection

challenge.

FN9. The district court in Watson held that application of the "don't ask/don't

tell" policy was constitutional as applied to Watson and, therefore, did not

reach Watson's facial challenge to the statute. In Holmes, it appears that the

district court held that the statute's statement prong is facially invalid.

1. Rational Basis Review

"The Equal Protection Clause of the Fourteenth Amendment commands

that no State shall ‘deny to any person within its jurisdiction the equal

protection of the laws,’ which is essentially a direction that all persons

similarly situated should be treated alike." City of Cleburne v. Cleburne

Living Center, Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313

(1985). We have held that "it is ... clear that there is an equal protection

component of the Due Process Clause of the Fifth Amendment which applies

to the federal government." High Tech Gays v. Defense Indus. Sec. Clearance

Office, 895

F.2d 563, 570 (9th Cir.1990). Because homosexuals do not constitute a

Suspect or quasi-suspect class, we subject the military's "don't ask/don't tell"

12a

policy to rational basis review. Philips, 106 F.3d at 1425 (citing High Tech

Gays, 895 F.2d at 574); see also Romer v. Evans, 517 U.S. 620, ----, 116

S.Ct. 1620, 1627, 134 L.Ed.2d 855 (1996) (applying rational basis review and

upholding an equal protection challenge to Colorado's Amendment 2, which

prohibited any state or local legislative, executive or judicial action designed to

protect homosexual persons). In order to show that the statute and

accompanying regulations are invalid, Watson and Holmes must show that

they are not rationally related to any legitimate governmental purpose. Heller

v. Doe, 509 U.S. 312, 320, 113 S.Ct. 2637, 2642-43, 125 L.Ed.2d 257

(1993).

In a series of statements, the Heller Court made it clear that our inquiry is

limited: "rational-basis review in equal protection analysis ‘is not a license for

courts to judge the wisdom, fairness, or logic of legislative choices,’ " id. at

319, 113 S.Ct. at 2642 (quoting FCC v. Beach Communications, Inc., 508

U.S. 307, 313, 113 S.Ct. 2096, 2101, 124 L.Ed.2d 211 (1993)); “[a] statute is

presumed constitutional ... and '[t]he burden is on the one attacking the

legislative arrangement to negative every conceivable basis which might

support it,’ whether or not the basis has a foundation in the record," id. at 320-

21, 113 S.Ct. at 2643 (quoting Lehnhausen v. Lake Shore Auto Parts Co., 410

U.S. 356, 364, 93 S.Ct. 1001, 1006, 35 L.Ed.2d 351 (1973)); and, "courts are

compelled under rational-basis review to accept a legislature's generalizations

even when there is an imperfect fit between means and ends,” id. at 321, 113

S.Ct. at 2643. Additionally, our review is especially deferential in the military

context. Goldman v. Weinberger, 475 U.S. 503, 508, 106 S.Ct. 1310, 1313-

14, 89 L.Ed.2d 478 (1986); see also Gilligan v. Morgan, 413 U.S. 1, 10, 93

S.Ct. 2440, 2445-46, 37 L_Ed.2d 407 (1973) ("[I]t is difficult to conceive of

an area of governmental activity in which the courts have less competence.").

As we recently recognized again in Philips, " '[r)jegulations which might

infringe constitutional rights in other contexts may survive scrutiny because of

military necessities.'" 106 F.3d at 1425 (quoting Beller v. Middendorf, 632

F.2d 788, 811 (9th Cir.1980)). Accordingly, we must be careful to avoid

substituting our judgment and our evaluation of the evidence to justify a

policy. See Rostker v. Goldberg, 453 U.S. 57, 68, 101 S.Ct. 2646, 2653-54,

69 L.Ed.2d 478 (1981).

2. Legitimate State Interest

Under rational basis review, we must initially examine the government's

asserted interest in excluding those who engage in homosexual conduct from

military service. The government contends that excluding homosexuals who

engage in or have the propensity to engage in homosexual acts from military

service furthers discipline and combat readiness in the military by preventing

13a

risks to unit cohesion posed by the presence of such homosexuals. See 10

U.S.C. § 654(a)(15). Although this interest is subject to criticism, see, ¢.g.,

Philips, 106 F.3d at 1434-38 (Fletcher, J., dissenting) (arguing that "unit

cohesion" and other rationales are a pretext for the disapproval of

homosexuality on the part of heterosexuals), the government's interest in

maintaining effective armed forces has been repeatedly upheld by this circuit.

Id. at 1425 ("[MJaintaining effective armed forces is indisputably a compelling

governmental purpose."); Hatheway v. Secretary of the Army, 641 F.2d

1376, 1382 (9th Cir.1981) ("The government has a compelling interest in

maintaining a strong military force. Underlying our holding in Beller was the

judgment that those who engage in homosexual acts severely compromise the

government's ability to maintain such a force. That judgment was the basis

for our holding that the Navy's policy of discharging all such persons was

constitutionally permissible."); Beller, 632 F.2d at 812 (Kennedy, J.) ("In

view of the importance of the military's role, the special need for discipline and

order in the service, the potential for difficulties arising out of possible close

confinement aboard ships or bases for long periods of time, and the possible

benefits to recruiting efforts, however, we conclude that at the present time the

regulation represents a reasonable effort to accommodate the needs of the

Government with the interests of the individual."). Other circuits have also

concluded that the military has at least a legitimate interest in excluding service

members who engage in homosexual conduct. See, e.g., Richenberg, 97 F.3d

at 262 ("Military leaders have determined that excluding those with a

propensity to engage in homosexual acts, like providing separate housing for

men and women, reduces sexual tensions that would jeopardize unit cohesion,

the cornerstone of an effective military."); Thomasson, 80 F.3d at 929;

Walmer v. United States Dep't of Defense, 52 F.3d 851, 854-55 (10th Cir.)

("[W]e ruled in Rich that a compelling governmental interest supported the

military policy requiring discharge of homosexuals."), cert. denied, --- U.S. ---

-, 116 S.Ct. 474, 133 L.Ed.2d 403 (1995); Woodward v. United States, 871

F.2d 1068, 1076-77 (Fed.Cir.1989); Dronenburg v. Zech, 741 F.2d 1388,

1398 (D.C.Cir.1984); Rich v. Secretary of Army, 735 F.2d 1220, 1228-29

(10th Cir.1984).

Because our own circuit precedent plus the authority from every other

circuit court that has addressed this issue establishes that the military has a

legitimate interest in discharging service members on account of homosexual

conduct in order to maintain effective armed forces, we must reject Watson's

and Holmes's argument that there is no legitimate government interest in

excluding homosexuals from military service on account of homosexual

conduct. As stated by the Fourth Circuit, "[a]ny argument that Congress was

misguided in [concluding that homosexual conduct would affect military

l4a

effectiveness] is one of legislative policy, not constitutional law." Thomasson,

80 F.3d at 929.

3. Rational Relation

Watson and Holmes next contend that it is not rational for the government

to presume from statements regarding homosexual orientation that they will

likely engage in homosexual conduct. Watson and Holmes argue that the

presumption of § 654(b)(2) and its implementing regulations lacks a rational

relationship to a legitimate state interest because it allows for discharge based

on homosexual status.

In Meinhold v. United States Dep't of Defense, 34 F.3d 1469 (9th

Cir.1994), we considered an equal protection challenge to the military's old

policy on homosexuals. Navy Petty Officer Meinhold was discharged after he

made the statement "I am in fact gay." In assessing Meinhold's constitutional

claims, we recognized the "serious question" raised by the military's apparent

policy of presuming that persons of homosexual orientation would violate

regulations: "Equating status or propensity with conduct or acts that are

prohibited is problematic as well. The Supreme Court has long recognized the

constitutional infirmity of penalizing status alone." Id. at 1478.

To avoid this constitutional difficulty, we interpreted the old policy regarding

homosexuals in the military narrowly, relying on the fact that the military's

policy did not appear to allow the discharge of a service member solely

because of a homosexual orientation. Accordingly, the holding we reached

was nafrow:

We therefore hold that the regulation under which Meinhold was

processed need not be construed so broadly as to raise constitutional

concerns. It can reasonably be construed to reach only statements that

show a concrete, fixed, or expressed desire to commit homosexual

acts despite their being prohibited. The Navy adopted its regulation to

Meinhold's statement of orientation alone and based his separation

solely on his classification as a homosexual. His statement-"I am in

fact gay” in the circumstances under which he made it manifests no

concrete, expressed desire to commit homosexual acts. The Navy's

presumption that Meinhold desires or intends to engage in prohibited

conduct on this basis of his statement alone therefore arbitrarily goes

beyond what [the military's] policy seeks to prevent. Accordingly,

Meinhold's discharge on that basis cannot stand. Id. at 1479-80.

[FN10]

15a

FN10. While we hesitated in Meinhold to hold that it would be proper to infer

homosexual conduct from a statement of homosexual orientation, the D.C.

Circuit subsequently adopted the view that such an inference was entirely

rational. See Steffan v. Perry, 41 F.3d 677, 688-90 (D.C.Cir.1994) (en banc)

("It is sufficient to recognize that the government's presumption, as embodied

in the Academy regulations, is certainly rational given that the human sexual

drive is enormously powerful and that an open declaration that one is a

homosexual is a rather reliable indication as to the direction of one’s drive.").

Because we face a direct challenge to the statement prong of the military's

new policy, we must now face the question we avoided in Meinhold: whether

the military's presumption from a service member's statement of

homosexuality that he or she will engage in homosexual conduct bears a

rational relationship to the military's interest in maintaining effective armed

forces. We are assisted in this regard by recent decisions from several other

circuit courts.

In Thomasson, the Navy discharged Lieutenant Thomasson after he

submitted a written statement indicating that he was gay and then failed to

rebut the presumption by presenting any specific evidence about whether he

engaged or intended to engage in homosexual acts. In holding that the

presumption contained in § 654(b)(2) is rationally related to a legitimate state

interest, the Fourth Circuit reasoned as follows:

We think, however, that the means chosen by Congress in the Act are

rationally related to legitimate legislative ends. The presumption that

declared homosexuals have a propensity or intent to engage in

homosexual acts certainly has a rational factual basis. In fact, the

presumption ... represents perhaps the most sensible inference raised by a

declaration of one's sexual orientation.... Although Thomasson argues

that some declared homosexuals have not engaged in and do not have a

propensity or intent to engage in homosexual acts, "courts are compelled

... to accept a legislature's generalizations even when there is an imperfect

fit between means and ends."

Id. at 930 (quoting Heller, 509 U.S. at 312, 113 S.Ct. at 2639) (citation

omitted).

Similarly, the Second and Eighth Circuits also recently decided that the

rebuttable presumption created by the statements prong is rationally related to

the military's interest in preventing homosexual conduct, respectively

reasoning that "the statements presumption of subsection (b)(2) substantially

furthers the government's [important] interest ... in preventing the occurrence

of homosexual acts in the military," Able, 88 F.3d at 1296; and that "it is

16a

rational to assume that both homosexuals and heterosexuals ‘are likely to act in

accordance with their sexual drives,’ " Richenberg, 97 F.3d at 262 (quoting

Steffan, 41 F.3d at 692).

We agree with the Second, Fourth, and Eighth Circuits on this issue.

Although the legislature's assumption that declared homosexuals will engage

in homosexual conduct is imperfect, it is sufficiently rational to survive

scrutiny under Heller. Moreover, even if Meinhold in fact did require a

discharge to be based on more than a mere statement, the discharges of

Watson and Holmes meet this standard. Their discharge orders were based

on their initial statements plus their failure to present any evidence at their

discharge hearings to rebut the presumption that a declaration of

homosexuality evidences a propensity to engage in prohibited homosexual

conduct. Thus, under the statements prong of the "don't ask/don't tell" policy,

service members are not discharged for having a homosexual "status." The

discharges result because of actual conduct or a propensity for conduct that is

prohibited. Watson's and Holmes's respective declarations of homosexual

orientation did not automatically lead to their discharge; rather, their

declaration was coupled with their tacit acceptance of the link between their

orientation and their conduct, as evidenced by their failure to show that they

did not engage in, attempt to engage in, have a propensity to engage in, or

intend to engage in homosexual acts. Although Watson presented a statement

contending that he did not commit homosexual acts on base, on duty, or with

other military personnel, neither Watson nor Holmes offered any evidence

regarding off base, off duty activity, even though military regulations still

reach the off base and off duty activities of military personnel. See 10 U.S.C.

§ 654(a)(10).

Watson argues that the rebuttable presumption procedure is meaningless

because homosexual service members would be able to rebut the presumption

only by denying their homosexual orientation. The district court record shows

that the government presented evidence that service members had successfully

rebutted the presumption in several cases. Although Watson persuasively

argues that some of these cases involve extraordinary circumstances (e.g., one

male service member stated at the hearing that he actually was confused about

his sexuality but vowed abstinence, while another male service member was

married to a woman at the time of the hearing), there were examples that were

less unusual.

For instance, one female Naval officer admitted to her homosexuality but

submitted a statement, in which she stated, inter alia, that she understands the

rules against homosexual conduct and intended to obey those rules. Another

female Naval officer stated that she was a lesbian but that the statement "in no

17a

way, was meant to imply [ ] any propensity or intent or desire to engage in

prohibited conduct." Unlike Watson and Holmes, these two officers clearly

stated that they would not engage in any homosexual conduct. Although the

record also describes another successful rebuttal where the male service

member was retained by the Air Force even though he apparently only

presented evidence of being well-liked, the fact that other service members

have successfully rebutted the presumption without denying their homosexual

orientation undermines Watson's argument.

Last, Watson's and Holmes's argument that the policy, as applied, treats

homosexual and heterosexual persons differently is also without merit. To the

extent that Watson's and Holmes's argument is based on the fact that there is

no presumption of prohibited conduct by heterosexuals, this difference is

explained by the fact that "[hJomosexuals and heterosexuals are ... differently

situated in that heterosexuals have a permissible outlet for their particular

sexual desires whereas homosexuals in the military do not." Steffan, 41 F.3d

at 692. Furthermore, the policy itself does not distinguish between persons of

homosexual and heterosexual orientation, providing that any person who

makes a statement of homosexual orientation is subject to the same rebuttable

presumption that arose against Watson and Holmes.

In sum, we find that the presumption is rationally related to the

government's interest of excluding persons from military service based on

homosexual conduct. Accordingly, Watson's and Holmes's discharges were

based on an inference of homosexual conduct and not on their homosexual

orientation.

B. Substantive Due Process Challenge

We have previously rejected claims similar to Watson's substantive due

process claim. See Schowengerdt v. United States, 944 F.2d 483, 490 (9th

Cir.1991) (stating that substantive due process claim with respect to the old

policy was foreclosed by Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841,

92 L.Ed.2d 140 (1986), Beller, and High Tech Gays ).

C. First Amendment Challenge

Watson and Holmes contend that § 654(b)(2) and the accompanying

directives violate the First Amendment because they target the expression of a

gay identity without sufficient justification. They specifically complain that §

654(b)(2), which is triggered by a "state[ment] that one is a homosexual or

bisexual, or words to that effect,” reaches constitutionally-protected speech,

and covers expressive behavior that is likewise protected by the First

Amendment.

18a

However, because Watson and Holmes were discharged for their conduct

and not for speech, the First Amendment is not implicated. See Thomasson,

80 F.3d at 931-34 (holding that the statement prong of the "don't ask/don't tell"

policy is not directed at speech and therefore does not violate the First

Amendment); see also Pruitt v. Cheney, 963 F.2d 1160, 1164 (9th Cir.1991)

(stating that Pruitt's discharge under the old policy following his admission of

homosexual orientation was not based on speech). Although Pruitt involved

the old policy, its reasoning--"Pruitt's admission, like most admissions, was

made in speech, but that does not mean that the [F]irst [A]mendment

precludes the use of the admission as evidence of the facts admitted"--applies

equally to the application of the "don't ask/don't tell" policy. Pruitt, 963 F.2d at

1164 (citing High Tech Gays, 895 F.2d at 578-80).

D. State Appellants’ Challenge

Because we find that the statement prong is constitutional, we need not reach

the reach the issue of whether the state of California may be held liable for the

alleged unconstitutional application of the "don't ask/don't tell" policy in

Holmes.

E. Attorney's Fees, Costs, and Expenses

We deny Watson's and Holmes's requests for attorney's fees, costs, and

expenses, pursuant to 28 U.S.C. § 2412, because they are not prevailing

parties.

III. CONCLUSION

For the foregoing reasons, we AFFIRM in Watson, REVERSE in

Holmes, and DENY Watson's and Holmes's requests for attorney's fees,

costs, and expenses.

DISSENTING OPINION

REINHARDT, Circuit Judge, dissenting.

I respectfully dissent. I believe that discharging a serviceman on the basis of

the statement "I am a homosexual,” "I am gay,” or "I am a lesbian"

impermissibly burdens rights guaranteed by the First Amendment. [FN1]

Accordingly, I would hold that 10 U.S.C. § 654(b)(2) and its implementing

regulations are unconstitutional. [FN2]

FN1. Hereafter, I use the term "homosexual" for purposes of simplicity,

although I recognize that "gay" and "lesbian" is the preferred terminology.

19a

DISSENTING OPINION

FN2. I use the term "policy" or "Don't Ask, Don't Tell policy” throughout to

refer individually and collectively to the applicable statute, of which §

654(b)(2) is a part, and the pertinent Department of Defense Regulations. See

10 U.S.C. § 654(a)-(f) (1994); Department of Defense Directive ("DoD

Dir.") 1332.30.

I recognize that we are bound by this court's recent decision that the military

may discharge service members who engage in homosexual conduct. See

Philips v. Perry, 106 F.3d 1420 (9th Cir.1997). Although I must follow that

decision here, I note that it is necessarily rooted in Bowers v. Hardwick, 478

U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), a decision that I have

previously described as similar in its bias and prejudice to Plessy v. Ferguson,

163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896). I remain confident that

someday a Supreme Court with a sense of fairness and an adequate vision of

the Constitution will repudiate Bowers in the same way that a wise and fair-

minded Court once repudiated Plessy. Indeed, I hope tha: day will not be long

in coming. [FN3] In my view of the Constitution, there is no more

justification for discrimination against individuals because of their sexual

orientation, which is most frequently a happenstance of birth, than there is

DISSENTING OPINION for discrimination against blacks, Hispanics or

Asians--or against Catholics, Jews, or Muslims, who at least have the option

to convert. ‘

FN3. The Court has imposed some restrictions on discrimination against

persons because of their sexual orientation, although thus far only under

highly limited circumstances. See Romer v. Evans, 517 U.S. 620, 116 S.Ct.

1620, 134 L.Ed.2d 855 (1996). It has never ruled on the issue of

homosexuals in the military, or indeed on any other question involving

homosexuals in government employment.

Nevertheless, the fact that conduct may be banned does not mean that

speech may be also. Certainly, an admission of prohibited conduct, althougii

speech, is an admission of an offense and may serve as the basis for

discipline. However, admitting that one is homosexual is not admitting to an

offense under the newly crafted and somewhat schizoid "Don't Ask, Don't

Tell" policy. For, under that policy, homosexual status--being a homosexual--

is not an offense. To the contrary, the military now purports to welcome into

the service individuals who are homosexuals--but only so long as they don't

engage in homosexual conduct. [FN4] This might appropriately be analogized

to welcoming Jews to be a part of society so long as they do not attend

synagogue or pray publicly or privately to G-d. Nevertheless, it is the

policy that the President and the Congress in their collective wisdom have

agreed upon.

FN4. The change in policy is evidenced by a change in the language of the

regulations. Although the military formerly insisted that "homosexuality is

incompatible with military service," it currently takes the position that "sexual

orientation is considered a personal and private matter." DoD Dir. 1332.30 at

2-1.

While I have previously explained why I believe the status/conduct distinction

to be irrational and without substance, Watkins v. United States Army, 837

F.2d 1428 (9th Cir.1988) (Reinhardt J., dissenting), the "Don't Ask, Don't

Tell" policy adopts the opposite view. [FN5] The proponents of the

status/conduct distinction seem to believe that classifications such as

homosexual and heterosexual are based on something other than sexual

conduct, perhaps one's taste in art, music, literature, dress, or the pursuit of a

particular, if indefinable, "life-style." This argument confuses cause and

effect. What makes a person a homosexual, or a heterosexual, is the abiding

desire to engage in sexual conduct with persons of the same sex, or persons of

the opposite sex. It is no secret, even to federal judges, that the sexual drive is

a strong one. Sex is the elementary form of human activity and expression,

and it provides the basis for the most important of human relationships,

rivaled only by that of parent and child. It also provides the basis for

distinguishing homosexuals from heterosexuals.

FN5. Some courts have agreed with the distinction, including the majority

opinion in Watkins v. United States Army, 837 F.2d 1428 (9th Cir.1988).

The complications regarding sexual preferences involve questions such as

whether one is born with a particular orientation or acquires it, and whether

one may constitutionally be forced to lead a sexless life in order to serve one's

country as a member of the military. [FN6] Most persons are born with a

particular sexual preference and in the vast majority of cases, it is heterosexual;

a minority is born with homosexual preferences. In some cases, it may not be

so clear what one's preferences are; in some cases there may be ambivalence;

in some a preference for both sexes; and in some a complete lack of interest

in sexual conduct. (The latter would appear to be the smallest group.) But the

idea that persons should be compelled to surrender entirely the right to engage

in sexual conduct if they wish to serve in the armed forces would seem to me

clearly to conflict with the Constitution and in particular with substantive due

process. Nevertheless, as I have acknowledged, that is not the current state of

the law and I am bound to follow a view contrary to my own, pending a

2la

repudiation of Bowers by the Court or its issuance of an opinion construing

Bowers to mean something other than what its authors intended.

FN6. See, Philips, supra.

In any event, the consequence of the military's artificial status/conduct

distinction is that homosexual status is acceptable and not a ground for

discharge. As the government says in its brief, under the new policy "sexual

orientation is considered a personal and private matter and is not by itself a

basis for discharge." (quoting DoD Directive 1132.30 at 2-1.) Only conduct is

prohibited, and we must take that distinction, however fallacious it may be, at

face value. That the regulation may draw irrational lines or establish arbitrary

and unrealistic distinctions is not the issue here. I must proceed on the

assumption that the prohibition against homosexual conduct is constitutional

under Perry, and that nevertheless the military welcomes with open arms

those persons of homosexual status. Accordingly, the question in this case is

simply whether an admission of homosexual status may serve as the basis

for discharge when the fact of that status does not.

It is evident to me that if homosexual status is not a bar to service, admitting to

that status--the statement that "I am a homosexual"--cannot itself be a cause

for discharge. There can be nothing wrong about admitting to a status that is

proper; yet what is being punished in the case before us is just that--the

admission of a permissible status. Clearly, therefore, it is not the status that is

being punished; it is the speech. Punishing speech that does no more than

acknowledge a permissible status violates the First Amendment. There is no

legitimate, let alone compelling, governmental interest in punishing a

serviceman's acknowledgment that he is a member of a group that is eligible

for military service. [FN7]

FN7. Pruitt v. Cheney, 963 F.2d 1160 (9th Cir.1991), is not to the contrary.

Under the old policy at issue in Pruitt, servicemen were subject to discharge

for being homosexual. "It was her homosexuality, and not her speech that

caused Pruitt to be discharged.... Pruitt admitted homosexuality and was

discharged for it." Id. at 1164. Under "Don't Ask, Don't Tell," homosexuality

itself is not a cause for discharge.

I recognize that the majority's view is similar to that of the Second, Fourth,

and Eighth Circuits. See Able v. United States, 88 F.3d 1280 (2d Cir.1996);

Thomasson v. Perry, 80 F.3d 915 (4th Cir.1996); Richenberg v. Perry, 97

F.3d 256 (8th Cir.1996). While this must give me pause, I am still required to

construe the Constitution as I understand it in light of binding Supreme Court

precedent. While under the First Amendment speech may be limited in some

circumstances, particularly in the military, see Greer v. Spock, 424 U.S. 828,

al : : |

22a

96 S.Ct. 1211, 47 L.Ed.2d 505 (1976), I find no legitimate interest that

overrides the interest in free speech in this case. See Reno v. ACLU, --- U.S.

----, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997). I will discuss the sole

justification offered by the government in the text infra at 1 1367-68.

In the end, the drafters of the regulation are trapped by their own dissembling

and by their desire to avoid facing a critical issue forthrightly. The

"compromise" they have arrived at necessarily leads to disingenuous and

arbitrary results. It will inevitably be enforced differently from base to base

and will result in unfair and discriminatory treatment of many valued long-

term members of the military service. Perhaps this is the nature of

compromise, at least during the course of some administrations, especially

where the military is involved. As the majority points out, the military is freer

to infringe on individual rights than are other parts of government.

Even that legal doctrine cannot, however, save a policy that is founded on an

erroneous and wholly unsupportable presumption. Moreover, it is difficult to

see how the military can benefit from a policy fraught with such patent

disingenuousness. "Don't Ask, Don't Tell" seems entirely inconsistent with

the proud traditions of our armed services, with the slogans such as Duty,

Honor, Country, the Honor Codes, and the teachings that those who are

wrongdoers or even know of wrongdoing are obligated to come forward and

make full disclosure.

Hypocrisy about sexual conduct will undoubtedly continue to plague the

military and disqualify some of its finest members from completing their

careers, until some fundamental policy changes are adopted, and its sexual

codes are made more realistic. From General Eisenhower on, up and down

the ranks, even to Commander-in-Chief, there are many who would have had

to forfeit their positions had the military's code of sexual conduct been strictly

and honestly enforced. Instead, it is applied selectively, and frequently only

when public whim or political pressures so dictate. The unfortunate few,

ranging from highly qualified female Air Force Lieutenants to would-be

Chiefs of Staff are the victims of a fickle public whose interest in the sexual

conduct of members of the military waxes and wanes as other more titillating

issues and events come to the forefront. However, those are matters for the

military and the other branches of government to decide, not the courts.

Hypocrisy and deception, if artfully practiced, do not offend the Constitution, )

at least not in most instances.

The government argues that "Don't Ask, Don't Tell" does not violate the free

speech clause of the First Amendment because the speech is strong evidence

of a "propensity to engage in homosexual acts" and that a "propensity"

23a

somehow qualifies as prohibited conduct. More to the point, the part of the

policy that regulates speech is based on a presumption that a declaration of

status establishes a propensity to engage in conduct--ergo, conduct. The

tenuous connection the government seeks to draw between speech and

propensity (and then between propensity and conduct) cannot withstand

scrutiny under the First Amendment. The difference between being a

homosexual and saying one is a homosexual is precisely that--one has said

what is a fact. The presumption that one who speaks truthfully is more likely

to engage in prohibited conduct than one who conceals or lies about his

homosexual status is plainly unsupportable. It is at least as likely that the

homosexual who has acknowledged his sexual orientation, and who knows

that everyone is aware of his preferences, will be willing to refrain from

conduct that would lead to his discharge as it is that a homosexual who has

successfully concealed his status, leads a covert and secretive life and hopes

not to be discovered, will refrain from "illicit" encounters. There is simply no

rational basis for the presumption that those who are honest have a greater

propensity to commit homosexual acts than those who prefer to hide their

sexual proclivities. The presumption is of course also flawed in its underlying

premise that homosexual orientation involves only an "abstract sexual

preference ... as distinct from a propensity." As I have stated earlier, there is

nothing abstract about the human sex drive. The thesis that being a

homosexual, or having a homosexual orientation, does not entail a propensity

or proclivity for a particular form of sexual activity, but that acknowledging

one's homosexual status does, is consistent with neither the facts of life nor the

plain meaning of the Englisl. janguage. While these artificial concepts of

"orientation," "preference," "abstract sexual preference,” "propensity,"

"proclivity" may be sufficient to support the policy's status/conduct distinction,

they are far too evanescent and subtle to serve as a basis for prohibiting or

punishing speech of substantive import.

The military's final argument is that there is a safety valve for those who

acknowledge their status. They are permitted to overcome the rebuttable

presumption that they have a propensity to engage in homosexual acts. There

are several reasons why I find this argument erroneous. I will mention three.

First, as I have stated, the presumption itself is invalid. Therefore, one may

not be required to rebut it. Second, the opportunity to rebut the presumption

is illusory in most cases. It is not only unreasonable to ask military personnel

to remain chaste throughout their careers, it is contrary to both human nature

and military tradition. In fact, from the earliest days of our military, R & R

has involved far more than listening to the Philharmonic, touring art galleries,

or watching the ballet. The military has actively facilitated a multitude of

opportunities for members of the armed forces to release their sexual tensions,

particularly, but hardly exclusively, when they are overseas. Third, the

evidence the military has submitted regarding individual efforts to rebut the

presumption raises serious doubts that the safety-valve serves any useful

purpose whatsoever, notwithstanding the fact that on rare occasions an isolated

service member has successfully availed himself of that procedure in order to

escape discharge.

There can be no doubt that the "Don't Ask, Don't Tell" policy severely

burdens speech. It unquestionably has the effect of chilling speech by

homosexual service members--speech that is of tremendous importance to the

individuals involved, speech that goes to their right to communicate the core of

their emotions and identity to others. Given the regulation's provisions that

permit homosexuals to serve in the armed forces, and that punish only

homosexual conduct, there is no reasonable basis for prohibiting a service

member from engaging in speech that serves only to declare his or her

homosexual status.

Lieutenants Holmes and Watson will be discharged not because they have

engaged in prohibited conduct and not because they are homosexual. Rather

the military seeks to exclude them because they spoke openly of their

homosexual status. The new "Don't Ask, Don't Tell" policy, while purporting

to allow homosexuals to serve in this country's armed forces,

unconstitutionally conditions their service on an abridgment of their free

speech rights under the First Amendment. For that reason, I would hold the

speech portion of "Don't Ask, Don't Tell" unconstitutional. [FN8]

FN8. The government does not argue that knowledge on the part of fellow

service members of an individual's homosexual status would be sufficient in

itself to warrant discharge in the absence of evidence of actual or threatened

conduct. Accordingly, I will not address the arguments that might be

advanced in support of such a contention other than to say that they would also

fail to pass constitutional muster.

APPENDIX B

NOT FOR PUBLICATION

_ UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

S 4. ee

APR - 6, 1998

Cathy A. Catterson, Clerk

U.S. COURT OF APPEALS

ANDREW HOLMES, First Lieutenant, No. 96-15726

Plaintiff-Appellee,

CALIFORNIA ARMY NATIONAL

GUARD; TANDY BOZEMAN, Major, in his

official capacity; PETE WILSON, Governor, in

his official capacity; U.S. ARMY NATIONAL

GUARD; UNITED STATES OF AMERICA;

WILLIAM J. PERRY, Secretary of Defense,

Defendants-Appellants.

ANDREW HOLMES, First Lieutenant, No. 96-15855

Plaintiff-Appellee,

CALIFORNIA ARMY NATIONAL

GUARD; TANDY BOZEMAN, Major, in his

official capacity; PETE WILSON, Governor, in

his official capacity;

Defendants-Appellants.

RICHARD P. WATSON, Lieutenant, No. 96-35314

Plaintiff-Appellant,

WILLIAM J. PERRY, Secretary of Defense;

John Dalton, Secretary of the Navy; UNITED

STATES OF AMERICA,

Defendants- Appellees ORDER

Before: REAVLEY,* REINHARDT, and WIGGINS, Circuit Judges.

* Hon. Thomas M. Reavley, Senior Unlted States Circuit Judge for the Fifth

Circuit, sitting by designation.

Judges Reavley and Wiggins voted to deny plaintiff appellant’s and

plaintiff appellees's joint petition for rehearing and Judge Reinhardt voted to

grant the petition for rehearing. Judge Wiggins recommends rejection of the

suggestion for rehearing en banc and Judge Reinhardt votes to accept the

suggestion for rehearing en banc.

The full court was advised of the suggestion for rehearing en banc. An

active judge requested a vote on whether to rehear the matter en banc. The

matter failed to receive a majority of the votes of the nonrecused active judges

in favor of en banc consideration. Fed. R. App. P. 35.

The petition for rehearing is denied and the suggestion for rehearing en

banc is rejected.

Holmes v. California Army Nat'l Guard; Holmes v. Cohen;

Watson v. Cohen --

Nos. 96-15726, 96-15855, 96-35314

PREGERSON, Circuit Judge, with whom Judges REINHARDT,

KOZINSKI, HAWKINS and TASHIMA join, dissenting from denial of

rehearing en banc.

I dissent from our failure to take en banc the opinion of a divided

panel that now stands as the opinion of our court.

It is clear to me that the "Don't Ask/Don't Tell" policy imposes

silence--not inaction--upon gay and lesbian service personnel: The words

"Don't Ask" and "Don't Tell" forbid speech, not conduct.

Moreover, this restriction on speech is content-based because it

penalizes gay and lesbian members of our armed forces for revealing one

basic aspect of their identities, any time or any place. See 10 U.S.C. §

654(a)(9-10) (1997). And this restriction on speech violates the First

Amendment because "[t]he point of the First Amendment is that majority

preferences must be expressed in some fashion other than [by] silencing

speech on the basis of its content." R.A.V.v. St. Paul, 505 U.S. 377, 392

(1992).

To make matters worse, the "Don't Ask/Don't Tell” policy imposes a

viewpoint restriction on speech. Unlike their gay and lesbian counterparts,

heterosexual military personnel may talk about their sexuality without

27a

a The Supreme Court has recognized that "[v]iewpoint discrimination

. an egregious form of content discrimination." Rosenberger v. Rector

sel inhai ata lias, of o, 515 U.S. 819, 829 (1995). Because the

government may not favor one speaker’ S$ views Over another's, even in private

speech, see Vv

Vincent, 466 U.S. 789, 804 (1984), the "Don'tAsk/Don't Tell” policy

presumptively offends the First Amendment When our military applies

invasive restrictions on the first amendment rights of our service personnel, it

must do so "objectively and evenhandedly." Greer v. Spock, 424 U.S. 823,

839 (1976). The "Don't Ask/Don't Tell” policy violates that principle.

From another perspective, as a practical matter the silence that this

policy imposes on gay and lesbian military personnel can lead others to

presume that they assent to a view about their own sexuality that they do not

espouse. The Supreme Court has invalidated laws that forced tacit speech on

other groups. See, e.q.,

Group of Boston, 515 U.S. 557, 574-76 (1995) (declining to force parade

organizers to propound a message about Irish sexual identity that they

rejected); Lee v, Weisman, 505 U.S. 577, 593 (1992) (striking down religious

invocation at school because "in our culture . . . remaining silent can signify

adherence to a view"); Wooley v. Maynard, 430 U.S. 705, 715 (1977)

(enjoining New Hampshire from compelling Jehovah's Witnesses to display

the motto "Live Free or Die" on their license plates).

A person who has taken an oath to protect and defend the Constitution

of the United States should not be denied that privilege simply because that

person wishes to make a statement about his or her innermost seif. It seems to

me that such speech, which is truthful and neither harms nor endangers

anyone, is shielded by the First Amendment.

APPENDIX C

(918 F.Supp. 1403)

Lieutenant Richard P. WATSON, Plaintiff,

William J. PERRY, Secretary of Defense, et al., Defendants.

No. C95-1141Z.

United States District Court,

W.D. Washington.

March 7, 1996.

BACKGROUND

Plaintiff Richard Watson is currently a lieutenant in the United States

Navy. Lt. Watson enlisted in the Navy in July 1981. A year later, the Navy

selected Lt. Watson to participate in the Enlisted Commissioning Program,

under which highly qualified enlisted personnel may achieve officer status.

Under this program, Lt. Watson attended the University of New Mexico,

obtaining a Bachelor of Science degree in mathematics in August 1986. After

completing Officer Candidate School, Naval Nuclear Power School, and the

Submarine Officer Basic Course, Lt. Watson served aboard the U.S.S. Henry

M. Jackson from September 1988 until September 1992. During this period,

Lt. Watson received many honors including a Letter of Commendation from

the Commanding Officer of the U.S.S. Henry M. Jackson, the National

Defense Service Medal for Service on Active Duty, the Navy Achievement

Medal for "Professional Achievement in the Superior Performance of His

Duties,” and a Gold Star in lieu of a second Navy Achievement Medal.

From September 1992 until March 1995, Lt. Watson served as an

Assistant Professor of Naval Science in the Naval Reserve Officers Training

Corps (NROTC) at Oregon State University. During this period, Lt. Watson

sought to obtain a Masters Degree in Business Administration, which he

viewed as necessary for continued promotion and advancement in the Navy.

On October 28, 1994, Lt. Watson delivered to his Commanding Officer a

one-page document titled "Submission of Sexual Orientation Statement."

Paragraph 2 reads: "I have a homosexual orientation. I do not intend to rebut

the presumption.” Lt. Watson explains in his declaration that he submitted the

statement (1) because of his commitment to honesty, truthfulness, and

integrity, and (2) to eliminate any potential for a blackmail threat in the event

he received a vessel command assignment. Based on this letter, the Navy

issued a show cause order requiring Watson to show cause before a Board of

Inquiry why he should be retained in the Naval Service.

On March 1, 1995, a Navy Board of Inquiry was convened. Although the

Board reminded Watson that to avoid discharge he would have to rebut the

presumption that he engages in or intends to engage in homosexual acts,

Watson presented no such evidence. Instead, he recounted his many

accomplishments during fourteen years of military service and emphasized his

commitment to the Navy and its core values. Watson's counsel argued to the

Board that Watson's statement, "I do not intend to rebut the presumption” was

made without the assistance of counsel and without full understanding of

"what a presumption is." The Board concluded that although they had no

doubt that Watson was "an outstanding performer,” he failed to offer any

evidence to rebut the presumption. As a result, the Board voted 3 to 0 to

recommend the honorable discharge of Lt. Watson "by reason of homosexual

conduct.”

On March 28, 1995, Lt. Watson's civilian counsel submitted a letter of

deficiency for consideration by the Commander of Naval Base Seattle and the

Board of Review in their review of the Board of Inquiry's recommendation.

The letter included the following statement by Lt. Watson:

a. l expressly deny that I have engaged in any homosexual conduct with

any military student or service member.

b. lexpressly deny that I engaged in any homosexual conduct during the

performance of military duty, or while on any military installation.

c. lexpressly deny that I have any intent or propensity to engage in any

conduct described above.

In April 1995, the Commander of Naval Base Seattle issued a report in

which he approved and concurred in the Board of Inquiry's findings, and

recommended to the Chief of Naval Personnel that Watson be separated from

service. The Commander concluded that Watson's letter of deficiency failed to

rebut the presumption and was, in fact, "persuasive as much for what it does

not deny as for what it does." The "Don't Ask, Don't Tell" policy "appl[ies] to

a member of the armed forces at all times that the member has a military

status, whether the member is on base or off base, and whether the member is

on duty or off duty." 10 U.S.C. § 654(a)(10). Thus, homosexual conduct that

requires separation from service is not limited to the circumstances addressed

30a

in Watson's letter of deficiency, namely off duty, off base conduct with non-

military personnel. Because Watson was silent as to his intent or propensity

to engage in homosexual conduct under circumstances other than described in

his statement, the Commander concluded that his statement supported, rather

than rebutted, the presumption.

The Commander also rejected Watson's argument, made to the Board of

Inquiry, that his initial statement, "I do not intend to rebut the presumption"

was made "without any counseling from lawyers," and therefore should be

construed only as a statement that he did not want an embarrassing inquiry

into his private life. The Commander concluded that Watson's legal ignorance

was substantially contradicted by his statement that he sent copies of his

declaration to various officials and interest groups on the advice of his lawyer.

On May 2, 1995, the Board of Review voted unanimously to recommend

Watson's separation from service with an honorable discharge. In June 1995,

the Navy sent Lt. Watson a Notice of Discharge and an amended Notice of

Discharge. The amended Notice of Discharge informed Lt. Watson that he

would receive 50% of the standard separation pay.

On July 25, 1995, Lt. Watson initiated this action against Secretary of

Defense William J. Perry, Secretary of the Navy John E. Dalton, and the

United States. In this action, Lt. Watson challenges the constitutionality of the

Policy Concerning Homosexuality in the Armed Forces (colloquially known

as the "Don't Ask, Don't Tell" policy), 10 U.S.C. § 654, and the Department

of Defense regulations promulgated thereunder. The statute provides in

relevant part as follows:

(b) Policy.--A member of the armed forces shall be separated from the

armed forces under regulations prescribed by the Secretary of Defense if

one or more of the following findings is made and approved ...

(2) That the member has stated that he or she is a homosexual or

bisexual, or words to that effect, unless there is a further finding ... that the

member has demonstrated that he or she is not a person who engages in,

attempts to engage in, has a propensity to engage in, or intends to engage

in homosexual acts.

(f) Definitions.--In this section:

(1) The term "homosexual" means a person, regardless of sex, who

engages in, attempts to engage in, has a propensity to engage in, or intends

to engage in homosexual acts, and includes the terms "gay" and “lesbian”.

10 U.S.C. § 654.

Department of Defense Directive 1332.30 further defines a "statement that a

member is a homosexual or bisexual or words to that effect" as [I]Janguage or

behavior that a reasonable person would believe was intended to convey the

statement that a person engages in, attempts to engage in, or has a propensity

or intent to engage in homosexual acts.

Definitions 18, Department of Defense (DOD) Directive. The Directive also

defines "sexual orientation" as "[a]n abstract sexual preference for persons of a

particular sex, as distinct from a propensity or intent to engage in sexual acts."

Id. J 16. The Directive states that "[a] member's sexual orientation is

considered a personal and private matter, and is not a bar to continued service

... unless manifested by homosexual conduct in the manner described in

section C.1." Reasons for Separation § C, at p. 2-1. Section C.1.b. repeats the

language of 10 U.S.C. § 654(b)(2), and further provides:

A statement by an officer that he or she is a homosexual or bisexual, or words

to that effect, creates a rebuttable presumption that the officer engages in,

attempts to engage in, has a propensity to engage in, or intends to engage in

homosexual acts.... In determining whether an officer has successfully

rebutted the presumption ..., some or all of the following may be considered:

(1) Whether the officer has engaged in homosexual acts;

(2) The officer's credibility;

(3) Testimony from others about the officer's past conduct, character, and

credibility;

(4) The nature and circumstances of the officer's statement;

(5) Any other evidence relevant to whether the officer is likely to engage

in homosexual acts.

DOD Directive, Reasons for Separation, § C.1.b., at p. 2-2.

Lt. Watson challenges the "Don't Ask, Don't Tell" policy on First (Free

Speech) and Fifth (Equal Protection and Due Process) Amendment grounds,

and brings a claim under the Administrative Procedure Act (APA) challenging

the Navy's refusal to provide him with full separation pay. With his

complaint, Lt. Watson filed a motion for a temporary restraining order and a

preliminary injunction, docket no. 2. On August 8, 1995, after hearing oral

argument, the Court issued a preliminary injunction enjoining the Navy from

discharging Watson or taking any adverse action against him pending the

outcome of this litigation.

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The parties now move for summary judgment. Lt. Watson claims that

the “Don't Ask, Don't Tell" policy violates the due process and equal

protection clauses of Fifth Amendment because it is based solely on prejudice

against homosexuals and discriminates, without any rational justification,

against homosexual servicemembers on the basis of status alone. Watson

argues further that the "Don't Ask, Don't Tell" policy is aimed at suppressing

protected speech and therefore cannot withstand First Amendment scrutiny.

The Government counters that it is constitutionally permissible for the

armed forces to prohibit homosexual conduct, which is the aim of the "Don't

Ask, Don't Tell" policy. The Government emphasizes that the policy is

"conduct based," excluding only those servicemembers who engage in

homosexual conduct or who make statements demonstrating that they have

engaged or are likely to engage in homosexual conduct. As to plaintiff's First

Amendment argument, the Government contends that servicemembers who

are discharged based on their declarations of homosexuality are not being

punished for their speech; rather, the Government is using the statement as

evidence of prohibited homosexual conduct.

DISCUSSION

I. Summary Judgment Standard

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary

judgment "shall be rendered forthwith if the pleadings, depositions, answers to

interrogatories and admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material fact and that the moving

party is entitled to judgment as a matter of law." Here, there are no material

issues of fact in dispute. The parties disagree only on the application of the

law to these facts. As a result, this case is ripe for summary adjudication.

Il. Deference to the Military

As this Court recognized in Cammermeyer v. Aspin, 850 F.Supp. 910,

915-916 (W.D.Wash.1994), courts reviewing constitutional challenges to

military actions must be mindful of the special level of deference accorded

military decisions. While there is no "military exception" to the Constitution,

"[rjegulations which might infringe constitutional rights in other contexts may

survive scrutiny because of military necessities." Beller v. Middendorf, 632

F.2d 788, 811 (9th Cir.1980), cert. denied, 452 U.S. 905, 101 S.Ct. 3030, 69

L.Ed.2d 405 (1981).

The Constitution confers broad powers on the President and Congress to

raise and support armies, provide and maintain a naval force, and promulgate

33a

rules governing and regulating both land and naval forces. Traditionally,

courts have recognized the Constitution's mandate by according significant

deference to the "considered professional judgment" of military officials

regarding the composition of the armed forces. Goldman v. Weinberger, 475

U.S. 503, 508, 106 S.Ct. 1310, 1313, 89 L.Ed.2d 478 (1986). "While it is

clear that one does not surrender his or her constitutional rights upon entering

the military, the Supreme Court has repeatedly held that constitutional rights

must be viewed in light of the special circumstances and needs of the armed

forces." Beller, 632 F.2d at 810. As the Supreme Court has reflected:

"{It] is difficult to conceive of an area of governmental activity in which

the courts have less competence. The complex, subtle, and professional

decisions as to the composition, training, equipping, and control of 9

military force are essentially professional military judgments, subject

always to civilian control of the Legislative and Executive Branches."

Rostker v. Goldberg, 453 U.S. 57, 65-66, 101 S.Ct. 2646, 2652, 69

L.Ed.2d 478, 487 (1981) (quoting Gilligan v. Morgan, 413 U.S. 1, 10, 93

S.Ct. 2440, 2446, 37 L.Ed.2d 407 (1973)).

The plaintiff has argued forcefully and persuasively that gay and lesbian

servicemembers have served honorably in the military for years; that gay and

lesbian servicemembers are currently serving with distinction, without

disrupting order and good discipline; that one's sexuality is a personal and

private matter; and that prejudice is at the heart of the military's policy

concerning gays and lesbians in the military. The Court has no doubt that

many gays and lesbians have served and continue to serve this country

honorably, without impeding the goals of the military, and that many other

servicemembers would like to see homosexuals ousted merely because of

their sexual preference. This Court is not permitted, however, to substitute its

own judgment for that of Congress and the military or to question the wisdom

of the military's policy. The policy must be upheld so long as it is

constitutional. It is also not within this Court's power to revisit legal issues

conclusively resolved by the Supreme Court in-Bowers v. Hardwick, 478

U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986). [FN1] See also Meinhold

v. U.S. Dept. of Defense, 34 F.3d 1469, 1477 (9th Cir.1994). As a result, the

Court must reject the argument that homosexual conduct cannot be proscribed

by the military. Consistent with the principles of deference to the military and

binding precedent, the Court's task is limited to determining whether the policy

unconstitutionally infringes on Lt. Watson's constitutional rights as considered

in the context of the military. [FN2]

FN1. Hardwick involved a due process challenge to a Georgia statute

which made sodomy a crime. Hardwick challenged the statute after being

34a

discovered engaging in sodomy with another consenting adult in the privacy

of his own home. The Supreme Court held that the Constitution confers no

fundamental right upon homosexuals to engage in sodomy.

FN2. The "Don't Ask, Don't Tell" policy has been challenged on

constitutional grounds in several cases. The policy has been upheld as applied

in Richenberg v. Perry, 909 F.Supp. 1303 (D.Neb.1995) (Captain in the Air

Force was discharged for stating he is a homosexual); Philips v. Perry, 883

F.Supp. 539 (W.D.Wash.1995) (Petty Officer was discharged for stating he

engaged in homosexual acts and was a homosexual); and Selland v. Perry,

905 F.Supp. 260 (D.Md.1995) (Lieutenant in the Navy was discharged for

making statement that he was homosexual and involved in a monogamous

relationship). Only one court has held that the policy is facially invalid on

equal protection, due process, and First Amendment grounds. See Able v.

United States, 880 F.Supp. 968 (E.D.N. Y.1995) (six members of the Armed

Services made statements of iiomosexual orientation). Several of these cases

are currently on appeal.

III. Must Lt. Watson Exhaus: His Administrative Remedies?

The defendant argues that this Court should require Watson to exhaust

intramilitary remedies before adjudicating his constitutional claims. In

Meinhold, the Ninth Circuit rejected a similar argument by the Government,

noting that appeal to the Board for the Correction of Naval Records (BCNR)

would have been futile. The Court concluded that because the Navy's position

was that the Board had to recommend separation if it found Meinhold to be

homosexual, and that a servicemember is homosexual if he makes a statement

that he is, there would be no grounds on which the BCNR could reach a

different disposition than the Board. The same reasoning applies here.

Because Watson failed to submit any evidence to rebut the presumption, there

would be no basis for the BCNR to reach a contrary result. As a result, the

Court concludes that exhaustion is not required because further administrative

proceedings would be futile.

The Court also concludes that constitutional review is not precluded by the

Administrative Procedure Act ("APA"). In Darby v. Cisneros, 509 U.S. 137,

137, 113 S.Ct. 2539, 2540, 125 L.Ed.2d 113, 127 (1993), the Supreme Court

held that “where the APA applies, an appeal to 'superior agency authority’ is a

prerequisite to judicial review only when expressly required by statute or when

an agency rule requires appeal before review and the administrative action is

made inoperative pending that review." (Emphasis in original). Because

appeal to the Board for the Correction of Naval Records is discretionary, not

35a

mandatory, Watson is not precluded from bringing claims under the APA.

See 10 U.S.C. § 1552.

FN3. Lt. Watson clarified in his briefs that his sole claim under the APA

relates to the Navy's failure to award him full separation pay, which becomes

an actual controversy only if he is eventually discharged. Plaintiff is not

bringing a claim under the APA based on the Navy's actions in discharging

him because he does not believe the Navy exceeded or acted contrary to

statutory authority. Watson contends that the Navy acted in conformity with,

rather than against, the policy and regulations at issue here. Because it is the

policy and regulations themselves which are allegedly unconstitutional,

plaintiff contends he has no APA claim based on the agency's adherence to

that policy; instead, "the only route towards plaintiff's objective, i.e., to remain

in the Navy, is consideration of his constitutional claims." Plaintiff's Brief in

Support of Summary Judgment at 19.

IV. Equal Protection Challenge

A. Standard

"The Equal Protection Clause of the Fourteenth Amendment comman¢s

that no State shall ‘deny to any person within its jurisdiction the equal

protection of the laws,’ which is essentially a direction that all persons

similarly situated should be treated alike." City of Cieburme v. Cleburne

Living Center, Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 3254, 87 L.Ed.2d

313, 320 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382,

2394, 72 L.Ed.2d 786 (1982)). While the Fifth Amendment does not contain

an equal protection clause, the due process clause of the Fifth Amendment has

an equal protection component that applies to the federal government. Bolling

v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954).

The Ninth Circuit has held that homosexuals are not a suspect or quasi-

Suspect class for equal protection purposes; therefore, judicial review of a

classification based on homosexuality is limited to the rational basis test. High

Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 571 (9th

Cir.1990). Under this standard, a discriminatory classification is presumed

valid and will be sustained "if there is a rational relationship between the

disparity of treatment and some legitimate governmental purpose." Heller v.

Doe, 509 U.S. 312, 312, 113 S.Ct. 2637, 2638-39, 125 L.Ed.2d 257, 270

(1993).

Rational basis review is a two-step process. Jackson Water Works, Inc.

v. Public Utilities Comm'n, 793 F.2d 1090, 1094 (9th Cir.1986), cert. denied,

479 U.S. 1102, 107 S.Ct. 1334, 94 L.Ed.2d 184 (1987). Initially, the court

36a

must determine whether the challenged classification serves a legitimate

governmental purpose. If the court answers this question in the affirmative,

the court must then determine whether the discriminatory classification is

rationally related to the achievement of that legitimate purpose. A

discriminatory classification that is based on prejudice or bias is not rational as

a matter of law. See Palmore v. Sidoti, 466 U.S. 429, 433- 34, 104 S.Ct.

1879, 1882-83, 80 L.Ed.2d 421, 426 (1984) (mother could not be denied

custody of her child based on social disapproval of her interracial marriage);

Cleburne, 473 U.S. at 448, 105 S.Ct. at 3259, 87 L.Ed.2d at 326 (city could

not require a special use permit for group home for the mentally retarded

where the requirement was based on prejudice).

Plaintiff does not dispute that the government has a legitimate interest in

maintaining the readiness and combat effectiveness of its military forces.

Thus, the first part of the test is satisfied. The parties disagree, however, as to

the second part of the test--whether the classification is rationally related to that

purpose.

B. Is the Policy Unconstitutional on its Face?

In Meinhold, 34 F.3d at 1478, the Ninth Circuit, in. addressing the equal

protection implications of the military's former policy concerning

homosexuals in the armed forces, recognized that equating status with conduct

or acts that are prohibited is "problematic," and questioned whether it could

ever be "rational to presume that one class of persons (identified by their

sexual preference alone) will violate regulations whereas another class

(identified by their preference) will not." The court avoided reaching the

constitutional question, however, because it construed the former policy as

permitting discharge from service only where the servicemember makes

“statements that show a concrete, fixed, or express desire to commit

homosexual acts." Id. at 1479. The court found that Meinhold's statement, "I

am in fact gay," manifested no concrete, expressed desire to commit

homosexual acts, and therefore his discharge on the basis of that statement

alone could not stand.

Lt. Watson contends that the military's new "Don't Ask, Don't Tell"

policy, codified at 10 U.S.C. § 654, suffers from the constitutional infirmities

recognized in Meinhold, in that it presumes, without any rational basis, that

servicemembers who merely state their homosexual orientation will engage in

prohibited conduct. Watson notes that no such presumption attaches to

statements of servicemembers who declare their heterosexual orientation.

Although the presumption of homosexual conduct is rebuttable, plaintiff

contends that it is virtually impossible for servicemembers to rebut that

a eee ee Net ECAR ME IES PARAL

37a

presumption without explicitly retracting their statements and repudiating their

own sexual identity.

Watson argues that because the express language of the statute offends

Meinhold, the new policy is unconstitutional on its face and must be struck

down. Plaintiff's claims of facial invalidity are based on § 654(b)(2) of the

policy, which provides for separation from service where:

the member has stated that he or she is a homosexual or bisexual, or

words to that effect, unless there is a further finding, made and approved

in accordance with procedures set forth in the regulations, that the member

has demonstrated that he or she is not a person who engages in, attempts

to engage in, has a propensity to engage in, or intends to engage in

homosexual acts.

Plaintiff contends that this language permits discharge based solely on

statements of sexual orientation, which is constitutionally suspect under

Meinhold, 34 F.3d at 1478, and no other redeeming construction of the policy

is possible.

Courts are obligated to consider nonconstitutional claims and avenues for

relief prior to considering constitutional claims. Jean v. Nelson, 472 U.S. 846,

854, 105 S.Ct. 2992, 2996-97, 86 L.Ed.2d 664 (1985). In addition, with

limited exceptions, facial challenges to statutes must be rejected unless there

exists no set of circumstances in which the statute can constitutionally be

applied. [FN4] United States v. Salerno, 481 U.S. 739, 745, 107 S Ct. 2095,

2100, 95 L.Ed.2d 697 (1987). "Embedded in the traditional rules governing

constitutional adjudication is the principle that a person to whom a statute may

constitutionally be applied will not be heard to challenge that statute on the

ground that it may conceivably be applied unconstitutionally to others, in other

Situations not before the Court." Broadrick v. Oklahoma, 413 U.S. 601, 610,

93 S.Ct. 2908, 2915, 37 L.Ed.2d 830 (1973). A corollary rule is that

constitutional rights are personal and may not be asserted vicariously. These

principles reflect "the conviction that under our constitutional system courts

are not roving commissions assigned to pass judgment on the validity of the

Nation's laws." Id., 413 U.S. at 610-611, 93 S.Ct. at 2915. In accordance with

these principles, this Court must consider whether there is some construction

of the statute embodying the "Don't Ask, Don't Tell" policy that is

constitutional. Meinhold, 34 F.3d at 1476-79.

FN4. The Supreme Court described these limited exceptions in Broadrick

v. Oklahoma, 413 U.S. 601, 611-612, 93 S.Ct. 2908, 2915-16, 37 L.Ed.2d

830 (1973). One exception is a facial challenge based on First Amendment

free- speech grounds. The Supreme Court has applied to statutes restricting

—_" pa

38a

speech the "overbreadth doctrine," which renders a statute invalid in all its

applications if it is invalid in any of them. Lt. Watson's challenge to the statute

on First Amendment grounds is addressed separately.

Under the statute, a servicemember's statement "that he or she is a

homosexual or bisexual, or words to that effect," triggers a presumption that

he or she engages in or has the intent or propensity to engage in prohibited

homosexual conduct. The words "homosexual" and "bisexual," however, are

defined terms. "Homosexual" is defined as "a person, regardless of sex, who

engages in, attempts to engage in, has a propensity to engage in, or intends to

engage in homosexual acts, and inciudes the terms 'gay' and ‘lesbian’." 10

U.S.C. § 654(f)(1). "Bisexual" is defined as "a person who engages in,

attempts to engage in, has a propensity to engage in, or intends to engage in

homosexual and heterosexual acts." 10 U.S.C. § 654(f)(2). As evident from

their definitiors. the words "homosexual" and "bisexual" as used in the statute

connote homosexual conduct or a propensity to engage in proscribed

homosexual conduct.

The DOD Directive similarly requires that the servicemember's statement

concerning homosexuality be tied to prohibited conduct or an intent to engage

in such conduct. The DOD Directive provides that a servicemember's

statement that he or she "is a homosexual or bisexual, or words to that effect,"

means "[I]anguage or behavior that a reasonable person would believe was

intended to convey the statement that a person engages in, attempts to engage

in, or has a propensity or intent to engage in homosexual acts." DOD

Directive at 1-2. Thus, under the Directive a statement cannot trigger

discharge unless it demonstrates an intent or propensity to engage in

prohibited homosexual conduct.

The statute and regulations also distinguish identifying oneself as

"homosexual or bisexual, or words to that effect" from statements of

“homosexual orientation." “Homosexual orientation" is defined in the DOD

Directive as "[a]n abstract sexual preference for persons of a particular sex, as

distinct from a propensity or intent to engage in sexual acts." Given these

definitions, the statute and regulations can be reasonably construed as zeaching

only statements manifesting "a concrete, expressed desire to commit

homosexual acts," Meinhold, 34 F.3d at 1479, not statements of homosexual

orientation or status alone.

Plaintiff reads the statute as explicitly providing that the mere statement,

"I am homosexual” or "I am gay" triggers discharge, which would be

constitutionally impermissible under Meinhold. While this is one possible

construction of the statute, it ignores the definitional sections and regulations,

ee: Ee Le

39a

which make actionable only statements, language or acts demonstrating an

intent Or propensity to engage in prohibited homosexual conduct. Given the

definitions in the statute and regulations, § 654(b)(2)' s reference to statements

that "he or she is homosexual or bisexual" can refer only to statements

manifesting an intent or propensity to engage in prohibited conduct. Under

this construction, the presumption would not arise from mere statements of

orientation, such as "I have a homosexual orientation." Thus, the statute may

be construed in a constitutional manner and is facially valid.

To the extent the Government has initiated discharge proceedings on the

basis of more problematic statements such as "I am homosexual," the proper

challenge is on an as-applied, rather than a facial, basis.

FNS. Whether it would be constitutionally proper in a particular case to

initiate discharge proceedings based on such a statement would depend on

whether the speaker is acknowledging that he or she is "homosexual" as that

term is defined by the statute or rather merely expressing his or her

orientation. A reasonable constitutional construction of the statute would not

permit the presumption to be created by the statement, "I am homosexual"

alone unless it was clear that the speaker was defining himself or herself in

accordance with the statutory definition or otherwise manifesting an intent to

engage in homosexual acts. The Court need not reach that issue here because

Watson's as-applied challenge is limited to his own statements.

The question still remains whether the statute was constitutionally applied

to Lt. Watson. The Ninth Circuit has held that the military may

constitutionally discharge members for homosexual conduct, as distinguished

from mere status or orientation:

On the merits, we defer to the Navy's judgment that the presence of

persons

who engage in homosexual conduct, or who demonstrate a propensity to

engage in homosexual conduct by their statements, impairs the

accomplishment of the military mission.

Meinhold, 34 F.3d at 1472 (emphasis added). The Meinhold court held

that a service person's statements would justify discharge if such statements

showed a concrete, expressed desire or intent to commit homosexual acts. Id.

Because homosexual conduct may constitutionally be prohibited,

administrative discharges based on propensity or intent to engage in

homosexual acts, as evidenced by the servicemembers’ statements, do not

violate equal protection. Id.; see also Philips v. Perry, 883 F.Supp. 539, 545-

46 (W.D.Wash.1995).

40a

In arguing that his discharge was unconstitutional, plaintiff focuses on his

initial statement that he has a "homosexual orientation," and argues that under

Meinhold that statement alone cannot constitutionally create a presumption of

homosexual conduct. That is true. However, Watson's statement was not

limited to a declaration of his homosexual orientation. Plaintiff's complete

statement was "I have a homosexual orientation. I do not intend to rebut the

presumption.” While the first sentence cannot under the statute or regulations,

as constitutionally construed, be sufficient to raise the presumption, the second

sentence could reasonably be interpreted by the Navy as a statement regarding

conduct. Watson's statement that he does not intend to "rebut the

presumption” can only refer to the presumption in the statute that "the officer

engages in, attempts to engage in, has a propensity to engage in, or intends to

engage in homosexual acts." Thus, the Navy could reasonably interpret

Watson's statement that he would not rebut the presumption as a statement

that the presumption is properly applied to him.

Watson argues that the second sentence of his statement should be given

no effect because, among other reasons, it could also be reasonably interpreted

as a statement that he did not want his private life scrutinized and therefore

would refuse to discuss any personal sexual matters. Watson is correct that

his statement is susceptible to that interpretation. However, the appropriate

question is whether it was reasonable and rational for the Navy to interpret the

statement otherwise. The Court concludes that it was.

Watson also argues that because he merely acknowledged his homosexual

“orientation,” and it is unconstitutional to attach a presumption of conduct to

such a statement, Watson's statement that he would not rebut the presumption

is ineffective. Watson's use of the term "orientation" cannot shield him,

however, from the effects of making further statements he was not compelled

to make. Watson's statement that he would not rebut the presumption could

reasonably be understood as a statement that the presumption was properly

applied to him. This additional comment puts him on a different footing than

if he had limited his statement to orientation alone.

Even if Watson's first statement was read as a mere acknowledgment of

orientation, which could not under Meinhold constitutionally trigger the

presumption of conduct, his later statement to the Board of Review in which

he denied having engaged in any homosexual conduct with any military

student or servicemember, and denied engaging in any homosexual conduct

during the performance of military duty or while on any military installation,

was sufficient to create a presumption that he has engaged in or has an intent

to engage in homosexual conduct with non-servicemembers while off base

4la

and off duty. Such conduct may be constitutionally prohibited, is expressly

proscribed by the regulations, and provides sufficient grounds for separation.

It is well recognized that adverse inferences may properly be drawn from

silence by parties in civil cases. Baxter v. Palmigiano, 425 U.S. 308, 319, 96

S.Ct. 1551, 1558, 47 L.Ed.2d 810 (1976) ("[fJailure to contest an assertion ...

is considered evidence of acquiescence ... if it would have been natural under

the circumstances to object to the assertion in question"). The case most

frequently cited for this principle is United States ex rel. Bilokumsky v. Tod,

263 U.S. 149, 153-54, 44 S.Ct. 54, 55-56, 68 L.Ed. 221, 224 (1923), an

immigration case, in which Justice Brandeis stated, "Conduct which forms a

basis for inference is evidence. Silence is often evidence of the most

persuasive character." The Court went on to state:

Conduct is often capable of several interpretations, and caution should be

exercised in drawing inferences from it. But there is no rule of law which

prohibits officers charged with the administration of the immigration law

from drawing an inference from the silence of one who is called upon to

speak. Deportation proceedings are civil in their nature. Id.; accord,

I.N.S. v. Lopez-Mendoza, 468 U.S. 1032, 1043-44, 104 S.Ct. 3479,

3485-86, 82 L.Ed.2d 778, 789 (1984). The plaintiff contends that

Bilokumsky is inapplicable here because it is an immigration case, but the

principle has been applied in other civil contexts. See, e.g., Daniels v.

Pipefitters' Assn. Local Union No. 597, 983 F.2d 800, 802 (7th Cir.1993)

(an adverse inference could have been drawn from the invocation of the

Fifth Amendment in a civil case involving racial discrimination);

Cumpiano v. Banco Santander Puerto Rico, 902-F.2d 148, 158 (Ist

Cir.1990) (human resource manager's refusal to give employee any

reason for termination, other than stating he did not wish

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