# Petition for Writ of Certiorari — Richenberg v. Cohen > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0589%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1997 - **Citation:** 522 U.S. 807 ## Text aaa Soprems Osurt, U.8. { 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, V. 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 NO Al Xs i 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? li 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. 65 72 iv 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 Vv 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 vi 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. 7 . 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). 2 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. nn 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 3 + 7 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). 10 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 11 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 12 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)). 13 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 14 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 15 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 16 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: TT 17 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. 18 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. © See, e.g., Pet. COA App. 747 (Senate Hearings; Sen. Lott 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 19 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). 20 (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 pete’ ATA aN HES Meena 21 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. 22 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. i rreeeneeeniienemnmauadild Na Sar el lige 23 (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 24 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 25 “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 26 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 27 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 28 “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 EE 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 ee 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 ee 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. (c) Equal Protection 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 hom [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0589%3A1. Public record. Not legal advice.