Petition for Writ of Certiorari — Richenberg v. Cohen

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{ FILED

961648 APR 16 1997

NO. _occtee—OF THE CLERK

In The

Supreme Court of the United States

October Term, 1996

RICHARD F. RICHENBERG, JR.,

Petitioner,

WILLIAM J. PERRY, SECRETARY OF DEFENSE,

AND SHEILA WIDNALL, SECRETARY

OF THE DEPARTMENT OF THE AIR FORCE,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Eighth Circuit

PETITION FOR A WRIT OF CERTIORARI

; ¢

THomas C. Kayser

Counsel of Record

RANDALL TIETJEN

Rosins, KAPLAN, MILLER &

Cirest L.L.P.

2800 LaSalle Plaza

800 LaSalle Avenue

Minneapolis, Minnesota 55402

(612) 349-8500

Attorneys for Petitioner

April 15, 1997

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

Al Xs

QUESTIONS PRESENTED FOR REVIEW

1. On its face or as applied, does the federal govern-

ment’s “Don’t Ask, Don’t Tell” policy on military service

by homosexuals — which expressly allows homosexuals to

serve in the military but subjects them to discharge if

they tell anyone that they are homosexual - constitute an

impermissibly overbroad and content-based restriction

on speech in violation of the First Amendment?

2. On its face or as applied, does the “Don’t Ask,

Don’t Tell” policy — which purports to further the mili-

tary’s interest of “unit cohesion” by discharging service

members who state that they are homosexual but which

actually sanctions government discrimination and bigotry

- violate the equal-protection guarantee of the Fifth

Amendment?

3. On its face or as applied, does the “Don’t Ask,

Don’t Tell” policy impose an irrebuttable presumption of

misconduct against homosexual service members who

disclose their sexual orientation, in violation of the due-

process guarantee of the Fifth Amendment and the

Administrative Procedure Act (“APA”)?

4. By retroactively applying the “Don’t Ask, Don’t

Tell” policy in this case, has the government violated the

Bill-of-Attainder Clause or the APA?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ........... i

TAREE OF AUS TRR Eee «wo 05 ewc heya ceeencekes iv

CTOs CRG in v5.05 dd ao ewendeaeeeeeee er 1

Fr RIS 5 5 + oho den ak Once bien denen. 1

CONSTITUTIONAL, STATUTORY, AND REGULA-

TORY PROVISIONS INVOLVED ................. 2

STATEMENT OF THE CAMe woos ied nines pacs seers 2

I. The “Don’t Ask, Don’t Tell” Policy........ 2

II. Events Leading to Discharge .............. 5

III. Administrative Proceedings................ 6

iV. The Distelet (ome8. 5. oecsccacccsaeaeees 10

V. Thee Count of ARQ ..60.5-0.4 12

REASONS FOR GRANTING THE PETITION....... 15

I. This Case Raises Questions of Fundamental

Importance and the Decision of the Panel

Majority of the Court of Appeals Is Erro-

oo i a ee 16

II. The “Don’t Ask, Don’t Tell” Policy Is Receiv-

ing Conflicting Results In an Increasing

Number of Lower Court Actions .......... 26

COINNCLASIIIN «os 5 end dna cee eee 28

APPENDIX A: Opinion of the United States Court

of Appeals for the Eighth Circuit (3 October

|. * nant ree sce ke App. 1

APPENDIX B: Order and Judgment of the United

States District Court for the District of

Nebraska (11 December 1995)................ App. 23

lil

TABI © OF CONTENTS - Continued

Page

APPENDIX C: Memorandum Opinion of the

United States District Court for the District of

Nebraska (11 December 1995)................ App.

APPENDIX D: Action of the Secretary of the Air

powce (20 Ampust 1995).............0.000005. App.

APPENDIX E: Memorandum for the Secretary of

the Air Force (9 March 1995)................ App.

APPENDIX F: Record of Proceedings, Air Force

Board of Review (24 February 1995) ......... App.

APPENDIX G: Recommendations of the Board of

Inquiry (21 June 1994)......................, App.

APPENDIX H: Order Denying Petition for Rehear-

ing and Suggestion for Rehearing En Banc (17

GE App.

APPENDIX I: Administrative Procedure Act (5

eee App.

APPENDIX J: National Defense Authorization Act

of 1994 (10 U.S.C. § 654) .............. eee, App.

APPENDIX K: Department of Defense Directive

1332.30 (21 December 1993).................. App.

TABLE OF AUTHORITIES CITED

Page

CASES

Able v. United States, 88 F.3d 1280 (2d Cir. 1996)..... 26

Able v. United States, 880 F. Supp. 968 (E.D.N.Y.

1995), aff'd in part, rev'd in part, and remanded, 88

F.3d 1280 (2d Cir. 1996) ......--eeeeee eee eee eeees 18

Bowen v. Georgetown Univ. Hosp., 488 U.S. 204

(19GB) once scscncssctensnegasecssssesesrsecsecseses 24

Brown v. Glines, 444 U.S. 348 (1980) ......-------ee 22

Cammermeyer v. Aspin, 850 F. Supp. 910 (W.D.

Wash. 1994), dismissed and remanded, 97 F.3d

1235 (9th Cir. 1996)......... cece eee cere eee eees 18, 27

City of Cleburne v. Cleburne Living Center, 473 USS.

E32 (19GB). 5 oc ccc ce serenes eeewks piece enna ene k 17

Dahl v. Secretary of the Navy, 830 F. Supp. 1319

(E.D. Cal. 1993) ......cceeece rere eeecececeeecerees 27

Frontiero v. Richardson, 411 U.S. 677 (1973)....-..++-- 23

Gay Lib v. University of Missouri, 558 F.2d 848 (8th

Cir. 1977), cert. denied, 434 U.S. 1080 oy) 22

Greer v. Spock, 424 U.S. 828 (1976).....-+-+++esee eee: 22

Holmes v. California Army Nat'l Guard, 920 F. Supp.

1510 (N.D. Cal. 1996), appeal pending No.

96-15726 (9th Cir.) ..... 0. eee e eee e reece neces 25, 26

Hurley v. Irish-American Gay Group of Boston, 115 S.

Ct. 2338 (1995) 00... cic ccccccccecsccccccscccsccees 23

Meinhold v. United States Dep’t of Defense, 34 F.3d

1469 (9th Cir. 1994)........ cece cece e teen ences 27

Palmore v. Sidoti, 466 U.S. 429 (1984) .......---++- 16-17

TABLE OF AUTHORITIES CITED - Continued

Page

R.A.V. v. City of St. Paul, 112 S. Ct. 2538, 2542

GRMNS sce Geis pa ee a sack eee tol

Romer v. Evans, 116 S. Ct. 1620 (1996)............ 17-18

Rostker v. Goldberg, 453 U.S. 57 (1981)............... 17

San Antonio Independent Sch. District v. Rodriguez,

Gee Sue & CR hoi 0 bs ceens eee eee 23

Texas v. Johnson, 491 U.S. 397 (1989)................. 23

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

cert. denied, 117 S. Ct. 358 (Oct. 21, 1996) ...18-19, 26

Thomasson v. Perry, 895 F. Supp. 820 (E.D. Va. 1995) ..... 8

Thorne v. United States Dep't of Defense, 945 F.

Senpe. DES CED. Win. TOG oo ons nc nv cvccdsncndccnc, 25

_ ‘Turner Broadcasting System, Inc. v. FCC, 114 S. Ct.

SF SEOOD Ns hsb kad4 8s cee nercn een ec 21

United States v. Lovett, sae U.S. 303 (1946)........+.. 24

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

Cir. 1989) (en banc), cert. denied, 498 U.S. 957

LEPOUD ss 0s Kab view welkdeSas owe wemaesy euNe tees Coe 18

Watson v. Perry, 918 F. Supp. 1403 (W.D. Wash.

1996), appeal pending 96-35314 (9th Cir.)........ 27-28

Wayte v. United States, 470 U.S. 568 (1985)........... 21

Wisconsin v. Mitchell, 113 S. Ct. 2194 ‘a 13, 21

CONSTITUTIONAL PROVISIONS

Re ee 2 ao

TABLE OF AUTHORITIES CITED - Continued

Page

STATUTES AND REGULATIONS

Bip Some f.. Serer errr rer err eee Tee eT errr rer re eT 2

BA Lee Ferrer ere rerr Ter errr erry reer es 2, 3-4

BG U.S.C. © OGE 60 OG: oc ccs ccccecssesneacivsrvenrys 22

DoD Directive 1332.30 .......... 0.0.00. cee, 4-5, 20, 26

EPOGS EAGOCHVO TDGE EG bic ccescccecceessavecwereerers 4

Air Force Regulation 36-2................c cece eeees 4,8

Air Force Regulation 36-3206................00000 000. 8

OTHER

Nick Adde, “Maybe Courts Can’t Settle the Gay

Issue,” Air Force Times 14 April 1997.............. 19

C. Dixon Osburn & Michelle M. Benecke, Conduct

Unbecoming: The Third Annual Report on “Don’t

Ask, Don’t Tell, Don’t Pursue” (1997)............... 28

PETITION FOR WRIT OF CERTIORARI

The Petitioner, Richard F. Richenberg, Jr., respectfully

requests that this Court issue a Writ of Certiorari to

review the judgment of the United States Court of

Appeals for the Eighth Circuit.

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Eighth Circuit (App. 1-22) is reported at 97 F.3d 256.

The opinion of the United States District Court for the

District of Nebraska (App. 24-51) is reported at 909 F.

Supp. 1303. The findings and recommendation of the

Board of Inquiry (App. 59-61) and the final decision of

Respondent Widnall (App. 52) are not reported.

. JURISDICTION

The judgment of the United States Court of Appeals

for the Eighth Circuit was entered on 3 October 1996. The

court of appeals - in a tie vote, five-to-five — denied the

Petitioner’s timely petition for rehearing with suggestion

for rehearing en banc on 17 January 1997. (App. 62) The

jurisdiction of this Court is proper under 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL, STATUTORY, AND

REGULATORY PROVISIONS INVOLVED

United States Constitution, First Amendment: “Con-

gress shall make no law ..,,| . abridging the freedom of

speech... .” United States Constitution, Fifth Amendment:

“No person shall be. . . deprived of life, liberty, or

property, without due process of law... . ” United States

Constitution, Article One, Section 9, Clause 3: “No Bill of

Attainder or ex post facto Law shall be passed.” Adminis-

trative Procedure Act (“APA”) (5 U.S.C. § 706): (App.

63-64). Section 571 of the National Defense Authorization Act

of 1994 (10 U.S.C. § 654): (App. 65-71). Department of

Defense (“DoD”) Directive No. 1332.30: (App. 72-106).

STATEMENT OF THE CASE

This case involves a dedicated and highly decorated

Air Force officer, whose ten years of military service,

including twenty-five combat missions during Desert

Shield and Desert Storm, were nothing but exemplary. At

issue is whether the federal government can constitu-

tionally remove him from military service - under the

federal statute and regulations popularly known as the

“Don’t Ask, Don’t Tell” policy - simply because he

advised his commander that he is gay.

I. The “Don’t Ask, Don’t Tell” Policy.

The Act. On 30 November 1993, Congress enacted

the National Defense Authorization Act of 1994. Section

571 of this Act, entitled “Policy Concerning Homosex-

uality in the Armed Forces,” codified what is popularly

known as the “Don’t Ask, Don’t Tell” policy for the

military. 10 U.S.C. § 654 (“the Act”) (App. 65-71). The Act

purports to establish a policy that mere homosexual ori-

entation, by itself, is not incompatible with military ser-

vice. Id. at § 654(b)-(c) (App. 67-69). A person’s statement

that he or she is a homosexual, however, is sufficient

ground, without anything more, for discharge. Id. at

§ 654(b)(2) (App. 68).

Separation from the military is required if a service

member has merely stated that he or she is homosexual

“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 homo-

sexual acts.” Id. (App. 68). The Act does not define “pro-

pensity” or “intends” nor does it say what evidence or

what level of showing might suffice to rebut this pre-

sumption. The Act does define a “homosexual act” in two

subparagraphs: (A) “any bodily contact, actively under-

taken or passively permitted, between members of the

same sex for the purpose of Satisfying sexual desires” or

(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. at

654(f)(3) (App. 70).

Congress included several express findings in the

Act. These findings include a vague reference to the

presumed adverse reaction that might be engendered

among some heterosexuals if it were disclosed or commu-

nicated that another service member is a homosexual:

“The presence in the armed forces of persons who dem-

onstrate a propensity or intent to engage in homosexual

acts would create an unacceptable risk to the high stan-

dards of morale, good order and discipline, and unit

cohesion that are the essence of military capability.” Id. at

§ 654(a)(15) (App. 67).

The Regulations. On 21 December 1993, the Secre-

tary of Defense issued a number of directives implement-

ing and giving effect to the Act. These include a reissued

Directive 1332.30, entitled “Separation of Regular Com-

missioned Officers,” which took effect on 28 February

1994. DoD Dir. 1332.30 (App. 72-106).! The regulations

issued by the Secretary do not regard sexual orientation

as a basis for disqualification from the military. Directive

1332.30 explicitly states that “[a] member’s sexual orien-

tation is considered a personal and private matter, and is

not a bar to continued service . . . unless manifested by

homosexual conduct.” DoD Dir. 1332.30 Enc. 2 [2-1] | C

(App. 81-82).

Directive 1332.30 defines “homosexual conduct” as

including not only “homosexual acts” but also “a state-

ment by a member that demonstrates a propensity or

‘ At the same time that Directive 1332.30 was issued the

DoD also issued Directive No. 1332.14, which governs the

separation of enlisted personnel. These two Directives are

identical in all material respects. In February 1994, after these

new directives were issued, the Department of the Air Force

amended Air Force Regulation 36-2, entitléd “Officer Personnel,

Administrative Discharge Procedures.” This amendment

brought AFR 36-2 into conformity with Directive 1332.30 and

repeats the information, procedures, and definitions contained

in that document.

intent to engage in homosexual acts.” DoD Dir. 1332.30

Enc. 2 [2-1] ¥ C (App. 81). The simple statement “I am

gay,” in other words, constitutes “homosexual conduct.”

Any such statement - under Directive 1332.30, just like

under the Act - “creates a rebuttable presumption” that

the member “engages in homosexual acts or has a pro-

pensity or intent to do so.” DoD Dir. 1332.30 Enc. 2 [2-2]

{ b (App. 83). Directive 1332.30 does not distinguish

“propensity” from “intent” but defines “propensity” as

something “more than an abstract preference or desire to

engage in homosexual acts” and that “indicates a likeli-

hood that a person engages in or will engage in homosex-

ual acts.” DoD Dir. 1332.30 Enc: 1 [1-1] ¥ 13 (App. 79).

In determining whether an officer has successfully

rebutted the presumption that the officer engages in or

has a propensity or intent to engage in homosexual acts,

Directive 1332.30 requires that the following nonexclusive

factors be considered: (1) “[w]hether the officer has

engaged in homosexual acts”; (2) “[t]he officer’s cred-

ibility”; (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”: (5) “[a]ny

other evidence relevant to whether the officer is likely to

engage in homosexual acts.” DoD Dir. 1332.30 Enc. 2 [2-2]

1b(1)-(5) (App. 83-84). (All of these factors favored a

finding that Richenberg had rebutted the presumption).

II. Events Leading to Discharge.

In April 1993, petitioner Richenberg submitted a sep-

aration request to the Air Force asking that he be allowed

eR TE es 5 ae

to leave the military. (Pet. COA App. 18, 39). He submit-

ted this request because he had come to realize a few

months earlier that he is gay, and he knew that under the

regulations then in effect he could be forced out of the

service with a less-than-honorable discharge if his sexual

orientation became known. (Pet. COA App. 18). His

request was denied. The Air Force explained that his

resignation was “not considered to be in the best interests

of the Air Force.” (Pet. COA App. 18, 32-33).

Following the denial of this request to separate, Rich-

enberg became determined to Stay in the Air Force but as

a matter of principle and personal integrity he decided

that he had to tell his commanding officer that he is gay.

At the time of his request to separate and his decision to

inform his commanding officer of his sexual orientation,

Richenberg was in Texas training for an assignment in

Saudi Arabia. (Pet. COA App. 18-19). He decided to

inform his commander by sending him a letter. This letter

explained that “[t]his ha[d] been a year of extraordinary

personal growth for [him] and, after much soul search-

ing,” he had “accepted the fact that [he is a] homosex-

ual.” (Pet. COA App. 33, 42-43). Around this same time,

Richenberg also privately told two friends and fellow

officers that he is gay. (Pet. COA App. 18-19).

III. Administrative Proceedings.

First Board of Inquiry (December 1993). As a conse-

quence of Richenberg’s letter and his Statements to his

friends - and nothing more - the Air Force began pro-

ceedings to discharge him.2 These proceedings included

convening a three-member administrative board of

inquiry (“BOI”). A hearing was held before this board

and, on 2 December 1993, the board recommended that

Richenberg be discharged, pursuant to the now super-

seded version of Air Force Regulation 36-2. (Pet. COA

App. 19). On 30 November 1993, a few days before the

board’s recommendation, Congress passed the Act. As a

consequence of this new law and the regulations that

shortly followed, the Air Force decided to reprocess Rich-

enberg for discharge, applying the new federal “Don’t

Ask, Don’t Tell” policy retroactively to his statement.

Second Board of Inquiry (June 1994). A second

three-member board of inquiry was convened in June

1994. During this BOI proceeding, Richenberg testified,

under oath and subject to cross-examination, that when

2 In addition to immediate discharge proceedings,

Richenberg’s superior officers took several steps to derail

Richenberg’s career, including: revoking his security clearance

so that he would no longer have access to equipment, materials,

and information used by other Electronic Warfare Officers (like

Richenberg) to improve and maintain their skills; revoking his

flight status so that he could no longer fly; and, assigning him to

an administrative desk job. In addition to these actions,

Richenberg’s superior officers immediately began to evaluate

his performance negatively. After more than eight years of

excellent evaluations, Richenberg’s commanding officers filed

two negative Officer Performance Reports. During the

administrative board proceedings, Richenberg’s commanding

officer admitted that the only reason for rating Richenberg

negatively was because he had stated that he is gay. (Pet. COA

App. 227-39).

he stated to his commanding officer that he is gay, he did

not intend to engage in prohibited conduct.3

He also testified that he did not intend to engage in

prohibited conduct at any time in the future:

Finally, I would like to make clear in no uncer-

tain terms that my statement of my orientation

was exactly that, a statement. It was a statement

of my mind and not of my body. It was not a

declaration that I had any intentions of doing

anything that I said that I would not do. I did

not then intend to engage in prohibited conduct,

I do not now intend to engage in prohibited

conduct, nor do I, in the future, intend to engage

in prohibited conduct.

(Pet. COA App. 297). Following this statement, Richen-

berg was cross-examined extensively by the Air Force’s

Recorder, during which Richenberg gave no basis to

doubt his sincerity or credibility. (Pet. COA App.

° By making a sworn statement under oath (which

Richenberg had not done in the first BOI proceedings),

Richenberg allowed the Air Force a complete opportunity to

attack his evidence. Richenberg could have made no statement

at all or made an oral or written unsworn statement, in either of

which case he would not have been subject to cross

examination. See (Pet. COA App. 534 (AF Reg. 36-2, 7-3h), 599

(AF Inst. 36-3206, 7.3.7)). In this important sense, the facts of this

case differ from the facts of Thomasson v. Perry, 80 F.3d 915 (4th

Cir.) (en banc) cert. denied, 117 S. Ct. 358 (1996). In Thomasson,

the service member did not make a statement regarding

whether he did or did not intend to engage in homosexual

conduct; he made only an unsworn statement that he is a gay

man, on which the government could not cross examine him. See

Thomasson v. Perry, 895 F. Supp. 820, 830 (E.D. Va. 1995).

297-308). During these proceedings, Richenberg submit-

ted extensive evidence of his impeccable record and four

officers, all members of his squadron, testified that Rich-

enberg’s presence in their military unit had no negative

effect on morale or cohesion and that they would all be

willing, without problem or objection, to work with and

fly with him. Each officer testified that he was proud to

serve with Richenberg and stated that Richenberg is a

man of his word and that his integrity and honesty are

unquestionable. (Pet. COA App. 249-94). The Air Force

submitted no evidence during the proceedings of any

improper or homosexual conduct by Richenberg.

On 21 June 1994, after approximately an hour of

deliberation, the board recommended that Richenberg be

discharged. (App. 59-61). The board found that Richen-

berg had made three statements that he is gay — in the

letter to his commanding officer and to his friends and

fellow officers. The board concluded, without any further

explanation or findings, that Richenberg therefore has “a

propensity to engage in or intent to engage in homosex-

ual acts.” (App. 60).

Post-Board Proceedings. Following the second BOI,

an Air Force Board of Review accepted the findings of the

BOI and recommended that Richenberg be discharged.

(App. 57). On 28 August 1995, the Secretary of the Air

Force, following the recommendation of the Deputy for

Air Force Review Boards (App. 53-56), issued an order to

discharge Richenberg. (App. 52).

IV. The District Court.

On 31 August 1995, Richenberg commenced this

action in the district court for Nebraska seeking, among

other relief, a declaration that the policy, on its face and

as applied, is unconstitutional and that his discharge

violated the APA. At the same time, Richenberg brought a

motion for immediate injunctive relief to prevent the Air

Force from discharging him. The district court granted

the motion and required the parties to submit expedited

cross motions for summary judgment. Richenberg’s

motion to compel discovery of documents and other

information before the cross motions were heard was

denied. On 11 December 1995, the district court granted

summary judgment for the respondents on all claims.

(App. 23-51).

In its Memorandum Opinion, the district court

acknowledged “that there certainly is prejudice against

homosexuals” in the military but concluded that “the

Court is called upon to determine the constitutionality of

the policy - not its wisdom.” (App. 40). The court then

applied an extreme form of deference to Congress and the

military by declining to scrutinize the record or examine,

in any depth, the government's purported justifications

for the policy at issue.

The district court rejected Richenberg’s claim that the

policy on its face and as applied violates the First

Amendment. The court acknowledged that “[t]here is

little doubt that the policy affects speech” but maintained

that “[t]he only restriction on [Richenberg’s] speech is the

ability to state that he is homosexual.” (App. 36). The

district court stated that although “this may result in a

denial of self-identity, [Richenberg’s] interests in auton-

omy and self-identity are subordinate to the military

interests in good order and discipline, morale, unit cohe-

sion and combat readiness.” (App. 36). The district court

gave no express consideration to the substantial record

that supports Richenberg’s contention that the legislative

history and operative effects of the policy reveal that the

actual objective of the policy is to inhibit service members

from telling anyone that they are gay. The purpose of this

policy objective is to guard against the negative reaction

that might be engendered if anyone expressly discloses

that he or she is homosexual.

The district court also rejected Richenberg’s equal-

protection claim. Applying a rational-basis review and

rejecting Richenberg’s claim that the policy is based on an

inherently suspect classification (i.e., sexual orientation),

the court held that the government has a legitimate inter-

est in banning persons who have a “propensity” to

engage in homosexual conduct because Congress has

determined that .”the presence of persons who demon-

strate a propensity to engage in homosexual conduct

presents an unacceptable risk to unit cohesion, morale,

good order and discipline and military readiness.” (App.

40). The court concluded that “the military may rationally

and reasonably infer from a statement of homosexuality

that a member has a propensity to engage in homosexual

conduct.” (App. 41).

The court did not address the fact that the new policy

of the military expressly allows undeclared homosexuals

to serve in the military nor did the district court explain

how any rational distinction on “propensity” grounds can

be drawn between the treatment of undeclared and

declared homosexuals. The district court also rejected

Richenberg’s due process, bill-of-attainder, and APA

claims. (App. 44-51). On 19 December 1995, the district

court denied Richenberg’s motion for an injunction pend-

ing appeal and Richenberg, the same day, filed a notice of

appeal and a motion with the court of appeals for an

injunction pending appeal.

V. The Court of Appeals.

On 26 December 1995, a divided panel of the court of

appeals denied the motion for an injunction pending

appeal. Shortly thereafter the Air Force discharged Rich-

enberg. On 8 April 1996, the court of appeals heard oral

arguments on the merits of Richenberg’s appeal. On 3

October 1996, a divided panel of the court of appeals

affirmed the judgment of the district court. (App. 1-22).

The Panel Majority. Judge Loken wrote the majority

opinion for the panel and rejected Richenberg’s equal-

protection argument, applying a rational-basis review

(like the district court). In its analysis, the panel majority

repeated an overarching (and erroneous) theme that

would run throughout the entire opinion. The court

asserted that the policy at issue does not “target mere

status or speech” and that the discharge of Richenberg

was not solely on the basis of his speech or his status as a

declared homosexual. (App. 10, 14). The panel majority

maintained that the policy is only directed at service

members who “commit, attempt to commit, intend to

commit, or have a propensity to commit unacceptable

sexual acts.” (App. 10 (emphasis in Original)).

The panel majority made no attempt to try to explain

how - if the policy does not “target mere status or

speech” — the policy can rationally draws a distinction

between undeclared homosexuals (who are allowed to

serve) and declared homosexuals (who are presumed to

commit unacceptable sexual acts). Like the district court,

the court of appeals accepted the “unit cohesion” argu-

ment of the government as a legitimate objective. (App.

11-12). Also like the district court, the appellate court

declined —- despite the extensive and contrary congres-

sional record — to examine in any depth whether the

actual objective behind the policy was to cater to hate and

prejudice that some service members might feel toward

homosexuals.

The panel majority briefly dismissed Richenberg’s

First Amendment challenge as “without merit” on the

ground that the First Amendment is not implicated by

Richenberg’s discharge. (App. 14). According to the panel

majority, Richenberg’s statement that he is gay was only

used as “evidence” that he has a “propensity” to engage

in prohibited sexual acts. (App. 14). The panel majority

stated that the First Amendment “ ‘does not prohibit the

evidentiary use of speech to establish the elements of a

crime or to prove motive or intent.’” (App. 14 (quoting

Wisconsin v. Mitchell, 508 U.S. 476, 489 (1993)). The panel

majority gave no express consideration to the obvious

fact that the human trait revealed by the statement “I am

gay” is not supposed to disqualify a person from service

under the new policy.

Finally, like the district court, the panel majority also

rejected Richenberg’s due process, bill-of-attainder, and

APA claims. On the due process claim, the panel majority

held that the presumption of sexual misconduct that was

applied to Richenberg was neither impermissible nor irre-

buttable. (App. 13-14). The court of appeals said essen-

tially nothing about the bill-of-attainder claim and the

fact that the policy had been applied retroactively to

Richenberg. (App. 17). On the APA claim, the panel

majority held that the policy was properly applied to

Richenberg. (App. 15-17).

The Panel Dissent. Chief Judge Arnold dissented

from the panel majority’s opinion. He explained that the

new statute supporting the military’s policy “blurs the

line between status and conduct by making a ser-

vicemember’s admission that he or she is a homosexual

sufficient grounds for presuming that the servicemember

is likely to or intends to engage in prohibited conduct.”

(App. 17-18). After reviewing the record, the dissent

explained that all of the evidence supported a finding

that Richenberg had rebutted the presumption and none

of the evidence seem to support the BOI’s decision rec-

ommending discharge.

Chief Judge Arnold explained that Richenberg swore

under oath at his hearing that he had no intention of

acting on his homosexual orientation and “that he was

‘very capable’ of abstaining from prohibited conduct.”

(App. 19). The record, as Chief Judge Arnold explained,

“presents many reasons to believe him and insufficient

reason to doubt him.” (App. 19). Richenberg, by all

accounts, was “an outstanding Air Force officer,” whose

performance reports “are full of praise for his profession-

alism, dedication, and leadership abilities, and he

received many medals over the course of his Air Force

career.” (App. 19-20). Richenberg also “flew 25 combat

missions in Operation Desert Storm.” (App. 19). Further-

more four fellow officers attested at the BOI hearing to

Richenberg’s “honesty, integrity, and discipline, as well as

to his dedication and loyalty to the Air Force.” (App. 20).

The government, as the dissent explained, introduced

no evidence that called any of the testimony in Richen-

berg’s favor into question and the BOI did not explain

why it found that Richenberg “had filed to rebut the

presumption.” (App. 20). Chief Judge Arnold explained

that Richenberg’s admission under cross-examination

“that he was physically attracted to men” “adds nothing

to his admission of homosexuality” and “[w]ere it enough

to justify the Board’s finding, the presumption would be

effectively irrebuttable and, therefore, unconstitutional.”

(App. 21). In the end, Chief Judge Arnold would have

reversed the judgment of the district court and remanded

with directions to grant Richenberg’s motion for sum-

mary judgment or, in the alternative, remanded the case

to the district court with instructions for remand to the

Board of Inquiry: for an explanation of its decision to

discharge Richenberg. (App. 21-22).

On 17 January 1997 the panel denied Richenberg’s

petition for rehearing and an evenly divided full court -

on a five-to-five vote — refused Richenberg’s suggestion

for rehearing en banc.

REASONS FOR GRANTING THE PETITION

This case presents constitutional issues of exceptional

importance. Under the new policy, the government no

longer disputes that homosexuality is not inherently

incompatible with military service. The government justi-

fies its policy of discharging service members who state

that they are gay on the ground that other service mem-

bers will be upset and disruptive if they know that a

service member is gay. This justification is by its terms

based on irrational prejudice, and the constitution does

not cater to prejudice. Richenberg maintains that his dis-

charge and the retroactive application of the “Don’t Ask,

Don’t Tell” policy violate the constitutional guarantee to

equal protection of the laws, freedom of speech, due

process, and the Bill-of-Attainder Clause. Chief Judge

Arnold correctly labeled the issues raised as “large con-

stitutional questions.” (App. 22).

This case is one of several involving the “Don’t Ask,

Don’t Tell” policy that are cropping up all over the coun-

try. The lower courts, including in cases under the former

military policy, are reaching conflicting results. The

divided court in this case - on the merits by the panel and

on the vote of the full court for rehearing en banc - is

reflective of the continuing division in the lower courts.

This Court should grant this petition to definitively settle

the constitutional issues faced by and dividing the lower

courts.

I. This Case Raises Questions of Fundamental Impor-

tance and the Decision of the Panel Majority of the

Court of Appeals Is Erroneous.

1. This Court has long recognized that a govern-

ment policy that is based on invidious or irrational preju-

dice cannot serve a legitimate governmental purpose. In

Palmore v. Sidoti, 466 U.S. 429 (1984), the Court explained:

Private biases may be outside the reach of the

law, but the law cannot, directly or indirectly,

give them effect. “Public officials sworn to

uphold the Constitution may not avoid a consti-

tutional duty by bowing to the hypothetical

effects of private racial prejudice that they

assume to be both widely and deeply held.”

Id. at 433 (quoting Palmer v. Thompson, 403 U.S. 217,

260-61 (1971) (White, J. dissenting); see also City of

Cleburne v. Cleburne Living Center, 473 U.S. 432, 447-50

(1985). The decision upholding the discharge of Richen-

berg cannot be harmonized with this principle. Richen-

berg is not asking the courts - as the district court

implied — to determine the “wisdom” of the policy. Rich-

enberg is only asking the courts to determine its constitu-

tionality.4

This Court recently had its first occasion to apply this

principle in the context of a law that discriminates on the

basis of sexual orientation. In Romer v. Evans, 116 S. Ct.

1620 (1996) (which the panel majority only mentioned in

passing (App. 9)), the Court held unconstitutional a state

constitutional amendment that “raise[d] the inevitable

inference that the disadvantage imposed [by the law was]

born of animosity toward the class of persons affected

li-e., gays and lesbians].” Id. at 1628. The Court observed

that “[i]f the constitutional conception of ‘equal protec-

tion of the laws’ means anything, it must at the very least

* On Richenberg’s equal-protection claim (and bill-of-

attainder claim), no deference is due the government because

this case involves the military. In Rostker v. Goldberg, 453 U.S. 57

(1981), this Court explained that “a different equal protection

test” does not apply simply because a case arises in “the military

context.” Id. at 71.

mean that a bare . . . desire to harm a politically unpopu-

lar group cannot constitute a legitimate governmental

interest.’” Id. (emphasis in original) (quoting United

States Dep't of Agriculture v. Moreno, 413 U.S. 528, 534

(1973)).

Here, the legislative history and operative effects of

the policy expose that the real objective of the “Don’t

Ask, Don’t Tell” policy is to inhibit service members from

telling anyone that they are gay and to guard against the

negative reaction that might be engendered if anyone

expressly discloses that he or she is homosexual. Indeed,

“[t]he sole motivation for the exclusion of acknowledged

homosexuals from military service is prejudice.” Cammer-

meyer v. Aspin, 850 F. Supp. 910, 924 (W.D. Wash. 1994),

dismissed and remanded, 97 F.3d 1235 (9th Cir. 1996).5 Capt.

Richenberg presented a great deal of evidence of this

objective in his brief, including references to several parts

of the legislative record.® See also, e.g., Thomasson v. Perry,

° Several lower courts have noted the striking similarities

between the rationales used against homosexuals and the

military’s former resistance to racial desegregation. See, e.g.,

Watkins v. United States Army, 875 F.2d 699, 729 (9th Cir. 1989)

(en banc) (Watkins, J., concurring), cert. denied, 498 U.S. 957

(1990); Able v. United States, 880 F. Supp. 968, 978 - 79 (E.D.N.Y.

1995), aff'd in part, rev'd in part, and remanded, 88 F.3d 1280 (2d

Cir. 1996); Cammermeyer, 850 F. Supp. at 923.

stating that the issue before Congress was whether or not to

“allow[ ] homosexuals and lesbians to openly serve”); Pet. COA

App. 752 (Senate Hearings; Com. Pledger testifying: “I do not

think there is any physical or mental or any other difference in

their capabilities compared with the heterosexual. But as we

have been talking about all day, it is the attitudes of the majority

Ba a ge el id ae

80 F.3d 915, (4th Cir. 1996) (“The evidence that prejudice

against homosexuals is a Purpose of “don’t ask, don’t

tell” is . . . quite strong.”) (Hall, J., dissenting). The district

court found “that there certainly is prejudice against

homosexuals” in the military (App. 40) but then — together

with the appellate court - gave effect to that prejudice.

2. In addition to the illegitimate objective of the

policy, the policy also operates in an irrational and dis-

criminatory manner. The new policy, as explained above,

expressly allows homosexuals to serve in the military. But

if a service member tells someone that he or she is gay,

the policy presumes that the service member has a “pro-

pensity” to engage in homosexual acts. This distinction

between declared and undeclared homosexuals is utterly

irrational, and the panel majority did not discuss it. The

panel majority simply concluded that “it is rational to

assume that both homosexuals and heterosexuals ‘are

likely to act in accordance with their sexual drives.’ ”

of the heterosexuals and the reactions” that creates the

problem); Pet. COA App. 753 (Senate Hearings; Capt. Wolf

testifying that with “someone who is not only homosexual but is

openly homosexual . . . the members of the Marine

Corps . . . abhor that lifestyle, or simply will not accept that

person as a member of a team”).

In their briefs below, the government has generally refused

to acknowledge that the policy at issue caters to prejudice, but

Outside the courts, the government is willing to make this

admission. The very government lawyer who defended this

case below was recently reported as Saying that “the gay ban is

based on possible ‘reactions from other people,’ who may be

bothered by the presence of homosexuals among them.” Nick

Adde, “Maybe Courts Can’t Settle the Gay Issue,” Air Force

Times, 14 April 1997 at 8 (quoting Department of Justice

attorney, Anthony Steinmeyer).

(App. 12). This misses the point entirely, and says nothing

about why declared homosexuals are presumed to have a

“propensity” and undeclared homosexuals do not.

The irrational effects of the policy are especially

made apparent by reading the policy in its entirety. The

regulations expressly allow service members to frequent

“gay bar[s],” to possess or read “homosexual publica-

tions,” to associate “with known homosexuals,” and to

“march{ ] in gay rights rallfies].” DoD Dir. 1332.30 Enc. 8

[8-2] | C3d (App. 104). What the new policy will simply

not allow, is for a service member to tel! someone that he

or she is gay. If a service member says “I am gay,” that

statement by itself becomes a basis for discharge. How is

it rational to allow gay service members to engage in all

of these activities yet discharge them if they tell anyone

that they are gay? The fact that service members are

expressly allowed do all of these things but are not

allowed to tell anyone that they are gay demonstrates not

only that the policy is irrational but also that the policy is

designed to suppress speech and to discriminate against

homosexuals who happen or dare to tell someone their

sexual orientation.

3. In addition to violating the equal-protection

guarantee, the policy also violates the First Amendment's

guarantee of freedom of speech. Once it is understood

that the policy is indeed directed at speech rather than

conduct - especially as applied to Richenberg - the policy

should be clearly understood as a “content-based” regu-

lation of speech, and thus subject to heightened scrutiny.”

7 The panel majority’s conclusion that the First

Amendment is not implicated in this case is mistaken. This is

pete bh at Ab

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If a law “by [its] general terms distinguish[es] favored

speech from disfavored speech on the basis of the ideas

or views expressed” the law is a content-based regulation

of speech. Turner Broadcasting System, Inc. v. FCC, 114 S.

Ct. 2445, 2459 (1994). The “Don’t Ask, Don’t Tell” policy

is plainly a content-based restriction because it identifies

the speech that triggers the presumption on the basis of

the content of the speech. Service members who say, “I

am heterosexual” or who say nothing at all are not sub-

ject to dismissal but those who say “I am gay” are subject

to dismissal.

Content-based regulations of speech are presump-

tively invalid under the First Amendment. R.A.V. v. City

of St. Paul, 112 S. Ct. 2538, 2542 (1992) (“Content-based

regulations are presumptively invalid.”). The fact that the

policy involves the military does not mean that the courts

are not competent to review the constitutionality of the

policy or that the courts should abdicate their respon-

sibility to do so. This Court has held that First-Amend-

ment rights can be circumscribed in the military, but the

not a case like the criminal cases that the panel majority cites. In

Wayte v. United States, 470 U.S. 568 (1985), for example, the

government used the defendant’s “self-reporting” of an actual

criminal violation —- namely, the failure to register for the draft -

as a basis for deciding to prosecute and for securing a

conviction for that violation. Id. at 610-11. Likewise, in

Wisconsin v. Mitchell, 113 S. Ct. 2194 (1993), the Supreme Court

held that it did not violate the First Amendment to use racist

speech “to establish the elements of a crime or to prove motive

or intent” for a crime that was actually committed.” Id. at 2201.

Here, the mere statement of one’s homosexuality has no

“evidentiary value” because the human trait revealed by that

statement is not supposed to disqualify a person from military

service.

Court has only upheld restrictions on speech in the mili-

tary when the restrictions “protect a substantial Govern-

ment interest unrelated to the suppression of free

expression” and when they operate in an evenhanded

and appropriately limited fashion. Brown v. Glines, 444

U.S. 348, 354 (1980); see also Greer v. Spock, 424 U.S. 828,

838 — 39 (1976) (“there is no claim that the military

authorities discriminated in any way” based on the

speaker’s “supposed . . . views” and the challenged regu-

lation was not aimed at “the suppression of free expres-

sion”).8

Any attempt to argue that the policy protects a sub-

stantial government interest and is no more restrictive

than reasonably necessary to protect that interest should

fail. The government, for example, cannot successfully

argue that the policy is ultimately directed at the prohibi-

tion of acts. The purported fear that acknowledged gays

will engage in prohibited acts should not be a valid basis

for restricting free-speech rights. See, e.g., Gay Lib v. Uni-

versity of Missouri, 558 F.2d 848, 853 (8th Cir. 1977), cert.

denied, 434 U.S. 1080 (1978). In any event, inappropriate

behavior by gay service members, whether their sexual

orientation is declared or undeclared, is already con-

trolled by the Uniform Code of Military Justice and var-

ious Air Force regulations. See 10 U.S.C. § 801 et seq.

8 Here, the policy should warrant an even more searching

review than in Brown and Greer because the policy imposes

intentional and explicit content-based limitations on expression

for the purpose of suppressing an unwelcome message.

Nevertheless, even under a less stringent test, the government's

purported justifications for the policy cannot withstand

scrutiny.

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(numerous provisions prohibiting sodomy, rape, sexual

harassment, fraternization, etc.). The government has

made no showing that these regulations are inadequate.

The “unit-cohesion” rationale of the government is

likewise not valid under the First Amendment. This

Court has been uncompromising in holding that an antic-

ipated negative reaction to the content of the message is

not sufficient, under the First Amendment, to justify the

suppression of speech. One of the “bedrock principles” of

the First Amendment is that the government cannot pro-

hibit 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 Hurley v. Irish-

American Gay, Lesbian and Bisexual Group, 115 S. Ct. 2338,

2346 (1995) (the expression of one’s “identity as openly

gay” and the effort “to show that there are such individ-

uals in the community, and to support. . . like men and

women” merit First-Amendment protection).

4. Richenberg maintains that people with a homo-

sexual orientation constitute a Suspect class and that the

“Don’t Ask, Don’t Tell” policy, therefore, should be sub-

ject to some form of heightened scrutiny under an equal-

Protection analysis. This Court has identified several cri-

teria for determining whether heightened scrutiny

applies. See San Antonio Indep. Sch. Dist. v, Rodriguez, 411

U.S. 1, 28 (1973); Frontiero v. Richardson, 411 US. 677, 686

(1973). In this case all of the factors that this Court usu-

ally considers support the conclusion that laws classify-

ing according to sexual orientation are “suspect.” Nearly

every lower court that has decided that homosexuals are

not a suspect class has done so with little or no analysis

of this Court's criteria and has done so with an emphasis

that persons engaging in homosexual conduct do not con-

stitute a suspect class.

Richenberg presented an extensive record below sup-

porting each of the factors that this Court considers in

deciding whether a classification is “suspect,” including

affidavits from leading historians, scientists, and social

scientists. (Pet. COA App. 897-1124). The government

submitted no evidence on any of these factors and the

panel majority, like the district court, concluded — vir-

tually without a word of analysis - that no heightened

scrutiny should apply to-the policy. The majority, instead,

simply cites to other court decisions that conducted little

of no analysis. The panel majority, like other lower

courts, seems to have abandoned the analysis sanctioned

by this Court and retreated to some other undisclosed

formulation of this Court’s legal standards.

5. The “Don’t Ask, Don’t Tell” policy as retroac-

tively applied to Richenberg also raises serious problems.

The policy was enacted after Richenberg stated that he is

gay and then applied back in time to the statements that

he made several months earlier. The panel majority gave

no reason why the government should be allowed in this

instance to apply a statute and regulations retroactively.

Retroactive laws and regulations, especially those that

result in a punishment of the sort here, are by their nature

constitutionally suspect and should run afoul of the Bill-

of-Attainder Clause and the APA. See, e.g., Bowen v.

Georgetown Univ. Hosp., 488 U.S. 204, 208-09 (1988)

(“[rletroactivity is not favored in the law” and regula-

tions typically cannot be applied retroactively); United

States v. Lovett, 328 U.S. 303, 316 (1946) (disqualification

reread

“from any opportunity to serve the Government is pun-

ishment, and of a most severe type”).

6. Finally, the facts of this case and the decision of

respondent Widnall to discharge Richenberg en the basis

of his mere statement that he is gay not only demonstrate

clearly that the presumption in the policy is irrebuttable

but also that the decision to discharge him violates the

APA. The panel majority concluded that the presumption

in the policy is not irrebuttable but its sole basis for this

conclusion was that “the district court found that seven

servicemembers have successfully rebutted it.” (App. 13).

This supposed “finding” is supported by only a single

sentence in an unsubstantiated declaration filed by an Air

Force major in opposition to Richenberg’s application for

a temporary restraining order in the district court. Rich-

enberg attempted to develop evidence of his own on this

subject but was prevented by the district court when it

prohibited Richenberg from availing himself of any

method of discovery. The single-sentence assertion in the

declaration is the ‘same type of “evidence” that other

courts have found highly Suspect. See, e.g., Holmes v,.

California Army Nat'l Guard, 920 F. Supp. 1510, 1528-29

(N.D. Cal. 1996) (“the mere contention that a handful of

service members have successfully rebutted the presump-

tion is of little, if any, probative value”), appeal pending,

No. 96-15726 (9th Cir.); but see Thorne v. United States Dep't

of Defense, 945 F. Supp. 925, 929 (E.D. Va. 1996) (finding

sufficient that only one of eight cases of supposed rebut-

tal supported government's assertion).

During his second BOI, Richenberg made a sworn

statement under oath and subject to cross examination

and he presented considerable and undisputed evidence

regarding his “past conduct, character and credibility”

and the “nature and circumstances” of his statements.

DoD Dir. 1332.30 Enc. 2 [2-2] 1b(1)-(5) (App. 83-84). All of

this evidence demonstrated conclusively that Richenberg

has no “propensity” to engage in prohibited homosexual

conduct. The Air Force’s Recorder did not present any

evidence that would suggest anything to the contrary,

including during his cross-examination of Richenberg. On

appeal, the panel majority relied on the fact that Richen-

berg acknowledged under cross examination that he is

physically attracted to men. (App. 16) Chief Judge Arnold

correctly explained that “[t]his admission adds nothing to

his admission of homosexuality. Were it enough to justify

the Board’s finding, the presumption would be effectively

irrebuttable and, therefore, unconstitutional.” (App. 21).

Il. The “Don’t Ask, Don’t Tell” Policy Is Receiving

Conflicting Results In an Increasing Number of

Lower Court Actions.

The divided court of appeals in this case - on the

merits by the panel and on the vote of the full court on

the suggestion for rehearing en banc -~ is reflective of the

division in the lower courts on the constitutionality of the

“Don’t Ask, Don’t Tell” policy. Lower-court opinions on

the issues raised by this case are proliferating at a signifi-

cant rate and the courts are reaching conflicting conclu-

sions. Compare, e.g., Holmes, 920 F. Supp. 1510 (policy

violates First and Fifth Amendments), with Thomasson v.

Perry, 80 F.3d 915 (4th Cir.), cert. denied, 117 S. Ct. 358

(1996) (upholding constitutionality of policy but with

divided court: six judges holding that regulations of pol-

icy exceed statutory authority and four judges would

hold policy unconstitutional); Able v. United States, 88 F.3d

1280 (2d Cir. 1996) (reversing district court’s First-

Amending holding and remanding for consideration of

whether prohibition on homosexual acts is valid).

The conflicting conclusions of the lower courts also

included several decisions finding constitutional prob-

lems with the military’s former policy. See, e.g., Cammer-

meyer v. Aspin, 850 F. Supp. 910, 917 (W.D. Wash. 1994)

(striking down former policy as unconstitutional on the

ground that the policy was rooted in prejudice against

homosexuals), dismissed as moot, 97 F.3d 1235 (9th Cir.

1996); Dahl v. Secretary of the Navy, 830 F. Supp. 1319 (E.D.

Cal. 1993) (policy is motivated by prejudice and without a

legitimate objective). The Ninth Circuit's decision under

the former policy in Meinhold v. United States Dep't of

Defense, 34 F.3d 1469 (9th Cir. 1994), is particularly diffi-

cult to square with the Eighth Circuit’s decision in this

case. In Meinhold, the court held that the mere statement

that one is a homosexual is insufficient to “show a con-

crete, fixed, or expressed desire to commit homosexual

acts.” 34 F.3d at 1479; see also id. at 1478 (“at least a

serious question is raised whether it can 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”). If

Meinhold were the law in the Eighth Circuit, Richenberg’s

mere statement that he is gay would not have properly

triggered discharge proceedings because his statement

would be insufficient evidence to give rise to a presump-

tion of misconduct. See Watson v. Perry, 918 F. Supp. 1403,

1414 (W.D. Wash. 1996) (recognizing that under Meinhold

discharge proceedings cannot constitutionally be trig-

gered against a member who merely makes the statement

“I have a homosexual orientation” or “I am gay”), appeal

pending No. 96-35314 (9th Cir.).

The number of cases in the federal courts is likely to

increase given the increasing and record number of dis-

charges under the policy. One organization’s recent

report shows that the government is currently experienc-

ing the highest rate of discharge since 1987, with 850

service members discharged in 1996, compared with 722

in 1995, and 597 in 1994. See C. Dixon Osburn & Michelle

M. Benecke, Conduct Unbecoming: The Third Annual Report

on “Don't Ask, Don’t Tell, Don’t Pursue” at 2 & Exh. 2

(1997). This increasing number of discharges further sup-

ports the need for this Court to grant this petition and

decided these issues.

CONCLUSION

Government sanctioned bigotry and prejudice in the

military should be unconstitutional. For the reasons stated

above, the petition for writ of certiorari should be granted.

Respectfully submitted,

THomas C. KAYSER

Counsel of Record

RANDALL TIETJEN

Rosins, KAPLAN, MILLER

& Ciresi L.L.P.

2800 LaSalle Plaza

800 LaSalle Avenue

Minneapolis, Minnesota 55402

(612) 349-8500

Attorneys for Petitioner

15 April 1997

eel

App. 1

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 95-4181

Richard F. Richenberg, Jr.,

Plaintiff - Appellant,

Appeal from the United

States District Court for

" the District of

, Nebraska.

William J. Perry, Secretary

of Defense; Sheila

Widnall, Secretary of the

Air Force,

Defendants — Appellees.

oa * o. oa = as = * +

Submitted: April 8, 1996

Filed: October 3, 1996

Before RICHARD S. ARNOLD, Chief Judge, MAGILL,

and LOKEN, Circuit Judges.

LOKEN, Circuit Judge.

Richard F. Richenberg, Jr., appeals the district

court's) grant of summary judgment upholding an Air

Force decision to honorably discharge him under the

* The HONORABLE LYLE E. STROM, United States

District Judge for the District of Nebraska.

App. 2

military’s “Don’t Ask, Don’t Tell” policy regarding homo-

sexuals. The policy was adopted to implement a 1993

statute, 10 U.S.C. § 654. Richenberg claims that the policy

violates his due process and free speech rights and is an

unconstitutional Bill of Attainder. He also challenges the

Air Force’s decision under the Administrative Procedure

Act (“APA”). Like two other circuits that have recently

considered similar challenges, we find no constitutional

infirmity in the statute and military policy. We also find

no APA infirmity in this decision and therefore affirm.

I. THE POLICY

Prior to 1993, Department of Defense (“DOD”) Direc-

tives and regulations of the individual services excluded

from military service any person “who engages in,

desires to engage in, or intends to engage in homosexual

acts.” DOD Dir. No. 1332.14 (1981), 32 C.F.R. Part 41,

App. A (1992). Though the issue never reached this court,

other circuits rejected numerous constitutional challenges

to this long-standing policy. See Steffan v. Perry, 41 F.3d

677 (D.C. Cir. 1994) (en banc); Meinhold v. Department of

Defense, 34 F.3d 1469 (9th Cir. 1994); Ben-Shalom v, Marsh,

881 F.2d 454, 456 (7th Cir. 1989), cert. denied, 494 U.S. 1004

(1990); Woodward v. United States, 871 F.2d 1068 (Fed. Cir.

1989), cert. denied, 494 U.S. 1003 (1990); Rich v. Secretary of

the Army, 735 F.2d 1220 (10th Cir. 1984).

In early 1993, President Clinton called for a reevaluation

of the policy. The Senate and House Armed Services Com-

mittees held extensive hearings which included testimony by

sociologists, gay rights activists, military personnel experts,

acini icicle

App. 3

members of the armed forces in all ranks, and private citi-

zens and organizations.2

DOD also intensively studied the issue. See, e.g., Sen.

Comm. Hr’gs at 707-08 (statement of General Colin Pow-

ell). On July 19, 1993, the Secretary of Defense published

a new policy regarding homosexuals and the military. At

the core of that policy was the “Don’t Ask, Don’t Tell”

concept: “Applicants for military service will not be

asked or required to reveal their sexual orientation. . . .

Service-members will be separated for homosexual con-

duct.” “A statement by a servicemember that he or she is

homosexual or bisexual creates a rebuttable presumption

that the servicemember is engaging in homosexual acts or

has a propensity or intent to do so.” Policy on Homosexual

Conduct in the Armed Forces, 1 Pub. Papers 1111 (July 19,

1993). General Powell deemed this policy “a choice which

is in the best interests of the Armed Forces and the best

interests of the American people.” Sen. Comm. Hr’gs at

709.

On November 30, 1993, after further review and

debate, Congress enacted 10 U.S.C. § 654.3

2 See, S. Rep. No. 112, 103d Cong., 1st Sess. 268-70 (1993);

Hearings on the Dept, of Defense Policy Excluding Homosexuals

From Service in the Armed Forces, 139 Cong. Rec. $755-01 (daily

ed. Jan. 27, 1993) (statement of Sen. Nunn); Policy Concerning

Homosexuality in the Armed Forces: Hearings Before the Sen. Comm.

on Armed Services, 103d Cong., 2d Sess. (1993) [“Sen. Comm.

Hr’gs”]; Policy Implications of Lifting the Ban on Homosexuals

in the Military: Hearings Before the House Comm. on Armed

Services, 103d Cong.,1st Sess. (1993).

3 National Defense Authorization Act for Fiscal Year 1994,

Pub. L. No. 103-160, § 571, 107 Stat. 1670-73.

App. 4

That statute begins by reciting essential congres-

sional findings, including:

(8) Military life is fundamentally different

from civilian life in that -

(A) the extraordinary responsibilities

of the armed forces, the unique conditions

of military service, and the critical role of

unit cohesion, require that the military com-

munity, while subject to civilian control,

exist a specialized society; and

(B) the military society is charac-

terized by its own laws, rules, customs, and

traditions, including numerous restrictions

on personal behavior, that would not be

acceptable in civilian society.

a * »

(12) the worldwide deployment of United

States military forces . . . and the potential for

involvement of the armed forces in actual com-

bat routinely make it necessary for members of

the armed forces involuntarily to accept living

conditions and working conditions that are

often spartan, primitive, and characterized by

forced intimacy with little or no privacy.

(13) The prohibition against homosexual!

conduct is a long-standing element of military

law that continues to be necessary in the unique

circumstances of military service.

* * *

(15) the presence in the armed forces of

persons who demonstrate a propensity or intent

to engage in homosexual acts would create an

unacceptable risk to the high standards of

App. 5

morale, good order and discipline, and unit

cohesion that are the essence of military capa-

bility.

10 U.S.C. § 654(a). The statute defines “homosexual” as a

person of either gender “who engages in, attempts to

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

engage in homosexual acts.” “Homosexual acts” are

defined as “bodily contact . . . for the purpose of gratify-

ing sexual desires.” §§ 654(f)(1) & (3)(A).

In the provision at issue on this appeal, the statute

provides that a servicemember [sic] “shall be separated

from the armed forces” if there is a finding “[t]hat 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.” § 654(b)(2). In other words, to avoid

discharge, a servicemember who has declared, “I am a

homosexual,” must prove that he or she is not a homosex-

ual as that term is defined in the statute.

In February 1994, the military implemented § 654.

DOD Directive 1332.30 governs commissioned officers

such as Richenberg. The relevant portion of this lengthy

Directive provides:

C. HOMOSEXUAL CONDUCT

Homosexual conduct is grounds for separa-

tion from the Military Services under the terms

set forth in paragraph C.1.b., below. . _ A

member’s sexual orientation is considered a per-

sonal and private matter, and is not a bar to

App. 6

continued service under this section unless

manifested by homosexual conduct.

* * *

1. b....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. The officer shall be advised

of this presumption and given the opportunity

to rebut the presumption by presenting evi-

dence demonstrating that he or she does not

engage in, attempt to engage in, have a propen-

sity to engage in or intend to engage in homo-

sexual 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.

DOD Dir. 1332.30, Encl. 2, { C & C.1.b., at pp. 2-1, 2-2. The

Air Force amended its Administrative Discharge Pro-

cedures, AFR 36-2, to conform with § 654 and Directive

1332.30.

II. RICHENBERG’S DISCHARGE

Richenberg entered the Air Force in 1985. After

reaching, the rank of Captain and serving in the Gulf War,

he began training for the Foreign Military Sales program

in Saudi Arabia. In April 1993, he requested separation

from the Air Force. The Air Force denied this request

because his training was nearly complete. Richenberg

then informed his commanding officer that he is homo-

sexual, acknowledging that “I am forcing you to take

App. 7

actions which may ultimately result in my discharge.”

The Air Force canceled his Saudi Arabian mission, reas-

signed him to Offutt Air Force Base in Nebraska, and

initiated discharge proceedings.

After a December 1993 hearing, a Board of Inquiry

recommended Richenberg’s discharge. The Secretary of

the Air Force ordered reconsideration under the new

“Don’t Ask, Don’t tell” policy. After a second hearing in

June 1994, the Board of Inquiry recommended separation

with an honorable discharge. An Air Force Legal Review

concluded that the Board’s “findings support discharge

for making homosexual statements and failing to rebut

the presumption that the respondent has a propensity to

engage in homosexual acts.” The Air Force Board of

Review agreed. On August 28, 1995, the Secretary of the

Air Force ordered Richenberg’s honorable discharge.

Richenberg then commenced this action. The district

court granted the defendants’ motion for summary judg-

ment, rejecting Richenberg’s constitutional challenge and

concluding that substantial evidence supports the

agency’s decision. Richenberg v. Perry, 909 F. Supp. 1303

(D. Neb. 1995). Following Richenberg’s appeal, we

declined to enter an injunction preventing discharge dur-

ing the appeal. Richenberg v. Perry, 73 F.3d 172 (8th Cir.

1995). We now consider the merits of that appeal. The

Fourth Circuit upheld the policy’s constitutionality in

Thomasson v. Perry, 80 F.3d 915 (4th Cir. 1996) (en banc),

petition for cert. filed, 65 U.S.L.W. 3033 (U.S. July 1, 1996)

(No. 96-1). The Second Circuit reversed a district court

decision that the rebuttable presumption in § 654(b)(2) is

unconstitutional and remanded for consideration of the

constitutionality of § 654(b)(1) in-Able v. United States,

App. 8

Nos. 95-6111 & 95-6141, 1996 WL 391210 (2nd Cir. July 1,

1996).

III. DUE PROCESS

Richenberg argues that 10 U.S.C. § 654(b)(2) and

DOD Directive 1332.30 violate the Fifth Amendment's

Due Process Clause, and particularly its equal protection

component, by adopting an irrational and “constitu-

tionally repugnant” presumption that discriminates

against homosexuals on the basis of their “status.”4

Applying rational basis review, the district court held

that the exclusion of those with a propensity or intent to

engage in homosexual acts furthers the legitimate gov-

ernment purpose of protecting “unit cohesion, morale,

good order and discipline and military readiness”; that

the military can rationally infer such propensity or intent

from a servicemember’s declaration of homosexuality;

and therefore that the “rebuttable presumption is a ratio-

nal means of furthering the military’s legitimate pur-

pose.” 909 F. Supp. at 1312-13._Richenberg argues that we

should apply heightened scrutiny because homosexuality

is a suspect classification. We reject this contention for the

4 Conversely, the Family Research Council as amicus curiae

argues that DOD’s presumption violates the plain language of

§ 654 because the statute prohibits all homosexuals from serving

in the military. See Thomasson, 80 F.3d at 939 (Luttig, J.,

concurring). We agree with the Second Circuit that the word

“propensity” in § 654 is ambiguous and that DOD has

permissibly construed the ambiguous statute. See Able, 1996 WL

391210 at 19.

2s i AA ld Mich A cs Oath don era iat A

App. 9

reasons stated by the Fourth Circuit in Thomasson, 80 F.3d

at 927-28.5

In conducting rational basis review, we presume that

the statute and implementing Directive are valid, placing

the burden on Richenberg to show that they are not

rationally related to any legitimate government Purpose.

See Heller v. Doe, 509 US. 312, 319-20 (1993). Our role is

not “to judge the wisdom, fairness, or logic of legislative

choices.” FCC v. Beach Communication, Inc., 508 U.S. 307,

313 (1993). Substantive due process review is especially

deferential when military policy is challenged. The Con-

stitution expressly grants responsibility for military

affairs to Congress, art. I, § 8, and the President, art. II,

§ 2, not the judiciary. See United States v. O’Brien, 391 U.S.

367, 377 (1968). When action under this authority is chal-

lenged, “judicial deference . . . is at its apogee.” Rostker v.

Goldberg, 453 U.S. 57, 70 (1981). Moreover, at a more—

practical level, deference to the considered professional

judgment of military authorities is appropriate because:

it is difficult to conceive of an area of govern-

mental activity in which the courts have less

competence. The complex, subtle, and profes-

sional decisions as to the composition, training,

equipping, and control of a military force are

> Five other circuits declined to give heightened scrutiny to

the military’s prior policies regarding homosexuals. See Steffan,

41 F.3d at 684; Meinhold, 34 F.3d at 1478; Ben-Shalom, 881 F.2d at

464; Woodward, 871 F.2d at 1076; Rich, 735 F.2d at 1229. The

Supreme Court applied rational basis review in reviewing a

State constitutional amendment adversely affecting

homosexuals in Romer v. Evans, 116 S. Ct. 1620, 1627 (1996). See

also Bowers v. Hardwick, 478 U.S. 186, 195-96 (1986); Cleburne v.

Cleburne Living Ctr., Inc., 473 U.S. 432, 441 (1985).

App. 10

essentially professional military judgments, sub-

ject always to civilian control of the Legislative

and Executive Branches. The ultimate respon-

sibility for these decisions is appropriately

vested in branches of the government which are

periodically subject to electoral accountability. It

is this power of oversight and control of military

force by elected representatives and officials

which underlies our entire constitutional sys-

tem.

Gilligan v. Morgan, 413 U.S. 1, 12 (1973) (emphasis in

original). See also Goldman v. Weinberger, 475 U.S. 503, 508

(1986). Accordingly, “policies that might not pass consti-

tutional muster if imposed upon a civilian population

will be upheld in the military setting.” Ben-Shalom, 881

F.2d at 461.°

Richenberg argues that the “Don’t Ask, Don’t Tell

policy” by which he presumably means § 654 as well as

the DOD Directive - cannot be justified by any rationale

other than an irrational catering to prejudice against and

hatred of homosexuals. The flaw in this argument is its

faulty premise. Richenberg asserts that the military policy

is aimed at those with homosexual orientation or status.

It is not. The statute carefully defines “homosexual” for

these purposes as limited to those who commit, attempt

to commit, intend to commit, or have a propensity to

commit unacceptable sexual acts. See § 654(f)(1). The

DOD Directive explicitly states that the military will not

6 The military policy at issue is entitled to even more

deferential review because it is the product of extensive study,

debate, and compromise by Congress and the President. See

Rostker, 453 U.S. at 71; Thomasson, 80 F.3d at 927.

—

App. 11

exclude servicemembers for their homosexual thoughts,

opinions, fantasies, or orientation. Thus, we reject Rich-

enberg’s strident attack on the military for catering to

prejudice against those with homosexual orientation.”

The statute defines conduct that Congress has deter-

mined is inappropriate in the military, and we must

review it on that basis. See 10 U.S.C. § 654(a)(13),(15),

quoted at p. 4-5, supra.

We join six other circuits in concluding that the mili-

tary may exclude those who engage in homosexual acts

as defined in § 654(f)(3)(A). See Thomasson, 80 F.3d at 929

and cases cited. Military life requires servicemembers to

sacrifice privacy:

[Servicemembers] are required to live in com-

munal settings that force intimacy and provide

little privacy. It may be hard to contemplate

spending 60 continuous days in the close con-

fines of a submarine; sleeping in a foxhole with

half a dozen other people; 125 people all living

and sleeping in the same 40 by 50 foot, open

berthing area, but this is exactly what we ask

our young people to do.

S. Rep. 112 at 277 (statement of Gen. Powell). Military

leaders have determined that excluding those with a pro-

pensity to engage in homosexual acts, like providing

” For example, Richenberg asserts that “this is the same

disgraceful way that African-Americans were treated” by the

military in World War II. General Powell testified: “Skin color is

a benign, non-behavioral characteristic. Sexual orientation is

perhaps the most profound of human characteristics.

Comparison of the two is a convenient but invalid argument.” S.

Rep. 112 at 281-82.

App. 12

separate housing for men and women, reduces sexual

tensions that would jeopardize unit cohesion, the cor-

nerstone of an effective military. Id. at 275-82; see Sen.

Comm. Hr’gs at 595 (“in my 40 years of army service in

three different wars I have become convinced that [unit

cohesion] is the single most important factor in a unit’s

ability to succeed on the battle field”) (statement of Gen.

H. Norman Schwarzkopf).

Given these rational concerns, Congress and the Pres-

ident may rationally exclude those with a propensity or

intent to engage in homosexual acts. “It is appropriate for

the armed forces to separate the individual from military

service without waiting until the individual’s propensity

or intent to violate (military rules] ripens into specific

conduct prejudicial to good order and discipline.” S. Rep.

112 at 294; see Thomasson, 80 F.3d at 929. See also New York

City Transit Auth. v. Beazer, 440 U.S. 568, 589-94 (1979)

(employer may deny jobs to former drug abusers to avoid

risk of likely future conduct); Massachusetts Bd. of Retire-

ment v. Murgia, 427 U.S. 307, 314-15 (1976) (State may

retire police officers at age fifty to avoid dangers created

by physically unprepared officers).

That brings us to Richenberg’s contention that the

DOD Directive’s presumption fails rational basis review

because it is irrational to presume that self-declared

homosexuals have a propensity to commit homosexual

acts. However, it is rational to assume that both homosex-

uals and heterosexuals “are likely to act in accordance

with their sexual drives.” Steffan, 41 F.3d at 692. For

example, Richenberg acknowledged at the Board of

Inquiry hearing that his homosexuality includes a sexual

attraction to men. And the Lambda Legal Defense and

App. 13

Education Fund declared in an amicus brief to the

Supreme Court in Bowers v. Hardwick, “for gay people,

sexuality and their sexual orientation play an especially

central role in the definition of self... . [Sodomy laws]

impose an added burden on gay people, blocking their

sense of self as well as their sexual fulfillment.” S. Rep.

112, at 283. Thus, we agree with the Fourth Circuit that

“[t]he presumption that declared homosexuals have a

propensity or intent to engage in homosexual acts cer-

tainly has a rational factual basis.” Thomasson, 80 F.3d at

930. See also Watkins v. United States Army, 847 F.2d 1329,

1361 n.19 (9th Cir. 1988) (Reinhardt, J., dissenting) (“To

pretend that homosexuality . . . is unrelated to sexual

conduct borders on the absurd”), opinion withdrawn, 875

F.2d 699 (1989) (en banc).

Finally, Richenberg argues that the presumption

deprives him of due process because it is effectively

irrebuttable. Once again, his argument ignores the statu-

tory language. Congress perceived that “homosexual” is a

potentially ambiguous term. Therefore, some persons

who declare that they are “homosexual” or have a

“homosexual orientation” may not fall within the statu-

tory definition of persons likely to engage in homosexual

conduct that is inconsistent with service in the military.

The presumption in § 654(b)(2) and the DOD Directive

allows an individual who has declared his or her homo-

sexuality to prove that the statement merely reflects a

permissible orientation. This is not a de facto irrebuttable

presumption; indeed, the district court found that seven

servicemembers have successfully rebutted it. 909 F.

Supp. at 1313. Thus, even if an irrebuttable presumption

App. 14

would fail rational basis review (an issue we need not

address), § 654(b)(2) and the Directive do not.

IV. FREEDOM OF SPEECH

Richenberg argues that the Air Force violates First

Amendment rights by targeting those who speak about

their homosexuality and discharging them for “mere

statements.” Under the prior policy, the military asked

applicants if they were homosexual and excluded those

who answered affirmatively. The new policy is less

restrictive — the military now ignores the issue unless a

servicemember affirmatively evidences a propensity to

engage in conduct inconsistent with military service.

We conclude that Richenberg’s First Amendment

argument is without merit. As discussed above, § 654 and

the DOD Directive do not target mere status or speech.

The policy seeks to identify and exclude those who are

likely to engage in homosexual acts, as defined in

§ 654(f)(3). To this end, the policy provides that a ser-

vicemember’s statement that he or she is a homosexual

evidences that propensity. “The First Amend-

ment . . . does not prohibit the evidentiary use of speech

to establish the elements of a crime or to prove motive or

intent.” Wisconsin v. Mitchell, 508 U.S. 476, 489 (1993). See

also Wayte v. United States, 470 U.S. 598, 610-14- (1985)

(“passive enforcement” of criminal draft registration law

does not violate the First Amendment); United States v.

Dinwiddie, 76 F.3d 913, 926 n.10 (8th Cir. 1996). We thus

agree with the Fourth Circuit that

[t]here is no constitutional impediment, there-

fore, to the use of speech as relevant evidence of

Bawitim

App. 15

facts that may furnish a permissible basis for

separation from military service. No First

Amendment concern would arise, for instance,

from the discharge of service members for

declaring that they would refuse to follow

orders, or that they were addicted to controlled

substances.

Thomasson, 80 F.3d at 931. Accord Able, 1996 WL 391210 at

17 (“This evidentiary use substantially furthers the gov-

ernment’s interest because . . . there is a correlation

between those who state that they are homosexual and

those who engage in homosexual acts.”); Ben-Shalom, 881

F.2d at 462.

V. APA REVIEW

Richenberg argues that the Secretary’s decision was

arbitrary and capricious, contrary to law, and not sup-

ported by substantial evidence - the standards for judi-

cial review under the APA, 5 U.S.C. § 706 — because his

statements of homosexuality demonstrate no “propensity

or intent to engage in homosexual acts,” and therefore the

rebuttable presumption “was never properly triggered.”

He notes that, at the second Board of Inquiry hearing, he

presented overwhelming evidence regarding his past

conduct, character, and credibility, and the nature and

circumstances of his statements, “all of which demon-

strate conclusively that he has no such propensity.”

Assuming that a military discharge decision is

reviewable under the APA,® that review “must be

® Richenberg cites no authority for the proposition that

Congress has authorized APA review of decisions to discharge

App. 16

extremely deferential because of the confluence of the

narrow scope of review under the APA and the military

setting.” Henry v. Department of Navy, 77 F.3d 271, 272 (8th

Cir. 1996). Richenberg’s contention — that his statements

did not trigger the presumption - is contrary to the plain

meaning of § 654(b)(2) as construed in the Directive. Any

statement to the effect that a servicemember is a homo-

sexual “triggers” the presumption, that is, imposes a

burden to rebut the presumption if discharge proceedings

are commenced.

Charitably reading Richenberg’s brief as also arguing

that he in fact rebutted the presumption, we agree with

the district court that substantial evidence supports the

Secretary’s decision to the contrary. At the Board of

Inquiry hearing, Richenberg stated that he is homosexual

but does not intend to engage in prohibited homosexual

acts. However, on cross-examination, he admitted he is

sexually attracted to men. When asked whether, if the

right person came along, he “would not be opposed to

having sex with them (sic),” he answered, “I can’t say

that I’ve entirely accepted that yet.” In addition, he

answered that he did not know whether he would marry

a man if it were legal to do so. None of this is particularly

inflammatory, and we agree that Richenberg submitted

strong evidence of fine character and an excellent mili-

tary career. But “substantial evidence is something less

an officer from military service. Remarkably, the Secretary

simply ignores the issue. We suspect it is a doubtful proposition.

See Webster v. Doe, 486 U.S. 592 (1988); Chappell v. Wallace, 462

U.S. 296 (1983). But the government has not argued the point, so

we do not consider it. See Air Courier Conference v. American

Postal Workers Union, AFL-CIO, 498 U.S. 517, 522-23 (1991).

App. 17

than the weight of the evidence, and the possibility of

drawing two inconsistent conclusions does not indicate

that substantial evidence fails to support an agency’s

findings.” Henry, 77 F.3d at 273. The Board of Inquiry’s

recommendation was based upon its assessment of Rich-

enberg’s statement that he has no intent or propensity to

commit homosexual acts in light of his equivocal answers

on cross examination. That type of credibility determina-

tion is normally left to the agency’s discretion, see Craw-

ford v. Runyon, 37 F.3d 1338, 1341 (8th Cir. 1994), and

Richenberg does not suggest we are dealing with abnor-

mal agency fact-finding.

VI. CONCLUSION

We have considered Richenberg’s bill of attainder

claim and conclude it is without merit. See Selective Serv.

Sys. v. Minnesota Pub. Int. Res. Group, 468 U.S. 841 (1984);

Ambassador Books & Video, Inc. v. Little Rock, 20 F.3d 858,

865 (8th Cir.), cert, denied, 115 S. Ct. 186 (1994). Accord-

ingly, for the foregoing reasons, the judgment of the

district court is affirmed.

RICHARD S. ARNOLD, Chief Judge, dissenting.

The military may no longer discharge homosexual

servicemembers simply because they are homosexual.

Instead, federal law authorizes the dismissal of homosex-

ual servicemembers only if they engage or intend to

engage in prohibited homosexual conduct, or if they

demonstrate a propensity to do so. The Statute, however,

blurs the line between status and conduct by making a

App. 18

servicemember’s admission that he or she is a homosex-

ual sufficient grounds for presuming that the ser-

vicemember is likely to or intends to engage in prohibited

conduct. If this presumption were irrebuttable, the statu-

tory scheme would raise serious First Amendment prob-

lems. Accordingly, it is our job to review the record with

great care to ensure that Captain Richenberg had a proper

opportunity to rebut the presumption. After reviewing

the evidence submitted to the Board of Inquiry, it is my

view that Captain Richenberg met his burden and should

not have been discharged.

The First Amendment prohibits the government from

penalizing people because of their thoughts and feelings.

Indeed, “[o]ur whole constitutional heritage rebels at the

thought of giving government the power to control men’s

minds.” Stanley v. Georgia, 394 U.S. 557, 565 (1969). Cap-

tain Richenberg admitted that he is a homosexual but also

stated under oath that he did not intend to violate mili-

tary law by acting upon those feelings. To assume auto-

matically that he would is to disadvantage him simply for

who he is and not for what he has done or will do. The

First Amendment does not allow the government to make

this assumption without at least affording Captain Rich-

enberg some realistic opportunity to show that the

assumption is erroneous in his particular case.

An irrebuttable presumption would also violate the

First Amendment by penalizing servicemembers solely

for the content of their speech. It is one thing to use a

person’s speech as evidence to help establish an element

of some offense. It would be quite another matter, how-

ever, to presume conclusively from Captain Richenberg’s

expression that he intended to or was likely to violate

ee a a a ae

PD LIE OE Ds a te ar eat

a ere

en ee ee eS ee

See. LESS

App. 19

military regulations when he has expressly disavowed

such an intent. Such a scheme would target only speech

and would thus violate the First Amendment absent some

compelling justification for the restriction.

The propensity presumption is supposed to be

rebuttable. See Brief of Appellees 40.9 Given that exces-

sive deference to the presumption by the Board of Inquiry

would violate the First Amendment, I would review the

record de novo to ensure that the Board of Inquiry gave

Captain Richenberg a fair chance to rebut the presump-

tion. See Bose Corp. v. Consumers Union, 466 U.S. 485, 501

(1984) (in First Amendment cases, appellate courts should

review de novo questions of fact that are tried to a judge

or jury).

It is undisputed that Captain Richenberg told several

people that he was a homosexual. He swore, however,

that he had no intention of acting upon his orientation in

violation of military regulations and that he was “very

capable” of abstaining from prohibited conduct. Appel-

lant’s App. 296-97. The record presents many reasons to

believe him and insufficient reason to doubt him. Captain

Richenberg appears to have been an outstanding Air

9 In addition to pointing out that the presumption is

rebuttable, the government invokes the customary deference

that courts give to military judgments on the need to restrict

certain types of speech. See Brief of Appellees 43. The

government, however, does not attempt to justify an

irrebuttable presumption, and this dissent does not challenge

the validity of a properly applied rebuttable presumption.

Moreover, deference to military judgment does not extend to the

application of law to fact, in an area in which a military tribunal

carries no special expertise.

App. 20

Force officer. His Officer Performance Reports (OPRS) are

full of praise for his professionalism, dedication, and

leadership abilities, and he received many medals over

the course of his Air Force career. A characteristic report

described him as “the most professional and highly moti-

vated officer I have had on my crew.” Id. at 375. Another

called him the reporter’s “most professional officer!” Id.

at 369. He flew 25 combat missions in Operation Desert

Storm. Brief of Appellant 12.

Four fellow officers and friends also testified on Cap-

tain Richenberg’s behalf at the Board of Inquiry, praising

his abilities and performance. All four attested to his

honesty, integrity, and discipline, as well as to his dedica-

tion and loyalty to the Air Force. One of these officers,

Captain Yaphe, testified that he had told a fellow officer a

month before the hearing that he had no reason to believe

that Captain Richenberg would not abstain from homo-

sexual conduct if he said he would. Appellant’s App. 263.

The government introduced no evidence that called

any of this testimony into question. Nor did the Board of

Inquiry explain its finding that Captain Richenberg had

failed to rebut the presumption. In fact, the Board of

Inquiry devoted only a single line to the issue. (“The

Board finds that the respondent does have a propensity to

engage in homosexual acts.”) Id. at 451. As things stand,

we do not even know whether the Board found that

Captain Richenberg intended to violate military regula-

tions, that he was likely to do so, or both. Without an

explanation we are forced to rely upon those sources that

are available to us, without the aid, for example, of the

Board’s evaluation of Captain Richenberg’s demeanor at

the hearing. It may be that the Board simply did not find

App. 21

Captain Richenberg to be credible. If so, it should say so

and explain why, for it may also be that the Board imper-

missibly based its decision upon an assumption that

homosexuals in general will not be able to abstain from

prohibited conduct. Cf. Hall v. Chater, 62 F.3d 220 (8th Cir.

1995) (holding that ALJs who reject disability claimants’

subjective complaints of pain must make express cred-

ibility finding and give reasons for disbelieving the testi-

mony).

The Air Force Board of Review provided more expla-

nation for the decision, but its reasoning is no more

convincing. It relied upon Captain Richenberg’s admis-

sion that he was physically attracted to men. Appellant's

App. 458. This admission adds nothing to his admission

of homosexuality. Were it enough to justify the Board’s

finding, the presumption would be effectively irrebutt-

able and, therefore, unconstitutional].

The Board of Review also discounted the testimony

of Captain Richenberg’s character witnesses because

“none of [his] witnesses was asked about (his] behavior

or to opine as to his propensity to commit homosexual

acts.” Ibid. Character witnesses in such proceedings will

in general be able to testify, as Captain Yaphe did, only to

a servicemember’s sense of honor, duty, and discipline.

Even if they cannot “opine” specifically as to his sexual

propensities, they can say whether he is the kind of man

who does what he promises to do. The record establishes

that Captain Richenberg is that kind of man.

I would reverse the judgment of the District Court

and remand with directions to grant Captain Richen-

berg’s motion for summary judgment. In the alternative, I

App. 22

would remand the case to the District Court with instruc-

tions for it to remand to the Board of Inquiry for addi-

tional explanation of its decision. I express no view on the

large constitutional questions discussed in this Court's

opinion.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIR-

CUIT.

App. 23

APPENDIX B

IN THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEBRASKA

RICHARD F. RICHENBERG, JR.,

—— 8:CV95-22393

is ORDER AND

WILLIAM J. PERRY, Secretary of JUDGMENT

Defense, in his official capacity;

SHEILA WIDNALL, Secretary of

the Department of the Air Force,

in her official capacity,

Defendants.

eee ee ee ee ee ee ee ee ee Se

Pursuant to the memorandum opinion entered herein

this date,

IT IS ORDERED:

1) Plaintiff’s motion for summary judgment (Filing

No. 31) is denied;

2) Defendants’ motion for summary judgment (Fil-

ing No. 32) is granted; plaintiff's complaint is dismissed;

3) The temporary restraining order entered Septem-

ber 8, 1995 (Filing No. 14) is dissolved.

DATED this 11th day of December, 1995.

BY THE COURT:

/s/

LYLE E. STROM, Senior Judge

United States District Court

App. 24

APPENDIX C

IN THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEBRASKA

RICHARD F. RICHENBERG, JR.,

aaa 8:CV95-22393

a MEMORANDUM

WILLIAM J. PERRY, Secretary of OPINION

)

Defense, in his official capacity; )

SHEILA WIDNALL, Secretary of ?

the Department of the Air Force, )

in her official capacity,

)

Defendants.

This matter is before the Court on the parties’ cross

motions for summary judgment (Filing Nos. 31 and 32).

Plaintiff Richard F. Richenberg, Jr., is a Captain in the

United States Air Force stationed at Offutt Air Force Base

(“Offutt AFB”) near Omaha, Nebraska. Defendant Wil-

liam J. Perry is the Secretary of the Defense and defen-

dant Sheila Widnall is the Secretary of the Department of

the Air Force. Plaintiff filed this action requesting perma-

nent injunctive and declaratory relief prohibiting defen-

dants from discharging him from the Air Force as a result

of his statement that he is a homosexual. Plaintiff chal-

lenges the government's policy regarding homosexuals in

the military primarily on the grounds that the policy on

its face and as applied to him, violates his First Amend-

ment freedom of speech and denies him equal protection

of the laws guaranteed by the Fifth and Fourteenth

Amendments. Plaintiff also alleges that the Air Force

App. 25

discharge proceedings violated the Administrative Pro-

cedures Act. Finally, plaintiff alleges that the policy is

unconstitutional as a Bill of Attainder. The Court heard

oral arguments on this matter on November 6, 1995. After

careful consideration of the motions, the briefs and the

applicable law, the Court makes the following findings

and conclusions.

THE POLICY

On January 29, 1993, President Clinton directed Les

Aspin, Secretary of Defense at the time, to reevaluate the

Department of Defense’s (“DOD”) policy regarding

homosexuals in the military. Secretary Aspin commis-

sioned two independent studies to evaluate the DOD’s

existing policy and to consider new policy options.

Between March and July, 1993, the Senate and House

Armed Services Committees held extensive public hear-

ings on the matter. Pursuant to President Clinton’s order,

Secretary Aspin issued a new directive regarding homo-

sexuals in the military on July 19, 1993. The Senate and

House Armed Services Committees conducted further

hearings and recommended that Congress enact the pol-

icy as contained in the July 19 directive. In November

1993, Congress enacted the policy as § 571 of the National

Defense Authorization Act for Fiscal Year 1994, Pub. L.

No. 103-160, 107 Stat. 1670-73 (codified at 10 U.S.C.

§ 654). President Clinton signed the policy into law on

November 30, 1993.

In enacting the “Policy concerning homosexuality in

the armed forces” Congress made extensive findings,

including the finding that:

App. 26

(8) Military life is fundamentally different

from civilian life in that -

(A) the extraordinary responsibilities

of the armed forces, the unique conditions

of military service, and the critical role of

unit cohesion, require that the military com-

munity, while subject to civilian control,

exist as a specialized society; and

(B) the military society is charac-

terized by its own laws, rules, customs, and

traditions, including numerous restrictions

on personal behavior, that would not be

acceptable in civilian society.

10 U.S.C. § 654(a). Congress also found that:

(15) The presence in the armed forces of per-

sons who demonstrate a propensity or intent to

engage in 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 capa-

bility.

Id. The policy provides that a service member shall be

separated from the armed forces if, pursuant to the regu-

lations, one or more of the following is found:

(1) That the member has engaged in,

attempted to engage in, or solicited another to

engage in a homosexual act or 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

App. 27

engages in, attempts to engage in, has a propen-

| sity to engage in, or intends to engage in homo-

sexual 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).

. On December 21, 1993, the DOD issued Directive

| 1332.30, titled “Separation of Regular Commissioned

Officers” to implement the policy. The Directive defines

“homosexual conduct” to include “a homosexual act, a

statement by the Service member that demonstrates a

propensity or intent to engage in homosexual acts, or a

homosexual marriage or attempted marriage.” Directive

1332.30 at 1-1. The Directive further provides:

C. HOMOSEXUAL CONDUCT

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 homo-

¥ sexual 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.

Id. at 2-1. Section C.l. reiterates the three grounds for

separation outlined by 10 U.S.C. § 654. Regarding the

“statement” grounds, however, the Directive elaborates

that:

App. 28

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 propen-

sity to engage in, or intends to engage in homo-

sexual acts. The officer shall be advised of this

presumption and given the opportunity to rebut

the presumption by presenting evidence demon-

strating that he or she does not engage in,

attempt to engage in, have a propensity to

engage in or intend 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.

Directive 1332.30 at 2-2. The Directive further provides

that in determining whether an officer has successfully

rebutted the presumption, the military may consider: (1)

whether the officer has engaged in homosexual acts; (2)

the officer’s credibility; (3) testimony from others regard-

ing the officer’s past conduct, character and credibility;

(4) the nature and circumstances of the of the officer’s

statement; and (5) any other evidence relevant to whether

the officer is likely to engage in homosexual acts. Id. In

conformity with Directive 1332.30, the Department of the

Air Force amended its regulation AFR 36-2 regarding

officer administrative discharge procedures. The perti-

nent portion of AFR 36-2 repeats much of the language

contained in DOD Directive 1332.30, and together, shall

be referred to as the “regulations.” Section 654 and the

regulations constitute the “policy” under which defen-

dants seek to discharge plaintiff.

LETTER

App. 29

FACTS

Since entering the Air Force in April 1985, plaintiff

has served with distinction as an Electronic Warfare Offi-

cer (“EWO”). After serving a three year tour of duty at

Eielson Air Force Base in Alaska, plaintiff was transferred

to Offutt Air Force Base in 1989. After serving in the Gulf

War, plaintiff returned to Offutt AFB and was subse-

quently selected for the Foreign Military Sales (“FMS”)

program to train and support personnel in Saudi Arabia.

Prior to going to Saudi Arabia, plaintiff was sent to Texas

for FMS training. Towards the end of his training in Texas

in April, 1993, plaintiff requested that his assignment to

Saudi Arabia be canceled and that he be separated from

the Air Force. This request was denied. In May, 1993,

plaintiff faxed a letter to Lieutenant Colonel David CG.

Bell, his commanding officer at Offutt AFB, informing Lt.

Col. Bell that he is homosexual. Lt. Col. Bell showed the

letter to Lt. Col. David Trask who was about to assume

Lt. Col. Bell’s duties. At about the same time, plaintiff

told a few friends ahd fellow officers that he was homo-

sexual. (Pl’s Br. at 20). The Air Force canceled plaintiff's

assignment to Saudi Arabia and reassigned him to Offutt

AFB.

As a result of his letter and statements, the Air Force

initiated proceedings to discharge plaintiff. A Board of

Inquiry conducted a hearing on the matter, and on

December 2, 1993, recommended that plaintiff be dis-

charged. Before the Air Force took final action on that

recommendation, however, the Secretary directed that the

case be reconsidered under the recently enacted policy

regarding homosexuals in the military. The Air Force

reinitiated discharge proceedings in April, 1994, and a

App. 30

second Board of Inquiry conducted a hearing in June,

1994. At the hearing, plaintiff read a sworn statement and

testified that he had not in the past and would not in the

future engage in any prohibited conduct. On June 21,

1994, the Board of Inquiry recommended that plaintiff be

discharged. Following the Board of Inquiry, the Air Force

processed plaintiff’s case through several procedural

steps, including a Board of Review. At each stage, it was

recommended that plaintiff be discharged. On August 28,

1995, the Secretary of the Air Force ordered that plaintiff

be removed from active duty and issued an honorable

discharge certificate.

The Air Force scheduled plaintiff’s discharge for Sep-

tember 8, 1995. On September 5, 1995, plaintiff filed with

this Court an amended-verified complaint and a motion

for temporary restraining order (Filing Nos. 4 and 5). On

September 7, 1995, the Court conducted a hearing on the

temporary restraining order. On September 8, 1995, the

Court issued an order (Filing No. 14) and memorandum

opinion (Filing No. 15) granting plaintiff’s motion for

TRO and setting an expedited schedule for cross motions

for summary judgment which the Court now considers.

STANDARD OF REVIEW

Rule 56(c) of the Federal Rules of Civil Procedure

provides that summary judgment “shall be rendered

forthwith if the pleadings, depositions, answers to inter-

rogatories and admissions on file, together with the affi-

davits, 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.” Summary judgment will

App. 31

not lie if the evidence is such that a reasonable jury could

return a verdict for the nonmoving party. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In order for

the moving party to prevail, it must demonstrate to the

Court that “there is no genuine issue as to any material

fact and that the moving party is entitled to a judgment

as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317,

323 (1986). A fact is material only when its resolution

affects the outcome of the case. Anderson, 477 US. at 248.

A material issue is genuine if it has any real basis in the

record. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 586-87 (1986). On a motion for summary

judgment, the Court must view all evidence and infer-

ences in the light most favorable to the nonmoving party.

Anderson, 477 U.S. at 250. However, the nonmoving party

may not rest on the mere denials or allegations in the

pleadings, but must set forth specific facts sufficient to

raise a genuine issue for trial. Celotex, 477 U.S. at 324.

And if the plaintiff cannot support each essential element

of his claim, summary judgment must be granted because

a complete failure of proof regarding an essential element

necessarily renders other facts immaterial. Id. at 322-23.

The Court reviews the parties’ cross-motions for sum-

mary judgment in light of the foregoing standard.

DISCUSSION

(a) General Principles

Before addressing the merits of plaintiff’s case, the

Court must outline several principles which apply gener-

ally to plaintiff’s constitutional claims. It is the sworn

duty of federal courts to determine whether a statutory

App. 32

restriction unconstitutionally infringes on an individual's

liberty. This duty is not discharged when the restriction

arises in the context of military affairs. However, the

“customary deference” which federal courts accord to

congressional judgments is perhaps never more pro-

nounced than when the “case arises in the context of

Congress’ authority over national defense and military

affairs.” Rostker v. Goldberg, 453 U.S. 57, 64-65 (1981). This

is because “[t]he constitutional power of Congress to

raise and support armies and to make all laws necessary

and proper to that end is broad and sweeping.” United

States v. O’Brien, 391 U.S. 367, 377 (1968). Furthermore,

courts have recognized their relative “incompetence” in

the area of military affairs:

[I]t is difficult to conceive of an area of govern-

mental activity in which the courts have less

competence. The complex, subtle, and profes-

sional decisions as to the composition, training,

equipping, and control of a military force are

essentially professional military judgments, sub-

ject always to civilian control of the Legislative

and Executive Branches.

Gilligan v. Morgan, 413 U.S. 1, 10 (1973).

In Rostker v. Goldberg, 453 U.S. 57 (1981), the Court

discussed at length the tension between its “constitu-

tional responsibility” and the appropriate deference to

accord Congress in the military arena. The Court in Rost-

ker was called upon to decide whether the Military Selec-

tive Service Act violated the Fifth Amendment Due

Process Clause by denying equal protection of the laws in

requiring only men to register for the draft. The Court

noted that although judicial deference is “at its apogee”

App. 33

when considering Congress’ authority to raise and sup-

| port armies, “deference does not mean abdication.” Id. at

70. The Court stated that while this deference does not

“refine” the applicable constitutional tests, it “cannot

ignore Congress” broad authority conferred by the Con-

stitution to raise and support armies when we are urged

to declare unconstitutional its studied choice of one alter-

: native in preference to another for furthering that goal.”

Id. at 71-72. This is especially true when “Congress speci-

fically considered the question of the Act’s constitu-

tionality.” Id. at 64.

As in Rostker, Congress enacted the policy in the

present case pursuant to Article I Section 8 of the Consti-

tution. 10 U.S.C. § 654(a)(i)-(3). In addition, the policy

“received considerable national attention,” “was the sub-

ject of wide-ranging public debate,” and was “extensively

considered by Congress in hearings, floor debate, and in

committee.” Rostker, 453 U.S. at 72. Accordingly, the

Court will evaluate the policy in light of the principles

articulated in Rostker.

(b) First Amendment

‘Plaintiff alleges that the policy infringes on his First

Amendment rights by imposing a content/viewpoint-

based restraint on his freedoms of speech and association

(Count VI).! Specifically, plaintiff argues that the policy

* Plaintiff also alleges that the policy violates his right to

equal protection under the laws as guaranteed by the Fifth and

Fourteenth Amendments by restricting his exercise of the

fundamental right to freedom of speech (Count II). The Court

App. 34

“silences a group of speakers not only because of what

they say but because of who they are,” thereby “impli-

cat[ing] the First-Amendment value of promoting indi-

vidual dignity and integrity.” (Pl.’s Br. at 40, 54).

Accordingly, plaintiff argues that the policy is “presump-

tively invalid.” R.A.V. v. City of St. Paul, 505 U.S. 377, 382

(1992).

The Supreme Court has long recognized, however,

that First Amendment challenges of military regulations

are subject to a different analysis than in a civilian con-

text:

While the members of the military are not

excluded from the protection granted by the

First Amendment, the different character of the

military community and of the military mission

require a different application of those protec-

tions. The fundamental necessity for obedience,

and the consequent necessity for imposition of

will consider plaintiff’s equal protection claim based on the

alleged denial of a fundamental- right together with his

substantive First Amendment claim since the governing

standard will be same. Austin v. Michigan Chamber of Commerce,

494 U.S. 652, 666 (1990); Police Dep’t of the City of Chicago v.

Mosley, 408 U.S. 92, 95 (1972). See also City of Renton v. Playtime

Theaters, Inc., 475 U.S. 41, 55 n. 4 (1986) (“respondents can fare

no better under the Equal Protection Clause than under the First

Amendment itself”); and 3 Rotunda & Nowak, Treatise on

Constitutional Law: Substance and Procedure, 2nd § 18.40 (1992)

(“if [a court] finds that a classification regarding speech or

associational rights does not infringe first amendment

freedoms, it is likely to find that the classification does not

violate equal protection because it has determined that the law

does not constitute the improper allocation of a fundamental

right”).

App. 35

discipline, may render permissible within the

military that which would be constitutionally

impermissible outside it.

Parker v. Levy, 417 U.S. 733, 758 ( 1974). Accordingly, “[t]he

rights of military men must yield somewhat ‘to meet

certain overriding demands of discipline and duty.’ ”

Brown v. Glines, 444 US. 348, 354 (1980) (citations omit-

ted). Thus, “ ‘[s]peech that is protected in the civil popu-

lation may nonetheless undermine the effectiveness of

response to command. If it does, it is constitutionally

unprotected.’” Parker, 417 U.S. at 759 (quoting United

States v. Priest, 45 C.M.R. 338, 344 (1972).

The Court applied these principles in Goldman v.

Weinberger, 475 U.S. 503 (1986), when considering

whether an Air Force regulation prohibiting an Orthodox

Jewish member from wearing a yarmulke violated the

First Amendment. Giving “great deference to the profes-

sional judgment of military authorities concerning the

relative importance of a particular military interest,” the

Court noted that petsonal identity in the military is sub-

ordinate to the “overall group mission.” Id. at 507-08. In

holding that the regulation did not violate the First

Amendment, the Court stated:

Our review of military regulations challenged

on First Amendment grounds is far more defer-

ential than constitutional review of similar laws

or regulations designed for civilian society. The

military need not encourage debate or tolerate

protest to the extent that such-tolerance is

required of the civilian state by the First

Amendment; to accomplish its mission the mili-

tary must foster instinctive obedience, unity,

commitment, and esprit de corps. The essence of

App. 36

military service “is the subordination of the

desires and interests of the individual to the

needs of the service.”

These aspects of military life do not, of course,

render entirely nugatory in the military context

the guarantees of the First Amendment. But

“within the military community there is simply

not the same [individual] autonomy as there is

in the larger civilian community.”

Id. at 507 (citations omitted).

Applying these principles to the present case, the

Court concludes that the policy does not violate plain-

tiff’s First Amendment rights. There is little doubt that

the policy affects speech. But as the Seventh Circuit Court

of Appeals recognized in addressing this very issue, “it

does so only incidentally, in the course of pursuing other

legitimate goals.” Ben-Shalom v. Marsh, 881 F.2d 454, 462

(7th Cir. 1989). The only restriction on plaintiff’s speech is

the ability to state that he is homosexual and the failure

to rebut the presumption created by that statement.

Although, this may result in a denial of self-identity,

plaintiff's interests in autonomy and self-identity are sub-

ordinate to the military interests in good order and disci-

pline, morale, unit cohesion and combat readiness. Thus

while the presumption created by a statement of homo-

sexuality may inhibit speech to a limited extent, the Court

“cannot say that the infringement rises to the level of

being unconstitutional.” Ben-Shalom, 881 F.2d. at 461. This

is true especially in light of the deferential review of First

App. 37

Amendment challenges of military regulations. Accord-

ingly, plaintiff’s First Amendment claim and equal pro

tection claim based on the denial of a fundamental right

must fail.

Plaintiff alleges that the policy denies him equal pro-

tection of the laws by: (1) discharging him from the Air

Force on the basis of his status as homosexual; (2) requir-

ing him to rebut a presumption which does not apply to

heterosexuals; and (3) discriminating against him on the

basis of gender (Counts I, III and IV).

etattaihint’ iat oe

The Equal Protection Clause of the Fourteenth

Amendment provides that “[n]o State shall make or

enforce any law which shall. . . deny to any person

within its jurisdiction the equal protection of the laws.”

Equal protection applies to federal actions through the

Fifth Amendment Due Process Clause. Schlesinger v. Bal-

lard, 419 U.S. 498, 500 n. 3 (1975). The equal protection

analysis is identical under the Fifth and Fourteenth

Amendments. Weinberger v. Wiesenfeld, 420 U.S. 636, 638

n. 2 (1975).

A threshold issue in equal protection analysis is

determining whether to apply strict scrutiny, intermedi-

ate scrutiny, or rational-basis review. Plaintiff argues that

strict scrutiny applies because the policy excludes homo-

sexuals on the basis of status rather than conduct and

because homosexuals constitute a suspect class. Plaintiff

concedes that neither the Supreme Court nor the Eighth

Circuit Court of Appeals has ever held that homosexuals

constitute a suspect-class. However, plaintiff urges the

he bh

App. 38

Court to reach this conclusion based on the suspect-class

criteria identified by the Supreme Court in San Antonio

Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28 (1973), and

Frontiero v. Richardson 411 U.S. 677, 684-86 (1973). In the

alternative, plaintiff argues that the Court should apply

heightened scrutiny because the policy unfairly discrimi-

nates on the basis of gender, a quasi-suspect classifica-

tion.

Five federal courts of appeals have uniformly deter-

mined that rational-basis review is the proper analysis to

apply to equal protection challenges of the military’s

policy regarding homosexuals. Steffar v. Perry, 41 F.3d

677, 684 (D.C. Cir. 1994) (en banc); Meinhold v. Department

of Defense, 34 F.3d 1469, 1478 (9th Cir. 1994); Ben-Shalom v.

Marsh, 881 F.2d 454, 464 (7th Cir. 1989), cert. denied, 494

U.S. 1004 (1990); Woodward v. United States, 871 F.2d 1068,

1076 (Fed. Cir. 1989), cert. denied, 494 U.S. 1003 (1990); and

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

1984). In light of this precedent and because “courts have

been very reluctant, as they should be in our federal

system” to create new suspect classes, the Court declines

to extend suspect classification status to homosexuals.

City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 441

(1985). In addition, plaintiff’s attempt to obtain height-

ened scrutiny on the basis of gender discrimination must

fail since the policy applies equally to male and female

service members. Accordingly, the Court will apply ratio-

nal-basis review to plaintiff's equal protection claims.

The standards for rational-basis review are familiar

ones. A non-suspect classification is “accorded a strong

presumption of validity” and “cannot run afoul of the

Equal Protection Clause if there is a rational relationship

App. 39

between the disparity of treatment and some legitimate

governmental purpose.” Heller v. Doe by Doe, 113 S.Ct.

2637, 2642 (1993). The statute is presumed constitutional

and the government has no obligation to produce evi-

dence to sustain the rationality of the classification. Id. at

2643. Instead, the challenging party has the burden to

“ ‘negative every conceivable basis which might support

it.” Id. (citations omitted). Classifications survive ratio-

nal-basis review despite Congress’ “generalizations even

when there is an imperfect fit between means and ends. A

classification does not fail rational-basis review because it

‘is not made with mathematical nicety or because in

practice it results in some inequality.’ ” Id. (citations omit-

ted). In short, “[i]t is hard to imagine a more deferential

standard than rational basis, but when judging the ratio-

nality of a regulation in the military context, we owe even

more special deference to the ‘considered professional

judgment’ of ‘appropriate military officials.’” Steffan v.

Perry, 41 F.3d 677, 685 (D.C. Cir. 1994) (quoting Goldman v.

Weinberger, 475 U.S. 503, 509 (1986)).

Under the rational-review analysis, the Court must

first determine whether the policy is directed at the

achievement of a legitimate governmental purpose. After

months of public debate and extensive hearings, Con-

gress expressed the purpose of the policy and the rea-

soned judgment of the Commander-in-Chief, the

Secretary of Defense and the leaders of the military

branches when it stated:

(4) The primary purpose of the armed forces is

to prepare for and to prevail in combat should

the need arise.

App. 40

(6) Success in combat requires military units

that are characterized by high morale, good

order and discipline, and unit cohesion.

10 U.S.C. § 654(a). It is difficult to conceive of more

legitimate governmental concerns than matters of

national defense and the safety and security of American

military personnel. A policy designed to protect these

interests by eliminating a potential threat to them is

certainly aimed at a legitimate governmental purpose.

This is especially true considering Congress’ broad power

to establish conditions and qualifications for service in

the armed forces. Exercising this discretion, Congress has

determined that due to the nature of military life, the

presence of persons who demonstrate a propensity to

engage in homosexual conduct presents an unacceptable

risk to unit cohesion, morale, good order and discipline

and military readiness. Thus, the policy of excluding

from the military those who demonstrate a propensity to

engage in homosexual conduct is directed at several and

related legitimate governmental purposes.

Plaintiff argues that the policy is based on prejudice

and that defendants, asserted justifications are invalid.

The Court acknowledges, as did the court in Ben-Shalom,

that there certainly is prejudice against homosexuals

within the armed forces. However, the Court is called

upon to determine the constitutionality of the policy — not

its wisdom. That determination is for Congress to make

as overseer of the military and the Court should not

second-guess its authority in this area. As noted above,

this principle applies with particular force when Con-

gress has made a studied choice between alternatives and

specifically considered the policy's constitutionality. As

App. 41

the Seventh Circuit reasoned in Ben-Shalom v. Marsh, 881

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

[T]he Army should not be required by this court

to assume the risk, a risk it would be assuming

for all our citizens, that accepting admitted

homosexuals into the armed forces might

imperil morale, discipline, and the effectiveness

of our fighting forces. . . . We, as judges,

although opponents of prejudice of any kind,

should not undertake to order such a risky

change with possible consequences we cannot

safely evaluate.

Id. at 461. Accordingly, plaintiff’s argument must fail.

The Court must next inquire whether the policy

rationally furthers these purposes. Plaintiff argues that

the presumption created by a statement of homosexuality

is irrational and impermissibly discriminates on the basis

of homosexual orientation or status and not on the basis

of conduct.2

The Court coneludes, as have other courts, that the

military may rationally and reasonably infer from a state-

ment of homosexuality that a member has a propensity to

engage in homosexual conduct. For example, in Ben-

Shalom, supra, the plaintiff was an Army reservist who

was denied reenlistment due to her statement that she

was a lesbian. The plaintiff challenged the Army regula-

tion as creating a classification based on status and not

? There is no doubt that the military may constitutionally

prohibit homosexual conduct. Meinhold v. Department of Defense,

34 F. 3d 1469, 1477 (9th Cir. 1994); Dronenburg v. Zech, 741 F.2d

1388, 1398 (D.C. Cir. 1984); Beller v. Middendorf, 632 F.2d 788, 812

(9th Cir. 1980), cert. denied, 452 U.S. 905 (1981).

App. 42

conduct. Rejecting this argument, the court held that “the

regulation does not classify plaintiff based merely upon

her status as a lesbian, but upon reasonable inferences

about her probable conduct in the past and in the future.”

881 F.2d at 464. The court reasoned that the plaintiff’s

“forthright admission” of homosexuality “reasonably

implies, at the very least, a ‘desire’ to commit homosexual

acts.” Id. at 460. The court added:

Plaintiff’s lesbian acknowledgment, if not an

admission of its practice, at least can rationally

and reasonably be viewed as reliable evidence

of a desire and propensity to engage in homo-

sexual conduct. Such an assumption cannot be

said to be without individual exceptions, but it

is compelling evidence that plaintiff has in the

past and is likely to again engage in such con-

duct.

Id. at 464.

Similarly, in Steffan v. Perry, 41 F.3d 677, (D.C. Cir.

1994) (en banc), the plaintiff was discharged from the

Naval Academy solely on the basis of his statement that

he is homosexual. The court noted that “[h]omosexuality,

like all forms of sexual orientation, is tied closely to

sexual conduct,” and that to pretend otherwise “ ‘borders

on the absurd.’ ” Id. at 689-90 (citations omitted). Thus,

“the military may reasonably assume that when a mem-

ber states that he is homosexual, that member means that

he either engages in or is likely to engage in homosexual

conduct.” Id. at 686. And while it is conceivable that a

person would describe himself as homosexual despite the

absence of any ongoing conduct or probability of such

App. 43 :

conduct, the fact that there may be exceptions is irrele-

vant “so long as the classification (the regulation) in the

run of cases furthers its purpose, and we readily conclude

that it does.” Id. Accordingly, the court held that the

policy of discharging members who admit to being homo-

sexual rationally furthers the legitimate interest of ban-

ning persons who have a propensity to engage in

homosexual conduct, especially considering that “the

human sexual drive is enormously powerful and that an

open declaration that one is homosexual is a rather reli-

able indication as to the direction of one’s drive.” Id. at

690. Thus, the plaintiff’s claim “that the government can-

not rationally infer that one who states he or she is a

homosexual is a practicing homosexual, or is at least

likely to engage in homosexual acts, is so strained a

constitutional argument as to amount to a basic attack on

the policy itself.” Id. at 693.

Thus, the Court concludes that the use of a rebuttable

presumption is a rational means of furthering the mili-

tary’s legitimate purpose of prohibiting service members

who demonstrate a propensity to engage in homosexual

conduct from serving in the armed forces. It is of no

constitutional consequence that the plaintiff may in fact

have no propensity to engage in homosexual conduct. As

stated above, under rational-basis review, the military

need not create an exact fit between its policy and the

goal sought to be achieved. Because the policy generally

advances its purpose, the Court concludes that plaintiff's

equal protection challenges must fail.

App. 44

(d) Due Process

Plaintiff also alleges that the policy violates due pro-

cess and procedural fairness (Count V). Specifically,

plaintiff argues that the presumption is simply irrational

and that it, in effect, creates an irrebuttable presumption.

This claim is without merit. As discussed above, the

military may constitutionally infer from a statement of

homosexuality that a service member has a propensity to

engage in homosexual conduct. In addition, seven service

members thus far have successfully rebutted the pre-

sumption. A service member is afforded a full hearing

and opportunity to rebut the presumption. Whether the

member successfully rebuts the presumption is deter-

mined on an individual basis. Finally, the Court agrees

with defendants’ assertion at oral argument that there is

no guarantee to the service member that-what he or she

offers at the hearing will be accepted.

(e) Right of Privacy

Plaintiff alleges that the policy infringes on his con-

stitutionally protected right of privacy (Count VII). Sev-

eral courts have rejected this argument in challenges to

the military’s former policy regarding homosexuals.

Schowengerdt v. United States, 944 F.2d 483, 490 (9th Cir.

1991) cert. denied 503 U.S. 951 (1992); Woodward v. United

States, 871 F.2d 1068, 1075 (Fed. Cir. 1989), cert. denied, 494

U.S. 1003 (1990); Dronenburg v. Zech, 741 F.2d 1388,

1391-98 (D.C. Cir. 1984); Rich v. Secretary of the Army, 735

F.2d 1220, 1228 (10th Cir. 1984). In addition, while not

explicitly ruling on the issue of privacy, the court in Ben-

App. 45

Shalom v. Marsh, 881 F.2d 454 (7th Cir. 1989), observed

that:

The privacy expectations of a civilian, wherever

their outer limit may be, cannot be compared to

the substantially more limited privacy expecta-

tions accompanying military life. Plaintiff in the

present case voluntarily sacrificed much per-

sonal privacy and liberty by deliberately seek-

ing to be in the Army where privacy and liberty

are necessarily at a premium.

Id. at 465. Finally, the Court agrees with the reasoning in

Rich, supra, that even if the policy does implicate plain-

tiff’s privacy interests, they are outweighed by the mili-

tary’s legitimate interests articulated above. 735 F.2d at

1228. Accordingly, plaintiff’s claim that the policy denies

him of his right to privacy must fail.

(f) Bill of Attainder

Plaintiff asserts that the Act (10 U.S.C. § 654) consti-

tutes a bill of attainder proscribed by Article I, § 9, Clause

3 of the United States Constitution (Count VIII). That

section provides that: “[no] bill of attainder or ex post

facto law shall be passed.”

A bill of attainder is a law that legislatively deter-

mines guilt and inflicts punishment upon an identifiable

individual without provision of the protections of a judi-

cial trial. Nixon v. Administrator of Gen. Servs., 433 U.S.

425, 468 (1977). Thus, there are three factors which deter-

mine whether a particular piece of legislation constitutes

a bill of attainder: (a) whether the statute identifies an

individual or individuals or easily ascertainable members

App. 46

of a group, (b) whether the statute inflicts punishment

and (c) whether the punishment has been inflicted with-

out a judicial trial. All three factors must be met. Because

the Court finds that the policy as stated in 10 U.S.C. § 654

does not “inflict punishment” within the meaning of the

bill of attainder clause, factors (a) and (c) will not be

considered.

In Selective Svc. Sys. v. Minn. Pub. Int. Res. Gp., 468

U.S. 841 (1984), the Supreme Court stated:

In deciding whether a statute inflicts forbidden

punishment, we have recognized three neces-

Sary inquiries: (1) whether the challenged stat-

ute falls within the historical meaning of

legislative punishment; (2) whether the statute,

“viewed in terms of the type and severity of

burdens imposed, reasonably can be said to fur-

ther non-punitive legislative purposes” and (3)

whether the legislative record “evinces a con-

gressional intent to punish.” Nixon, supra, at 473,

475-476, 478, 53 L.Ed.2d 867, 97 S.Ct. 2777.

Id. at 852. The military policy pertaining to homosex-

uality does not fall within the historical meaning of legis-

lative punishment. As noted in Selective Suc. Sys., bills of

attainder at common law often imposed death penalty

and lesser punishments including imprisonment, banish-

ment, and the punitive confiscation of property. Id. The

Court noted that “in our own country, the list of punish-

ments forbidden by the Bill of Attainder Clause has

expanded to include legislative bars to participation by

individuals or groups in specific employments or profes-

sions.” Id. at 852. However, in this case, homosexuals are

not barred from the Air Force simply because they are

homosexuals. In this respect, this case is quite similar to

App. 47

the Selective Service case where the Court noted: “A

statute that leaves open perpetually the possibility of

qualifying for aid does not fall within the historical

meaning of forbidden legislative punishment.” Id. at 853.

That case involved application for aid benefits under Title

IV, which was tied to the applicants having properly

registered with the Selective Service System. Here, the

statute leaves open the possibility of qualifying for con-

tinued service in the Air Force when the person who has

declared him or herself to be a homosexual overcomes the

presumption that he or she does not engage in, attempt to

engage in, have a propensity to engage in, or intend to

engage in homosexual acts.

Further, the policy is not concerned with somehow

singling out homosexuals for punishment. The history

behind the policy does not “evince an intent to punish”

homosexuals. Indeed, maintaining the discipline and

morale of the armed services is a compelling govern-

mental interest justifying the adoption of the policy.

Finally, this is not a new restriction placed upon

members of the Air Force. The policy of the Air Force has

long barred participation by homosexuals. This statute, in

fact, moderates the prior policy by prohibiting discharge

simply on the basis of status, and permits the service

member to rebut what formerly was an irrebuttable pre-

sumption of the Air Force.

For these reasons, the Court rejects plaintiff’s conten-

tion that the statute is proscribed by the provisions of the

Constitution prohibiting Congress from enacting bills of

attainder.

App. 48

(g) Administrative Procedures Act

Plaintiff contends that the decision to discharge Cap-

tain Richenberg violates the Administrative Procedures

Act (Count IX). His first claim is that “the decision . . . to

discharge Captain Richenberg simply on the basis of his

statement that he is gay violates the Administrative Pro-

cedures Act.” His second contention is that the decision

of defendant Widnall is arbitrary and capricious, contrary

to law and unsupported by substantial evidence.

Regarding his first contention, plaintiff a that

the Act and Regulations only authorize discharge pro-

ceedings for statements when a service member makes a

statement that “demonstrates a propensity or intent to

engage in homosexual acts,” citing Directive 1332.30 at

1-1. That section defines homosexual conduct to include

“a statement by the Service member that demonstrates a

propensity or intent to engage in homosexual acts.” How-

ever, the plaintiff ignores the operative provisions of

1332.30(C)(1)(b), quoted supra, at p. 5.

The Court has already addressed the validity of this

presumption. While this may not be a wise policy, policy-

making is not for the courts. Having found that the

military may adopt such a policy effectively disposes of

this contention.

The second contention is that the decision to dis-

charge him based upon the Board of Inquiry hearing is

arbitrary and capricious, contrary to law, and unsup-

ported by substantial evidence. Plaintiff cites 5 U.S.C.

§ 706(2)(A-F) as the basis for these objections. That sec-

tion of the United States Code deals with the scope of

review of an agency action and states in part that the

ome

App. 49

reviewing court shall hold unlawful and set aside any

agency action found to be “(A) arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with

law; (B) contrary to constitutional right, power, privilege

or immunity; . . . (E) unsupported by substantial evi-

dence. . . . ” The Court has already disposed of Factor (B)

and will not address it again.

This administrative discharge was initiated pursuant

to AFR 36-2, adopted by the Department of the Air Force

effective October 1, 1984, and a Board of Inquiry was

convened by Special Order A-010 (Government Exhibit

1). The authority for the convening of a Board of Inquiry

is premised on 10 U.S.C. § 1182. The Board of Inquiry

convened on June 20-21, 1994. Plaintiff and the govern-

ment both presented evidence, resulting in a decision in

which the Board recommended that plaintiff be removed

from active duty with an honorable discharge. This rec-

ommendation was reviewed by a Board of Review and

subsequently by the Secretary of the Air Force, both of

whom approved and adopted the recommendation of the

Board of Inquiry. The Secretary directed that the plaintiff

be given an honorable discharge from the United States

Air Force. The standard of review of this agency action

has been set forth by the United States Court of Appeals

for the Eighth Circuit in Oglala Sioux Tribe of Indians v.

Andrus, 603 F.2d 707, 713 (1979), as follows:

We turn now to the merits of the case. The scope

of judicial review of agency action has been set

forth by the Supreme Court in Citizens to Pre-

serve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct.

814, 28 L.Ed.2d 136(1971). The reviewing court

must first decide whether the agency acted

App. 50

within the scope of its statutory authority. Id. at

415, 91 S.Ct. 814. If it has, the court must then

determine whether its actual choice was “arbi-

trary, capricious, an abuse of discretion, or oth-

erwise no in accordance with law.” Id. at 416, 91

S.Ct. at 823, quoting 5 U.S.C. § 706(2)(A). See

CPC International Inc. v. Train, 515 F.2d 1032,

1043-1044 (8th Cir. 1975), cert. denied, 430 U.S.

966, 97 S.Ct. 1646, 52 L.Ed.2d 357 (1977).

This inquiry necessarily involves a review of the

decision of the Board of Inquiry which is the basis for the

decision of the Board of Review and the Secretary. The

Court believes that the appropriate standard of review of

the action of the Board of Inquiry is governed by “the

substantial evidence” test. See Castillo v. Army & Air Force

Exchange Service, 849 F.2d 199 (5th Cir. 1988). The “sub-

stantial evidence” test for review is a narrow one, and the

reviewing court is not to substitute its conclusion for

those of the agency. Furthermore, the possibility of draw-

ing inconsistent conclusions from the evidence does not

mean that the agency’s findings are unsupported by sub-

stantial evidence. See Erickson Transport Corp. v. ICC, 728

F.2d 1057 (8th Cir. 1984).

The Court has reviewed the entire transcript of the

hearing before the Board of Inquiry. (Pl.’s Ex. C-1). The

Court keeps in mind that in applying this standard of

review, it is not to determine whether or not it would

have decided the matter in the same manner as the Board

of Inquiry but rather whether there is substantial evi-

dence supporting the Board’s finding. As the parties

noted in their closing arguments, the issue boils down to

a question of credibility. The Board of Inquiry had the

opportunity to observe the witnesses and to review the

App. 51

evidence presented, and the Court finds that its decision

is supported by “substantial evidence” as that term is

used in the statute and in the cases applying that stan-

dard of review. Accordingly, the Court also finds that the

decision of the Secretary is not arbitrary or capricious or

an abuse of the Secretary’s discretion.

CONCLUSION

The military’s policy regarding homosexuals in the

armed forces contained in 10 U.S.C. § 654 and the imple-

menting regulations does not violate plaintiff’s rights

under the United States Constitution or under the

Administrative Procedures Act. Accordingly, plaintiff's

motion for summary judgment will be denied and defen-

dants’ motion for summary judgment will be granted.

The Court will enter a separate order in accordance with

this opinion.

DATED this 11th day of December, 1995

BY THE COURT:

/s/

LYLE E. STROM, Senior Judge

United States District Court

App. 52

APPENDIX D

DEPARTMENT OF THE AIR FORCE

[SEAL] WASHINGTON DC [SEAL]

Office of the Assistant Secretary

28 AUG 1995

ACTION

of the

SECRETARY OF THE AIR FORCE

The Secretary of the Air Force orders that Captain

Richard F. Richenberg, Jr., 457-23-6070FR, be removed

from active duty in the United States Air Force pursuant

to Air Force Regulation 86-12, paragraph 3-14, and that

he be issued an Honorable Discharge Certificate.

Approval of this action does not excuse any indebt-

edness to the United States Government.

/s/

JOE G. LINEBERGER

Deputy for

Air Force Review Boards

App. 53

APPENDIX E

DEPARTMENT OF THE AIR FORCE

[SEAL] WASHINGTON DC [SEAL]

Office of the Assistant Secretary

9 MAR 1995

MEMORANDUM FOR THE SECRETARY

OF THE AIR FORCE

THRU: SAF/US /s/ R 8-11-95

SAF/MI /s/ 8/9/95

SAF/GC /s/ See attached & rec memo

28 Jul 95

FROM: SAF/MIB

1585 Command Drive Suite C-802

Andrews AFB MD 20831-7002

SUBJECT AFR 36-2 Board of Inquiry (Homosexuality) -

Captain Richard F. Richenberg, Jr.,

457-23-6070FR

Respondent is a 37-year-old EC-135 electronic war-

fare officer at Offutt Air Force Base, Nebraska. He

received his commission through OTS in 1985 and has

served continuously on active duty since that time. His

OPRs reflect excellent duty performance.

The facts leading to this discharge action are set forth

in the HQ USAF/JAG legal review (Attachment 2), which

is incorporated by reference. Nonetheless, to facilitate

review of this case, a summary of the pertinent facts and

circumstances follows.

Respondent's Air Force career was progressing well

until 1992, when he was selected to be part of a Foreign

Military Sales (FMS) program to train and support per-

sonnel in Saudi Arabia. Respondent determined he did

App. 54

not want to serve a two year tour in Saudi Arabia. In

April 1993, near the end of the FMS program training,

respondent asked to terminate the PCS to Saudi Arabia

and requested separation from the Air Force. The request

was denied. A month later, respondent sent a faxed state-

ment to his commander stating he was a homosexual.

Between May and September 1993, respondent also told

Captain Y that he was a homosexual. Finally, sometime

during September 1993, respondent told Captain F that

he was a homosexual.

As a result of these statements by respondent, his

commander initiated discharge for homosexuality. A

Board of Inquiry (BOI) in December 1993 recommended

respondent be discharged from the Air Force with a gen-

eral discharge. Before final action on that recommenda-

tion, the Secretary directed the case be reconsidered

under the new homosexual policy implemented in 1994.

Discharge action was reinitiated in April 1994. Respon-

dent elected to have his case heard at a BOI and the

hearing took place on June 20 and 21, 1994.

During the BOI the government’s documentary evi-

dence included the letter respondent faxed to his com-

mander stating he was a homosexual. Also included was

an affidavit from Captain F in which he acknowledged

respondent said he was a homosexual. The government's

only witness was respondent’s commander, who testified

about the faxed letter in May 1993 and respondent's duty

performance.

Respondent submitted extensive documentary evi-

dence and called four witnesses at the BOI. Three of the

App. 55

witnesses stated respondent had admitted his homosex-

uality to them. All four spoke highly of respondent’s

professionalism and duty performance. Respondent him-

self testified about how he came to recognize his homo-

sexuality and that he had self-control over his actions. He

said he did not intend to engage in prohibited conduct.

On cross-examination, he acknowledged he was attracted

to men, but had not yet explored such relationships.

After instructions and deliberations, the BOI found

respondent made the three statements alleged and did

have a propensity to engage in or intent to engage in

homosexual acts. The BOI recommended an honorable

discharge. After receiving a copy of the BOI record,

respondent submitted a rebuttal on August 3, 1994. The

post-BOI comments largely reiterated arguments made at

the BOI. Respondent argued he rebutted the presumption

that he has a propensity to engage in or intends to engage

in homosexual acts. Furthermore, he contended the Air

Force homosexual, policy is unconstitutional and he

should have been allowed to challenge that policy at the

BOI. The Vice Commander, ACC, reviewed the BOI pro-

ceedings and recommended separating respondent with

an honorable discharge.

The Air Force Board of Review considered this case

on February 24, 1995. In the Board’s view, the HQ USAF/

JAG analysis was on target. Even though he now denies

any intention to commit homosexual acts, his admission

to several people that he had a homosexual orientation

- seems to belie that contention. In view of the fact that he

has come to accept his homosexuality, he continues to be

attracted to men, and his testimony that he has not yet

explored a sexual relationship with another man, the

App. 56

Board was satisfied that he had not rebutted the pre-

sumption that he has a propensity to commit homosexual

acts. Accordingly, the Board determined the evidence

supported the findings of the BOI and that respondent

should be separated from the Air Force with an honor-

able discharge.

With your concurrence, we will release the attached

directive which implements the decision of the Board.

/s/

JOE G. LINEBERGER

Deputy for

Air Force Review Boards

Attachments:

1. Secretarial Instrument

2. HQ USAF/JAG Legal Review

3. Record of Proceedings

4. Case File

/s/ SEW Concur AUG 23 1995

Non concur

See me

App. 57

APPENDIX F

Record of Proceedings

AIR FORCE BOARD OF REVIEW

Pursuant to Air Force Regulation 36-2, the Air Force

Board of Review met at Washington, D.C. on February 24,

1995, to consider the case of Captain Richard F. Richen-

berg, Jr., 457-23-6070FR.

Special Order AA-335 dated January 5, 1995, appoint-

ing the members of the Board, was introduced in evi-

dence as Exhibit 1.

PRESENT

Colonel T. L. Murtaugh

Colonel David L. Oles

Colonel Darvin K. Suter

Colonel Donald H. Ankov

Colonel James W. Shumard, III

RECORDER

Lieutenant Colonel Dartt J. Demaree

The Recorder presented to the Board all available records

in connection with these proceedings.

DETERMINATION

That respondent should not be retained on active duty.

RECOMMENDATIONS

That Captain Richard F. Richenberg, Jr., 457-23-6070FR, be

removed from active duty in the United States Air Force

pursuant to Air Force Regulation 36-12, paragraph 3-14

App. 58

and that he be issued an Honorable Discharge Certificate

from the United States Air Force.

/s/

T. L. MURTAUGH, Colonel, USAF

President

/s/

DARTT J. DEMAREE, Lieutenant Colonel, USAF

Recorder

o/s ngeds eatti at hg

App. 59

APPENDIX G

Captain Richard F. ) AFR 36-2 Board of Inquiry

Richenberg, Jr. ) Findings and Recommen-

SSN 457-23-6070FR ) dations

RECOMMENDATIONS OF THE BOARD OF INQUIRY

This Board, after carefully considering all the evidence in

this case, has, in closed session, by secret written ballot, a

majority of the voting members concurring, by the pre-

ponderance of the evidence, made the following findings

and recommendations:

FINDINGS

a. The Respondent, Captain Richard F. Richenberg, Jr.:

(1) (Did) (Bid—net) make a verbal state-

ment that he is a homosexual as follows:

On or about 24 May 1993, he stated in a letter

submitted by telephonic facsimile to Captain

Ralph Ah Sam, for him to provide to Captain

Richenberg’s unit commander, Lieutenant Colo-

nel David G. Bell, that he is a homosexual.

(2) (Did) (Bid—net) make a verbal statement

that he is a homosexual as follows:

Sometime between 24 May 1993 and 30 Septem-

ber 1993, he verbally stated to Captain Kenneth

L. Yaphe that he is a homosexual.

(3) (Did) (Bid—net) make a verbal statement

that he is a homosexual as follows:

Sometime during September 1993, he verbally

stated to Captain Mark L. Feingold that he is a

homosexual.

App. 60

NOTE: If you find that the respondent did not make a

statement that he is homosexual, you must go to the

Recommendations portion and recommend that he be

retained. If you find that the Respondent did state he is a

homosexual, you must make further findings in Part b

below.

b. The Board finds the Respondent (dees-ret) (does)

engegein—attemptto—engeagein,; have a propensity to

engage in, or intend to engage in homosexual acts.

NOTE: If you find the Respondent does not engage in,

attempt to engage in, have a propensity to engage in, or

intend to engage in homosexual acts, you must go to the

Recommendations section and recommend the Respon-

dent be retained. If you find the Respondent does engage

in, attempt to engage in, has a propensity to engage in, or

intend to engage in homosexual acts, you must go to the

Recommendations section and recommend that the

Respondent be removed and determine the characteriza-

tion of the discharge.

RECOMMENDATIONS

(NOTE: Circle the paragraph that is applicable to your

findings.)

1. Recommend the Respondent be retained in the Air

Force.

(2.) Recommend the Respondent be removed from

active duty with a (honorable) (generattderhonorable

conditions) discharge.

App. 61

The undersigned certify that a majority of the voting

members concur in the above findings and recommenda-

tion.

/s/ 21 June 94

Colonel Billy F. Richey Date

/s/ 21 June 94

Colonel Timothy J. McGoldrick Date

/s/ 21 June 94

Colonel David T. Buckwalter Date

App. 62

APPENDIX H

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 95-4181NEO

Richard F. Richenberg, Jr, * Order Denying Petition

po ee * for Rehearing and

PP 7 * Suggestion for Rehearing

VS. * En Banc

William J. Perry, etc., et :

a. Z

Appellees.

The suggestion for rehearing en banc is denied. Chief

Judge Richard S. Arnold, Judge McMillian, Judge Beam,

Judge Morris Sheppard Arnold, and Judge Murphy

would grant the suggestion.

The petition for rehearing by the panel is also denied.

Judge Hansen took no part in the consideration or

decision of this case.

January 17, 1997

Order Entered at the Direction of the Court:

Michael E. Gans

Clerk, U.S. Court of Appeals, Eighth Circuit

App. 63

APPENDIX I

ADMINISTRATIVE PROCEDURE ACT

5 U.S.C. § 706. Scope of review

To the extent necessary to decision and when pre-

sented, the reviewing court shall decide all relevant ques-

tions of law, interpret constitutional and statutory

provisions, and determine the meaning or applicability of

the terms of an agency action.

The reviewing court shall -

(1) compel agency action unlawfully withheld

or unreasonably delayed; and

(2) hold unlawful and set aside agency action,

findings, and conclusions found to be -

(A) arbitrary, capricious, an abuse of dis-

cretion, or otherwise not in accordance with

law;

(B) contrary to constitutional right, power,

privilege, or immunity; in excess of statutory

jurisdiction, authority, or limitations, or short of

statutory right;

(D) without observance of procedure

required by law;

(E) unsupported by substantial evidence

in a case subject to sections 556 and 557 of this

title or otherwise reviewed on the record of an

agency hearing provided by statute; or

(F) unwarranted by the facts to the extent

that the facts are subject to trial de novo by the

reviewing court.

App. 64

In making the foregoing determinations, the court shall

review the whole record or those parts of it cited by a

party, and due account shall be taken of the rule of

prejudicial error.

(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 393.)

App. 65

APPENDIX J

NATIONAL DEFENSE AUTHORIZATION ACT OF 1994

10 U.S.C. § 654. Policy concerning homosexuality in the

armed forces.

(a) FINDINGS. - Congress makes the following find-

ings:

(1) Section 8 of Article I of the Constitution of the

United States commits exclusively to the Congress the

powers to raise and support armies, provide and main-

tain a Navy, and make rules for the government and

regulation of the land and naval forces.

(2) There is no constitutional right to serve in the

armed forces.

(3) Pursuant to the powers conferred by section 8 of

article I of the Constitution of the United States, it lies

within the discretion of the Congress to establish quali-

fications for and conditions of service in the armed

forces.

(4) The primary purpose of the armed forces is to

prepare for and to prevail in combat should the need

arise.

(5) The conduct of military operations requires

members of the armed forces to make extraordinary sacri-

fices, including the ultimate sacrifice, in order to provide

for the common defense.

(6) Success in combat requires military units that

are characterized by high morale, good order and disci-

pline, and unit cohesion.

App. 66

(7) One of the most critical elements in combat

capability is unit cohesion, that is, the bonds of trust

among individual service members that make the combat

effectiveness of a military unit greater than the sum of the

combat effectiveness of the individual unit members.

(8) Military life is fundamentally different from

civilian life in that -

(A) the extraordinary responsibilities of

the armed forces, the unique conditions of mili-

tary service, and the critical role of unit cohe-

sion, require that the military community, while

subject to civilian control, exist as a specialized

society; and

(B) the military society is characterized by

its own laws, rules, customs, and traditions,

including numerous restrictions on personal

behavior, that would not be acceptable in civil-

ian society.

(9) The standards of conduct for members of the

armed forces regulate a member’s life for 24 hours each

day beginning at the moment the member enters military

status and not ending until that person is discharged or

otherwise separated from the armed forces.

(10) Those standards of conduct, including the Uni-

form Code of Military Justice, apply 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.

(11) The pervasive application of the standards of

conduct is necessary because members of the armed

tel

SS ee

App. 67

forces must be ready at all times for worldwide deploy-

ment to a combat environment.

(12) The worldwide deployment of United States

military forces, the international responsibilities of the

United States, and the potential for involvement of the

armed forces in actual combat routinely make it neces-

sary for members of the armed forces involuntarily to

accept living conditions and working conditions that are

often spartan, primitive, and characterized by forced inti-

macy with little or no privacy.

(13) The prohibition against homosexual conduct is

a longstanding element of military law that continues to

be necessary in the unique circumstances of military ser-

vice.

(14) The armed forces must maintain personnel pol-

icies that exclude persons whose presence in the armed

forces would create an unacceptable risk to the armed

forces’ high standards of morale, good order and disci-

pline, and unit cohesion that are the essence of military

capability.

(15) The presence in the armed forces of persons

who demonstrate a propensity or intent to engage in

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.

(b) POLICY. - A member of the armed forces shall be

separated from the armed forces under regulations pre-

scribed 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:

App. 68

(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 circum-

stances, is unlikely to recur; such conduct was

not accomplished by use of force, coercion, or

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 propen-

sity 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 accor-

dance 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 homo-

sexual acts.

(3) That the member has married or attempted to

marry a person known to be of the same biological sex.

Secretary of Defense shall ensure that the standards for

App. 69

enlistment and appointment of members of the armed

forces reflect the policies set forth in subsection (b).

(2) The documents used to effectuate the enlistment

or appointment of a person as a member of the armed

forces shall set forth the provisions of subsection (b).

(d) REQUIRED BRIEFINGS. - The briefings that mem-

bers of the armed forces receive upon entry into the

armed forces and periodically thereafter under section

937 of this title (article 137 of the Uniform Code of

Military Justice) shall include a detailed explanation of

the applicable laws and regulations governing sexual

conduct by members of the armed forces, including the

policies prescribed urder subsection (b).

(e) RULE OF CONSTRUCTION. — Nothing in subsection

(b) shall be construed to require that a member of the

armed forces be processed for separation from the armed

forces when a determination is made in accordance with

regulations prescribed by the Secretary of Defense that —

(1) the member engaged in conduct or made state-

ments for the purpose of avoiding or terminating military

service; and

(2) separation of the member would not be in the

best interest of the armed forces.

(f) DEFINITIONS. - In this section:

(1) The term “homosexual” means a person, regard-

less of sex, who engages in, attempts to engage in, has a

propensity to engage in, or intends to engage in homo-

sexual acts, and includes the terms “gay” and “lesbian”.

App. 70

(2) The term “bisexual” means a person who

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

engage in, or intends to engage in homosexual and het-

erosexual acts.

(3) The term “homosexual act” means -

(A) any bodily contact, actively under-

taken or passively permitted, between members

of the same sex for the purpose of satisfying

sexual desires; and

(%) any bodily contact which a reasonable

person would understand to demonstrate a pro-

pensity or intent to engage in an act described in

subparagraph (A).

(Added Pub. L. 103-160, div. A, title V, § 571(a)(1), Nov.

30, 1993, 107 Stat. 1670).

+ x *

IMPLEMENTATION OF SECTION; REGULATIONS;

SAVINGS PROVISION; SENSE OF CONGRESS

Section 571(b)-(d) of Pub. L. 103-160 provides that:

“(b) REGULATIONS. - Not later than 90 days after

the date of enactment of this Act [Nov. 30, 1993], the

Secretary of Defense shall revise Department of Defense

regulations, and issue such new regulations as may be

necessary, to implement section 654 of title 10, United

States Code, as added by subsection (a).

“(c) SAVINGS PROVISION. - Nothing in this sec-

tion or section 654 of title 10, United States Code, as

added by subsection (a), may be construed to invalidate

any inquiry, investigation, administrative action or pro-

ceeding, court-martial, or judicial proceeding conducted

App. 71

| before the effective date of regulations issued by the

Secretary of Defense to implement such section 654.

“(d) SENSE OF CONGRESS. - It is the sense of

Congress that —

“(1) the suspension of questioning con-

cerning homosexuality as part of the processing

of individuals for accession into the Armed

Forces under the interim policy of January 29,

1993, should be continued, but the Secretary of

Defense may reinstate that questioning with

such questions or such revised questions as he

considers appropriate if the Secretary deter-

mines that it is necessary to do so in order to

effectuate the policy set forth in section 654 of

title 10, Urited States Code, as added by subsec-

tion (a); and

“(2) the Secretary of Defense should con-

sider issuing guidance governing the circum-

stances under which members of the Armed

Forces questioned about homosexuality for

administrative purposes should be afforded

warnings similar to the warnings under section

831(b) of title 10, United States Code (article

31(b) of the Uniform Code of Military Justice).”

App. 72

APPENDIX K

Department of Defense

DIRECTIVE

December 21, 1993 #

NUMBER 1332.30

SUBJECT: Separation of Regular Commissioned Officers:

References: (a) DoD Directive 1332.30, “Separation of

Regular Commissioned Officers for

Cause,” February 12, 1986 (hereby can-

celed)

(5) Chapter 60 and Sections 618, 630, 654,

827, and 831 of title 10, United States

Code

Drug Abuse by DoD Personnel,”

August 25, 1980

(d) DoD 5200.2-R, “DoD Personnel Secu-

rity Program,” January 1987, autho-

rized by DoD Directive 5200.2, May 6,

1992

(e) Sections 801-940 of title 10, United

States Code, “Uniform Code of Military

Justice”

(f) DoD Instruction 5505.8, “Investigations

of Sexual Misconduct by the Defense

Criminal Investigative Organizations

and Other DoD Law Enforcement

Organizations,” February 28, 1994

App. 73

A. REISSUANCE AND PURPOSE

This Directive:

1. Reissues reference (a)

2. Implements Chapter 60 and Section 630 of refer-

ence (b) to update policy, responsibilities, and procedures

governing the administrative separation of commissioned

officers for substandard performance of duty, for an act

or acts of misconduct or moral or professional dereliction,

or in the interest of national security.

3. Implements Chapter 60 and Section 630 of refer-

ence (b) on the discharge of regular commissioned offi-

cers with less than 5 years active commissioned service in

certain circumstances.

B. APPLICABILITY AND SCOPE

This Directive:

1. Applies to the Office of the Secretary of Defense

(OSD) and to the Military Departments. The term “Mili-

tary Services,” as used herein, refers to the Army, the

Navy, the Air Force, and the Marine Corps.

2. Applies to regular commissioned officers of the

Military Services.

3. Does not apply to commissioned warrant officers

and retired commissioned officers of the Military Ser-

vices.

App. 74

[2]

DEFINITIONS

Terms used in this Directive are defined in enclosure

POLICY

1. It is DoD policy to:

a. Promote the readiness of the Military

Services by maintaining high standards of con-

duct and performance. An individual is permit-

ted to serve as a commissioned officer in the

Military Services because of the special trust

and confidence the President and the nation

have placed in his or her patriotism, valor, fidel-

ity, and competence. Commissioned officers are

expected to display responsibility commensu-

rate to this special trust and confidence and to

act with the highest integrity at all times.

b. Judge the suitability of persons to serve

in the Armed Forces on the basis of their con-

duct and their ability to meet required standards

of duty

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