In the
SUPREME COURT OF THE UNITED STATES
October Term, 1995
------------------
Paul G. Thomasson,
Petitioner,
v.
William J. Perry, Secretary of Defense, and
John H. Dalton, Secretary of the Navy,
Respondents.
------------------
On Petition for Writ of Certiorari to the
United States Court of Appeals
for the Fourth Circuit
------------------
PETITION FOR A WRIT OF CERTIORARI
------------------
Mark H. Lynch
Allan B. Moore*
Covington & Burling
1201 Pennsylvania Avenue
NW
Washington, DC 20044
(202) 662-6000
Attorneys for Petitioner
* Counsel of Record
1. Whether, either on its face or as applied to petitioner, the government's "Don't Tell" policy, which restricts the freedom of homosexual service members to state their sexual orientation, constitutes an impermissibly overbroad and content-based restriction of speech in violation of the First Amendment.
2. Whether, either on its face or as applied to petitioner, the government's policy on military service by homosexuals, which purports to further the military's interest in "unit cohesion," gives effect to invidious prejudice and illegitimately and irrationally discriminates against homosexual service members who state their sexual orientation in violation of the equal protection guarantee of the Fifth Amendment.
3. Whether, either on its face or as applied to petitioner, the government's policy on military service by homosexuals imposes an improper or irrebuttable presumption of misconduct against homosexual service members who disclose their sexual orientation, in violation of the equal protection and due process guarantees of the Fifth Amendment and the Administrative Procedure Act.
4. Whether the court of appeals erred in upholding petitioner's discharge from the Navy when a majority of the court concluded that the regulations that were applied to petitioner are unlawful.
TABLE OF AUTHORITIES
Able v. United States, 880 F. Supp. 968
(E.D.N.Y. 1995) 1 2 3
4 5 6
Austin v. Michigan State Chamber of Commerce,
494 U.S. 652 (1990) 1
Beller v. Middendorf, 632 F.2d 788
(9th Cir. 1980), cert. denied,
452 U.S. 905 (1981) 1
Ben-Shalom v. Marsh, 881 F.2d 454
(7th Cir. 1989), cert. denied,
494 U.S. 1004 (1990) 1
Bowen v. Georgetown Univ. Hosp.,
488 U.S. 204 (1988) 1
Brown v. Glines,
444 U.S. 348 (1980) 1
Cammermeyer v. Aspin, 850 F. Supp. 910
(W.D. Wash. 1994) 1
Chappell v. Wallace,
462 U.S. 296 (1983) 1
City of Cleburne v. Cleburne Living Ctr., Inc.,
473 U.S. 432 (1985) 1
Cleveland Bd. of Educ. v. LaFleur,
414 U.S. 632 (1974) 1
Dahl v. Secretary of the United States Navy,
830 F. Supp. 1319 (E.D. Cal. 1993) 1 2
Dronenburg v. Zech,
741 F.2d 1388 (D.C. Cir. 1984) 1
Elzie v. Aspin,
841 F. Supp. 439 (D.D.C. 1993) 1
44 Liquormart, Inc. v. Rhode Island,
No. 94-1140 (U.S. May 13, 1996) 1
Gay Alliance of Students v. Matthews,
544 F.2d 162 (4th Cir. 1976) 1
Gay Students Org. v. Bonner,
509 F.2d 652 (1st Cir. 1974) 1
Greer v. Spock,
424 U.S. 828 (1976) 1
Holmes v. California Army Nat'l Guard,
920 F. Supp. 1510 (N.D. Cal. 1996) 1
Hurley v. Irish-American Gay, Lesbian and Bisexual Group,
115 S. Ct. 2338 (1995) 1
Jacobson v. United States,
503 U.S. 540 (1992) 1
Korematsu v. United States,
323 U.S. 214 (1944) 1
Meinhold v. United States Dep't of Defense,
34 F.3d 1469, 1479 (9th Cir. 1994) 1
2 3
Palmore v. Sidoti,
466 U.S. 429 (1984) 1
Philips v. Perry,
883 F. Supp. 539 (W.D. Wash. 1995) 1
Plessy v. Ferguson,
163 U.S. 537 (1896) 1
Powell v. Texas,
392 U.S. 514 (1968) 1
Pruitt v. Cheney,
963 F.2d 1160 (9th Cir.), cert. denied, 506 U.S. 1020 (1992)
1
Rich v. Secretary of the Army,
735 F.2d 1220 (10th Cir. 1984) 1
Richenberg v. Perry,
909 F. Supp. 1303 (D. Neb. 1995) 1
Richenberg v. Perry,
73 F.3d 172 (8th Cir. 1995) 1 2
Romer v. Evans,
No. 94-1039 (U.S. May 20, 1996) 1 2
3 4 5 6
Rostker v. Goldberg,
453 U.S. 57 (1981) 1 2
Rubin v. Coors Brewing Co.,
115 S. Ct. 1585 (1995) 1
Selland v. Perry,
905 F. Supp. 260 (D. Md. 1995) 1
Steffan v. Perry,
41 F.3d 677 (D.C. Cir. 1994) (en banc),
vacating Steffan v. Perry, 8 F.3d 57 (1993) 1
Texas v. Johnson,
491 U.S. 397 (1989) 1 2
Thomasson v. Perry,
895 F. Supp. 820 (E.D. Va. 1995),
aff'd, 80 F.3d 915 (4th Cir. 1996) 1
2
Thorne v. United States Dep't of Defense,
916 F. Supp. 1358 (E.D. Va. 1996) 1
United States v. Robel,
389 U.S. 258 (1967) 1
Van Ooteghem v. Gray,
628 F.2d 488 (5th Cir.1980), on reh'g en banc,
654 F.2d 304 (1981), cert. denied, 455 U.S. 909 (1982)
1
Watkins v. United States Army,
875 F.2d 699 (9th Cir. 1989), cert. denied,
498 U.S. 957 (1990) 1
Watson v. Perry,
918 F. Supp. 1403 (W.D. Wash. 1996) 1
Weiss v. United States,
114 S. Ct. 752 (1994) 1
Woodward v. United States,
871 F.2d 1068 (Fed. Cir. 1989), cert. denied,
494 U.S. 1003 (1990) 1
Constitutional Provisions,
Statutes, and Regulations
5 U.S.C. § 706 o
10 U.S.C. § 654 passim
10 U.S.C. § 925 o
28 U.S.C. § 1254(1) o
U.S. Const. amend. I
U.S. Const. amend. V
U.S. Const. art. III
Department of Defense Directive No. 1332.30 passim
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1995
___________
No. 96-
___________
PAUL G. THOMASSON,
Petitioner,
v.
WILLIAM J. PERRY, Secretary of Defense,
and JOHN H. DALTON, Secretary of the Navy,
Respondents.
___________
Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Fourth Circuit
___________
PETITION FOR A WRIT OF CERTIORARI
___________
Paul G. Thomasson respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Fourth Circuit in this case.
The opinion of the court of appeals (App., 1a-85a) is reported at 80 F.3d 915. The opinion of the district court (App., 86a-110a) is reported at 895 F. Supp. 820. The findings and recommendation of the Board of Inquiry (App., 114a-15a) and the final decision of Respondent Dalton (App., 111a-13a) are not reported.
The judgment of the court of appeals, which decided on its own motion to hear the case en banc before the original panel rendered a decision (App., 116a-17a), was entered on April 5, 1996 (App., 1a-85a). The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1).
CONSTITUTIONAL, STATUTORY, AND REGULATORY PROVISIONS INVOLVED
The First and Fifth Amendments to the United States Constitution (App., 118a); the relevant provisions of the Administrative Procedure Act ("APA"), 5 U.S.C. § 706 (App., 119a); Section 571 of the National Defense Authorization Act of 1994, 10 U.S.C. § 654 (App., 120a-25a); and Department of Defense ("DoD") Directive No. 1332.30 (App., 126a-60a) are set forth in the appendix.
This case challenges the constitutionality, both on its face and as it has been applied to petitioner, of the federal government's recently codified policy regarding military service by homosexual citizensÄa policy known colloquially as "Don't Ask, Don't Tell, Don't Pursue."
On November 30, 1993, with the prior support and approval of the President, Congress enacted the National Defense Authorization Act of 1994 (the "Act"), which codified the "Don't Ask, Don't Tell, Don't Pursue" policy. 10 U.S.C. § 654 (App., 120a-25a).
Under the Act, a homosexual orientation, in and of itself, is not a bar either to induction into the armed forces or to continued military service. Id., § 654(b)-(c) (App., 122a-23a). On the other hand, a service member's statement that he or she is a homosexual is, without more, a sufficient basis for discharge. Id., § 654(b)(2) (App., 122a). A service member who states that he or she is a homosexual can avoid discharge only if he or she rebuts a statutory presumption, which requires proof of a negative proposition: the service member must "demonstrate[] that he or she is not a person who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts." Id.
The Act does not define the term "propensity," but it defines a "homosexual act" in broad language to mean:
(A) any bodily contact, actively undertaken or passively permitted, between members of the same sex for the purpose of satisfying sexual desires; and
(B) any bodily contact which a reasonable person would understand to demonstrate a propensity or intent to engage in an act described in subparagraph (A).
Id., § 654(f)(3) (App., 124a).
On December 22, 1993, the Department of Defense ("DoD") issued two new directives to give effect to the Act. See DoD Dir. No. 1332.30 (App., 126a-60a). [1]/ These directives took effect on February 28, 1994. App., 130a. Like the Act, the new directives do not regard sexual orientation as a disqualification for military service; in fact, they expressly provide that "[a] member's sexual orientation is considered a personal and private matter, and is not a bar to continued service . . . unless manifested by homosexual conduct." DoD Dir. No. 1332.30, Enc. 2, ¶ C (App., 135a).
Notably, however, the new directives define certain "statements" to be "homosexual conduct." See DoD Dir. No. 1332.30, Enc. 2, ¶ C (App., 135a) ("[h]omosexual conduct includes . . . a statement by a member that demonstrates a propensity or intent to engage in homosexual acts . . .") (emphasis added). Specifically, under DoD Directive No. 1332.30, the statement "I am gay" constitutes actionable "homosexual conduct"Äan all-encompassing term that is defined to include both "statements" that one is homosexual and "homosexual acts." Id. (App., 136a-37a). Thus, notwithstanding their assurance that a homosexual orientation is not a bar to continued military service, the directives authorize the discharge of a service member solely on the basis of his or her statement that he or she is a homosexualÄa mere expression of that orientationÄwithout any showing of any forbidden conduct of any kind. Id. (App., 136a-37a).
In addition, DoD Directive No. 1332.30 defines the term "propensity," which is left undefined in the Act, in the following terms:
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. No. 1332.30, Enc. 1, ¶ 13 (App., 132a). Finally, the Directive specifies factors to be considered "[i]n determining whether an officer [who states that he or she is a homosexual] has successfully rebutted the [statutory] presumption," including, without limitation, evidence regarding: "(1) [w]hether the officer has engaged in homosexual acts; (2) [t]he officer's credibility; (3) [t]estimony from others about the officer's past conduct, character, and credibility; (4) [t]he nature and circumstances of the officer's statement; and (5) [a]ny other evidence relevant to whether the officer is likely to engage in homosexual acts." Id., Enc. 2, ¶ C.1.b(1)-(5) (App., 137a). [2]/
On March 2, 1994, petitioner, who was then a commissioned lieutenant on active duty in the United States Navy, delivered a letter to four Navy admirals for whom he had served to inform them, as a statement of principle and personal integrity, that "I am gay." C.A. App., 60-61. Solely on the basis of this statement, and notwithstanding his exemplary record, the Navy commenced involuntary separation proceedings against him, and on June 15, 1995, petitioner was discharged from the service.
Until his discharge, petitioner had served in the Navy for nearly 10 years. Throughout this period, which included both operational and staff assignments both in the United States and overseas, petitioner distinguished himself as an outstanding officer and aviator. See generally C.A. App., 345-58. He consistently received the highest possible evaluations and commendations from his commanding officers and superiors, who have included some of the nation's highest-ranking military officials, and he was considered a leading candidate to rise to the rank of admiral. See id.
The views of Rear Admiral Lee F. Gunn are typical. Admiral Gunn, who was one of the recipients of petitioner's March 1994 letter, was the senior Naval officer responsible for implementing the "Don't Ask, Don't Tell" policy at the time of its formulation. He was also one of four admirals for whom petitioner served as a personal aide. In his estimation:
Lieutenant Thomasson is . . . a true "front runner" who should be groomed for the most senior leadership in tomorrow's Navy. In the meantime, if you are in your right mind, you want Paul Thomasson working for you, whether the environment is staff or operational. . . . Lt. Thomasson has genuine flag potential.
C.A. App., 234 (emphasis in original); see also id., 248-49 (Gunn declaration).
Rear Admiral Albert H. Konetzni, another recipient of petitioner's letter and the senior Naval officer who succeeded Admiral Gunn in overseeing the policy, has similarly described petitioner's performance. See id., 347, 353-54. Petitioner began serving for Admiral Konetzni on February 1, 1994, and he continued to serve the Admiral until his discharge 16½ months later. In a fitness report submitted nearly one year after petitioner first stated that he is gay, Admiral Konetzni wrote that petitioner "is one of the finest junior officers I have ever had the pleasure to serve with" and observed that he "[c]ommands the respect of his subordinates and seniors alike through honesty, integrity, and forthright communication." C.A. App., 382. In a final fitness report submitted on the day of petitioner's discharge, the Admiral again described petitioner's performance as "absolutely outstanding." C.A. Br. for App'nt, Addendum E. [3]/
The Navy commenced proceedings against petitioner on March 9, 1994, solely as a result of his statement of his sexual orientation, as expressed in his March 2, 1994 letter. See C.A. App., 58-59. Ten weeks later, a three-member Board of Inquiry convened to hear the Navy's case. Id., 342.
As the district court later found, "during its phase of the [Board's] proceedings, the Navy acknowledged that Lt. Thomasson had attained an `enviable' service record" and "also acknowledged that there was no evidence that Lt. Thomasson had engaged in any `homosexual acts.'" App., 91a (citing administrative record). Instead, the Navy based its case on the proposition that petitioner's "statement" that he is gay was, in and of itself, forbidden "homosexual conduct" within the meaning of the policy. See C.A. App., 343 (citing administrative record). In response, as the district court later observed, "Lt. Thomasson submitted evidence of his service record, expert testimony regarding the meaning and nature of both homosexuality and the military's policy on homosexuality, and written and live testimony from 15 witnesses with whom he had served and worked over the course of his Navy career. The Navy did not introduce any rebuttal evidence or dispute the substance of any of Lt. Thomasson's evidence." App., 91a. [4]/ The Navy witnesses who testified spanned a broad spectrum of ranks, personal backgrounds, and military experiences and uniformly indicated support and respect for petitioner and a continued willingness to serve with him.
On this record, the Board of Inquiry unanimously recommended that petitioner be honorably discharged. App., 114a-15a. The Board concluded that petitioner's statement of his sexual orientation fit the policy's prohibitory definition: it indicated that he "engages in, attempts to engage in, or has a propensity or intent to engage in homosexual acts." Specifically, the Board found "by a preponderance of the evidence" that petitioner "has failed to demonstrate acceptable qualities of leadership . . . as evidenced by statements that he made which are conduct within the meaning of [the policy] and the presumption of homosexual conduct thereby raised is not rebutted." Id. (emphasis added).
Thereafter, a Board of Review unanimously concurred, without comment, in the Board of Inquiry's recommendation (C.A. App., 295), and on January 13, 1995, Respondent Dalton formally accepted the recommendation of the Chief of Naval Personnel that petitioner be discharged (App., 111a-13a).
On February 27, 1995, petitioner commenced this action with an accompanying motion for immediate relief. The district court (E.D. Va. Hilton, J.) initially enjoined respondents from discharging petitioner (C.A. App., 330), but on June 8, 1995, after expedited consideration of the merits, the court granted summary judgment for respondents on all claims. App., 110a.
In its opinion, the district court declined to enter specific findings of fact or to address the evidentiary record. See App., 86a-110a. It thus effectively treated the case as a purely facial challenge. In addressing petitioner's claims, the court first rejected his First Amendment arguments, holding that the policy did not impermissibly burden speech but rather authorized the permissible "evidentiary use" of a statement of sexual orientation. App., 92a-97a.
The court then addressed petitioner's equal protection claims. Here, the court professed a fundamental "lack of competence . . . to second-guess decisions made by Congress in the military context," and it therefore accepted at face value the justifications proffered by the government to defend the policy. Id., 101a. Accordingly, without reference to the record (and without regard to the fact that the Act expressly allows undeclared homosexuals to serve), the court held that "[t]he policy . . . is not based on prejudice but on the military's need to address the legitimate concern that service by homosexuals in the military will adversely impact unit cohesion and military readiness." Id., 105a. The court further held that the policy is rationally designed to serve this purpose. Id., 105a-08a. Finally, the court rejected petitioner's due process and APA claims. Id. 108a-10a.
In reaching its decision, the court declined to address the recent decision in Able v. United States, 880 F. Supp. 968 (E.D.N.Y. 1995), appeal pending, No. 95-6111 (2d Cir.), the only other case at the time to have addressed the Act. Two months before the district court's ruling here, the Able court held the Act facially unconstitutional for many of the same reasons advanced by petitioner, and it permanently enjoined the government from discharging the six Able plaintiffs.
On June 12, 1995, the Navy ordered that petitioner be separated, and three days later, after unsuccessfully seeking an injunction pending appeal, petitioner was officially discharged. Although it denied interim relief, the court of appeals (Luttig, Michael, Motz, JJ.) ordered expedited briefing of the merits, and on September 12, 1995, the court heard oral argument. Eight days later, the court announced that it had voted, sua sponte, to rehear the case en banc (App., 116a-17a), and on December 5, 1995, the parties reargued the case before the full court. On April 5, 1996, the court issued its decision. App., 1a-85a. By a vote of 9-4, it affirmed the judgment of the district court in a decision that included four separate opinions. Id. [5]/
Writing for the majority, Chief Judge Wilkinson rested the court's decision on the perceived need for plenary judicial deference to the shared judgment of "the coordinate branches of our government" in military affairs. Id., 13a. The court thus declined "to upset . . . [the] carefully crafted national political compromise" embodied in the Act and refused "to award [to petitioner] by judicial decree what was not achievable by political consensus." Id., 8a, 12a. [6]/
Although it grounded its decision on notions of judicial deference, the court also addressed and rejected several specific arguments that petitioner had advanced in support of his claims. First, the court rejected his assertion that the policy burdens a fundamental right (i.e., the freedom of speech) and rests on an inherently suspect classification (i.e., sexual orientation), thereby warranting heightened scrutiny on two separate grounds. Id., 22a-23a. The court found instead that the policy targets homosexual conduct, not speech or sexual orientation, and in so doing, only requires rational-basis review. Id., 23a.
Applying such review, the court held that the policy does not violate the guarantee of equal protection. In this regard, like the district court, the court of appeals accepted the government's proffered "unit cohesion" rationale at face value, declining to inquire whether the record shows that the policy's rationale is based, in fact, on illegitimate and invidious prejudice. Id., 24a-26a.
The court similarly concluded that the policy operates in a rational manner. Here, the court rebuffed three central arguments advanced by petitioner. First, it rejected petitioner's contention that it is irrational to presume, on the basis of his statement and in light of his service record, that he will violate Navy regulations and engage in forbidden conduct. Id., 26a-28a. Second, the court likewise rebuffed petitioner's argument that it is irrational to treat declared homosexuals differently from undeclared homosexuals solely on the basis of the formers' speech. Id., 28a. Third, the court denied (and largely declined to address) petitioner's contention that the policy impermissibly discriminates between heterosexuals and homosexuals in its expansive and unevenhanded definition and treatment of "homosexual conduct" and "homosexual acts." Id., 24a-28a. [7]/
Turning to petitioner's First Amendment challenge, the court similarly held, for many of the same reasons, that the district court's ruling was correct. Here, the court concluded that petitioner "misinterprets the basic purpose of the policy" because "[t]he statute does not target speech declaring homosexuality" but rather "targets homosexual acts and the propensity or intent to engage in homosexual acts, and permissibly uses the speech as evidence." Id., 29a. In so ruling, the court rejected petitioner's contrary argument that because the policy expressly states that a homosexual orientation is not a bar to continued military service, a mere verbal acknowledgment of that orientation necessarily lacks meaningful evidentiary value, and the regulation of such statements constitutes prohibited overbreadth. Id., 30a-31a. The court likewise rejected petitioner's claim that the policy impermissibly restricts core First Amendment speech on the basis that others may find that speech offensive. Id., 32a-34a.
Finally, like the district court, the court of appeals summarily rejected petitioner's due process and APA claims, holding that the presumption that he engages in forbidden conduct, on the basis of his statement of his sexual orientation, was neither impermissible nor irrebuttable, and that the policy was properly applied. Id., 35a-36a.
Despite their subscription to the majority opinion, six members of the court, who expressly joined in that opinion, also joined in Judge Luttig's separate concurrence, which starkly contrasts with and contradicts the majority's reasoning in two critical respects. First, while the majority rested its holding on the need for plenary judicial deference to "the military powers of [both] Congress and the President" (id., 15a), the concurring group concluded that the court should not grant any such deference to the Executive Branch (id., 36a-38a). In the opinion of these six judges, such deference is inappropriate here because the DoD directives conflict with the Act.
As Judge Luttig opined, the directives impermissibly "creat[e] a sanctuary for homosexuals within the military" by purporting to allow some known homosexuals to serve by rebutting the Act's presumption when, in fact, Congress plainly intended to bar all known homosexuals from service and never meant for the presumption to be rebuttable, absent proof that the speaker is not, in truth, a homosexual. Id., 37a; see generally id., 36a-71a. Thus, Judge Luttig (and the five judges who joined him) "would simply invalidate the Administration's regulation as in excess of its statutory authority" and "[t]hen, having done so, . . . would sustain the policy that was actually enacted into law as a permissible exercise of Congress' constitutional authority `[t]o make Rules for the Government and Regulation' of the military." Id., 37a (citing U.S. Const. art. I, § 8, cl. 14) (emphasis added). [8]/
Second, while the majority upheld the policy on the ground advanced by respondentsÄi.e., that the Act validly "targets homosexual acts and the propensity or intent to engage in homosexual acts" and does not wrongfully burden speech or invidiously discriminate (id., 29a)Äthe concurring group expressly repudiated this analysis. Rather, they agreed with petitioner:
As Lt. Thomasson has steadfastly maintained, the statute, and the policy it embodies, is not at all conduct-based in the sense now argued by the Executive Branch, assertedly on behalf of the Congress. The statute requires the discharge of homosexual service members who merely say that they are homosexual or otherwise evidence their homosexuality, regardless of whether they have actually engaged in homosexual conduct or are likely to engage in any such conduct.
Id., 37a. As Judge Luttig explained, and as petitioner had argued, the apparent concern of policymakers was not, as respondents had insisted, with any perceived risk of "homosexual conduct" (in any common-sense meaning of that term), but rather with the perceived threat to "unit cohesion" that knowledge of the mere presence of an open homosexual might pose within a given unit. Id., 39a-66a.
The concurring group thus expressly agreed with petitioner's core contention in this case: that respondents' persistent "`focus on conduct [is but] a lawyer-driven, pretextual afterthought.'" Id., 47a (quoting C.A. Br. for App'nt). The concurring group, however, rejected the conclusion that petitioner deduced therefrom: that the policy is thus unconstitutional. Instead, they concluded that the policy, as properly understood, still withstands constitutional scrutiny because it is entirely permissible for the government to target homosexuals on the basis of their speech and sexual orientation per se. Id., 66a-71a.
Finally, in a vigorous dissent by Judge Hall, four members of the court argued that the policy as a whole, both on its face and particularly as applied to petitioner, is unconstitutional. Id., 71a-85a. These judges rejected the majority's conclusion that there is no role for the courts to play in a constitutional challenge to a military policy of this sort. Id., 71a-74a.
Like the concurring group, the dissenters rejected respondents' contention that the policy is "conduct-based" in any meaningful sense of that term; unlike the concurring group, however, they agreed with petitioner that the policy's suppression of speech is unconstitutional, under both the First and Fifth Amendments. Id., 76a-85a. As Judge Hall opined, a restriction on speech by gay and lesbian service membersÄeither on the basis of the perceived discomfort of heterosexuals or on the basis of a generalized presumption of misconduct by those homosexualsÄis patently illegitimate and irrational. Id. The dissent thus concluded:
Lt. Thomasson has been declared unfit to defend our country based on nothing more than an expression of his state of mind. The expression was not illegal, and the fact admitted is not a ground for discharge. His record of service is superb, and the Navy presented absolutely no evidence that he has violated any military rule of conduct in any way at any time, and absolutely no evidence that his exemplary record is not indicative of his likely future behavior.
Id., 84a.
REASONS FOR GRANTING THE PETITION
As the lower courts' treatment of the case demonstrates, this case presents questions of exceptional importance. At issue is whether the government may restrict the freedom of an accomplished and dedicated military officer to utter a fundamental statement about who he is, solely on the basis of the anticipated discomfort of others, and thereby strip him of the ability to dispel the stereotypes and combat the prejudices from which he (and others similarly situated) routinely suffer.
Because it ultimately asks more questions than it answers, the decision of the court of appeals threatens to spawn considerable confusion and disarray. Already, the several lower courts that have addressed these questions have reached conflicting results, and the number of comparable legal challenges that are following in the wake of this case is proliferating at a rapid rate. Thus, this case presents a timely and important opportunity for guidance from this Court. Most importantly, though, the decision below is erroneous on matters of fundamental and far-reaching importance, and the decision stands in direct conflict with prior decisions of this Court, including, most recently, the Court's decision this Term in Romer v. Evans, No. 94-1039 (U.S. May 20, 1996).
The decision below has overriding constitutional importance. Under any level of constitutional scrutiny, it is erroneous and should not be permitted to stand.
1. As the dissent below observed (App., 76a-77a), this Court has recognized that a governmental policy based on invidious or irrational prejudice cannot serve a legitimate governmental purpose. See, e.g., City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 447-50 (1985). As the Court has explained:
Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect. "Public officials sworn to uphold the Constitution may not avoid a constitutional duty by bowing to the hypothetical effects of private . . . prejudice that they assume to be both widely and deeply held."
Palmore v. Sidoti, 466 U.S. 429, 433 (1984) (citation omitted).
Recently, this Court had its first occasion to apply this principle in the context of sexual orientation. In Romer v. Evans, No. 94-1039 (U.S. May 20, 1996), the Court invalidated a state constitutional amendment, which had been adopted through a statewide referendum, on the ground that the text, surrounding circumstances, and operation of the amendment "raise[d] the inevitable inference that the disadvantage [that it] imposed [was] born of animosity toward the class of persons affected [i.e., gays and lesbians]." Slip op. at 13. As the Court observed, "`[i]f the constitutional conception of "equal protection of the laws" means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.'" Id. (quoting United States Dep't of Agric. v. Moreno, 413 U.S. 528, 534 (1973)) (emphasis in original).
In this case, as in Romer (and as the dissent below noted), "[t]here is a great deal of evidence that the statute was motivated by a desire to accommodate prejudice against homosexuals." App., 77a. Indeed, respondents have admitted that homosexual service members, including petitioner in particular, can and do serve honorably and effectively in the armed forces and have further admitted, with considerable candor, that their policy is based on the perceived prejudices of heterosexuals. Id., 77a-79a.
The majority below nowhere disputed these facts, and Judge Luttig expressly acknowledged in his concurrence that the Act's motivating concern is the anticipated adverse effect that knowledge of a homosexual's mere presence might have on "unit cohesion" (id., 36a-71a). That is to say, the Act requires the discharge of a known homosexual, not because of any deficiencies in his abilities or conduct, but rather because of an expectation (which is devoid of empirical support) that some in the heterosexual majority will be so uncomfortable serving in his presence that they will be unable to perform their sworn duties. Bowing to "unit cohesion," as so defined, is constitutionally impermissible. See Romer, slip op. at 13-14.
2. As the dissent and other courts have observed, the policy also operates in an irrational and discriminatory fashion. It thereby fails the second half of the rational-basis test as well as the first.
For example, while the policy applies a presumption of misconduct to declared homosexuals, it applies no such presumption to undeclared homosexuals, who may serve in any duty station in the armed forces. See 10 U.S.C. § 654 (App., 120a-25a); see also Dahl v. Secretary of the United States Navy, 830 F. Supp. 1319, 1334 (E.D. Cal. 1993) (finding this distinction "untenable").
Similarly, while the policy purports to target declared homosexuals out of a professed need for preventive safeguards against "homosexual acts," it will excuse the actual performance of such "homosexual acts" and permit the service member's retention, if the service member establishes that he or she is a heterosexual and thus, lacks the "propensity" to engage in such acts again. See 10 U.S.C. § 654(b)(1)(A)-(E) (App., 122a). [9]/
Most peculiarly of all perhaps, while the policy expressly provides that the simple statement "I am gay" is, by itself, a "basis for discharge," it also expressly provides that each of the following is not a valid basis for discharge: "[1] going to a gay bar, [2] possessing or reading homosexual publications, [3] associating with known homosexuals, or [4] marching in a gay rights rally in civilian clothes." DoD Dir. No. 1332.30, Enc. 8, ¶¶ C.2.b, C.3.d (App., 157a-58a). According to the DoD Directive, "[s]uch activity, in and of itself, does not provide evidence of homosexual conduct." Id., 158a. In fact, such activity does not even constitute "credible information" on which to initiate an inquiry into whether there is a "basis for discharge." Id. Thus, while homosexuals can serve and can even engage in a variety of expressive conduct that can make their sexual orientation clear to their unit mates, they cannot say "I am gay."
In all of these respects, the Act violates not only the Constitution's equal protection guarantees, but also its First Amendment guarantees. Although it is settled that First Amendment rights may be circumscribed in the military context, this Court previously has upheld military restrictions on speech only when they "protect a substantial Government interest unrelated to the suppression of free expression" and 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 (1976). Never has the Court suggested that the government may "enact discriminatory legislation because it desires to insulate heterosexual servicemembers from statements that might excite their prejudices." Able, 880 F. Supp. at 980.
On the contrary, "[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." Texas v. Johnson, 491 U.S. 397, 414 (1989); see also 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 individuals in the community, and to support . . . like men and women" merit First Amendment protection); Van Ooteghem v. Gray, 628 F.2d 488, 490-93 (5th Cir. 1980) (gay public employee's statement of sexual orientation merited core First Amendment protection), on reh'g en banc, 654 F.2d 304 (1981), cert. denied, 455 U.S. 909 (1982).
Here, however, the government has suppressed petitioner's ability to state that he is gay, not because of any concern with that factÄindeed, respondents have expressly disclaimed that a homosexual orientation is "a bar to continued [military] service" (DoD Dir. No. 1332.30, Enc. 2, ¶ C (App., 135a))Äbut rather because of the expected adverse reaction that some heterosexual listeners may have to the mere knowledge and expression of that fact (id., 120a-22a).
Nor can the policy be defended on the ground that it is a narrowly tailored preventative measure against forbidden conduct. At a minimum, the regulation of speech about sexual orientation on the basis of a generalized fear that it indicates a propensity to break rules regarding sexual conduct "constitutes prohibited overbreadth." Gay Alliance of Students v. Matthews, 544 F.2d 162, 166-67 (4th Cir. 1976) (restriction of homosexuals' First Amendment activities on the basis of their supposed propensity to engage in illegal conduct violated free speech and equal protection guarantees). The "[m]ere `undifferentiated fear or apprehension' of illegal conduct is not enough to overcome First Amendment rights, and speculation that individuals might at some time engage in illegal activity is insufficient to justify regulation [of First Amendment activity] by the state." Gay Students Org. v. Bonner, 509 F.2d 652, 662 (1st Cir. 1974) (quoting Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 508 (1969)).
Indeed, the military already has comprehensive and evenhanded regulations of sexual conduct, and respondents have made no showing that those regulations are inadequate to the task. The new policy simply adds a discriminatory and overbroad, content-based restriction on speech. See Rubin v. Coors Brewing Co., 115 S. Ct. 1585 (1995) (invalidating a very similarly structured law where, even assuming that the purported prophylactic purpose of the law served a substantial governmental interest, the statute could not "directly and materially advance its asserted interest because of the overall irrationality of the regulatory scheme" and further holding that the scheme was impermissibly overbroad); see also 44 Liquormart, Inc. v. Rhode Island, No. 94-1140, slip op. at 22-28 (U.S. May 13, 1996) (plurality opinion) (stating that "government may not suppress speech as easily as it may suppress conduct, and that speech restrictions cannot be treated as simply another means that the government may use to achieve its ends" in regulating conduct).
The court of appeals likewise erred in concluding that petitioner's First Amendment and equal protection challenges to the Act are only subject to rationality review. See Rostker, 453 U.S. at 69-71 (declining to articulate a different level of "scrutiny" for constitutional challenges that arise in the military context). Because the policy imposes a restraint on the ability of gay and lesbian service members (but only gay and lesbian service members) to state their sexual orientation, it imposes a class-based and content-based restriction on speech. This Court has repeatedly held that laws that burden the exercise of First Amendment freedoms by particular individuals or groups are subject to strict scrutiny, whether or not such laws implicate a suspect classification. See, e.g., Austin v. Michigan State Chamber of Commerce, 494 U.S. 652, 666 (1990).
In addition, as petitioner established through undisputed evidence, the Act also imposes a "suspect classification," as that term is understood under the tests traditionally recognized by this Court, because it disadvantages a discrete and insular minority and discriminates on the basis of an illegitimate consideration: sexual orientation. See C.A. App., 418-89; C.A. Br. for Appn't, 34-36. [10]/
Finally, the court of appeals also erred in failing to recognize that the Act, particularly as applied here, violates due process and the APA, and that the court's own logic required reversal.
1. On its face, the Board of Inquiry's one-page report demonstrates that the Act's supposedly rebuttable presumption was understood and applied in an irrebuttable manner: the Board found that petitioner's statement of his sexual orientation was, in and of itself, "homosexual conduct" within the meaning of the policy and that "the presumption of homosexual conduct thereby raised" was not rebutted. App., 114a. This reasoning is circular. The statement that triggered the presumption was taken as proof of the fact presumed. See Able, 880 F. Supp. at 976 (so holding); see also Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 644-48 (1974) (irrebuttable presumption violated due process).
That the policy operates in this manner is not surprising, given that the policy burdens the challenged service member with the effectively impossible task of proving the absence of a "propensity." However, even if the presumption were rebuttable, it still violates due process to presume, on the basis of an undifferentiated, class-based expectation, that an exemplary military officer will violate military rules. See id.; see also Romer, slip op. at 10-13. [11]/
2. Equally disturbing is the court's conclusion that its own reasoning required an affirmance rather than a reversal. A majority of ten members of the courtÄthe concurring group led by Judge Luttig and the four dissentersÄexpressly concluded that petitioner was discharged under invalid regulations. App., 36a-85a. Yet, rather than reverse, the court upheld petitioner's discharge. The court's holding thus amounts to an implicit determination that new and valid regulations, which do not now exist and without which the Act is inoperative, can lawfully be applied to petitioner retroactively, and that petitioner cannot possibly show or have any basis for retention under those non-existent regulations. [12]/ That holding contradicts settled administrative law. See, e.g., Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208-09 (1988) (regulations typically cannot be applied retroactively); id. at 216-25 (Scalia, J., concurring) (same).
The first two district courts to have addressed the Act, including the district court in this case, have reached directly contrary results. Compare Thomasson v. Perry, 895 F. Supp. 820 (E.D. Va. 1995), aff'd, 80 F.3d 915 (4th Cir. 1996) (en banc), with Able v. United States, 880 F. Supp. 968 (E.D.N.Y. 1995), appeal pending, No. 95-6111 (2d Cir.).
In the present case, the district court upheld the policy, both on its face and as applied to petitioner, and it rebuffed legal challenges under the First and Fifth AmendmentsÄa result that the court of appeals has now affirmed. See App., 1a-110a. By contrast, in Able, the district court held the policy unconstitutional on its face under the First and Fifth Amendments. See Able, 880 F. Supp. at 972-80. If Able is correct, it follows that the decisions of the lower courts in this case cannot be. [13]/
More recent decisions that have grappled with the policy have also produced conflicting results. Compare Holmes v. California Army Nat'l Guard, 920 F. Supp. 1510 (N.D. Cal. 1996) (holding policy unconstitutional under First and Fifth Amendments), appeal pending, No. 96-15726 (9th Cir.); Thorne v. United States Dep't of Defense, 916 F. Supp. 1358, 1368, 1372 (E.D. Va. 1996) (holding case in abeyance for further briefing but concluding that the policy "is plainly a content-based restriction" on speech that "does not substantially further any of the proffered goals" and that likely violates the First Amendment), with Richenberg v. Perry, 909 F. Supp. 1303 (D. Neb. 1995) (upholding policy), appeal pending, No. 95-4181 (8th Cir.); Selland v. Perry, 905 F. Supp. 260 (D. Md. 1995) (same), appeal pending, No. 95-2982 (4th Cir.); Watson v. Perry, 918 F. Supp. 1403 (W.D. Wash. 1996) (same), appeal pending, No. 96-35314 (9th Cir.); cf. Philips v. Perry, 883 F. Supp. 539 (W.D. Wash. 1995) (upholding policy as applied to service member who admitted homosexual sexual conduct), appeal pending, No. 95-35293 (9th Cir.). [14]/
The conflict in the lower courts is even more acute when one considers decisions that have addressed challenges to the "old" policy, which was in effect, as a matter of Executive Order, before Congress enacted the "Don't Ask, Don't Tell" policy in late 1993. See supra, note 2 (summarizing the differences between the two policies). Not only do these cases conflict with one another, but in many respects, their holdings cannot be reconciled with those of the court of appeals here or of other courts that have addressed the new policy. Compare Meinhold v. United States Dep't of Defense, 34 F.3d 1469, 1479 (9th Cir. 1994) (upholding facial constitutionality of old policy when narrowly construed, but invalidating the policy as applied to a service member who simply stated "`I am in fact gay'"); Cammermeyer v. Aspin, 850 F. Supp. 910 (W.D. Wash. 1994) (holding old policy unconstitutional under equal protection and substantive due process guarantees), appeal pending, Nos. 94-35600, 94-35674 (9th Cir.); Dahl v. Secretary of the United States Navy, 830 F. Supp. 1319 (E.D. Cal. 1993) (holding old policy unconstitutional under equal protection guarantee); Elzie v. Aspin, 841 F. Supp. 439, 443 (D.D.C. 1993) (issuing preliminary injunction and finding likelihood of success on plaintiff's claim that old policy, as applied to one who simply stated that he is gay, "serves no legitimate governmental purpose"); with Steffan v. Perry, 41 F.3d 677 (D.C. Cir. 1994) (en banc) (upholding old policy as rational where service member did not challenge the legitimacy of the policy's purpose), vacating Steffan v. Perry, 8 F.3d 57 (1993) (holding old policy facially unconstitutional under equal protection guarantee). [15]/
The conflict between the Ninth Circuit's decision in the Meinhold case and the decision of the court of appeals in this case is particularly acute. In Meinhold, the Ninth Circuit held that a discharge policy based on "the `classification of being homosexual' clearly implicates equal protection [concerns]." 34 F.3d at 1477 (emphasis added). As the court explained:
Although courts defer to the military's judgment about homosexual conduct . . . , 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.
Id. at 1478. The Meinhold court held that it could avoid this "serious question" because the old policy could "reasonably be construed to reach only statements that show a concrete, fixed, or expressed desire to commit homosexual acts despite their being prohibited." Id. at 1479. Subject to that judicially crafted, narrowing construction, the court upheld the old policy as facially constitutional, but it expressly invalidated the policy as applied to Meinhold who, like petitioner here, had simply stated, "`Yes, I am in fact gay.'" Id. at 1472, 1479 (quoting Meinhold's statement).
There is no dispute that the policy, as now codified, cannot support the limiting construction that the Meinhold court found necessary to avoid the policy's serious constitutional questions: the new policy expressly authorizes the discharge of a service member who simply says "I am gay." See 10 U.S.C. § 654(b)(2) (App., 122a); DoD Dir. No. 1332.30, Enc. 2, ¶ C.1.b (App., 136a-37a). It is likewise apparent that petitioner has been discharged for uttering the same statement that the Ninth Circuit held could not support Petty Officer Meinhold's discharge. Indeed, although respondents have attempted to defend the new policy as "conduct-based," 10 of the 13 judges of the court of appeals in this case have agreed with petitioner that, in fact, the policy is not conduct-based but rather targets speech and the mere presence of known homosexuals in the military's ranks. See pages 15-16, supra.
The present array of judicial decisions (under both the new and the old policies) demonstrates that there are widely conflicting authorities on the issues that this case presents. In addition, the number of comparable challenges that are wending through the administrative and judicial systems in the wake of this case is both large and rapidly growing. See, e.g., C.D. Osburn & M. Benecke, Conduct Unbecoming: The Second Annual Report on "Don't Ask, Don't Tell, Don't Pursue" Violations, ii (1996) (stating that DoD "discharged 722 people under the [new] policy in fiscal year 1995Äa four-year high, and a 21% increase over 1994 levels"). Accordingly, and in light of the Romer decision, the need for guidance from this Court is both pressing and great.
The petition for a writ of certiorari should be granted.
Respectfully submitted,
Mark H. Lynch
Allan B. Moore*
Covington & Burling
1201 Pennsylvania Avenue, N.W.
P.O. Box 7566
Washington, D.C. 20044
(202) 662-5000
Attorneys for Petitioner
*Counsel of Record
[1]/ DoD Directive No. 1332.30, which was applied to Petitioner, governs the administrative separation of regular commissioned officers. DoD Directive No. 1332.14 governs the administrative separation of enlisted personnel. The two directives are identical in all material respects.
[2]/ As explained by DoD, the new policy differs from DoD's prior, uncodified policy in three principal respects, which roughly correspond to the three respective phrases by which the policy has come to be known: "Don't Ask, Don't Tell, Don't Pursue." First, "[a]ccession policy has been revised so that no applicant [for military service] will be asked about his or her sexual orientation as part of the accession process. Sexual orientation is considered a personal and private matter, and homosexual orientation is not a bar to service entry or continued service unless manifested by homosexual conduct." Office of the Assistant Secretary of Defense for Public Affairs, News Release: Secretary Aspin Releases New Regulations on Homosexual Conduct in the Armed Forces, at 1 (Dec. 22, 1993), reprinted in Rec. as Pl. Ex. T5G, at 1810. Second, "[s]eparation policy has been revised to emphasize that DoD judges the suitability of persons to serve in the Armed Forces on the basis of conduct, not sexual orientation." Id. Third, neither any criminal investigation nor any personnel security inquiry or investigation will be conducted by DoD "solely to determine a servicemember's sexual orientation[,]" and "[i]nvestigations [regarding sexual misconduct] will be conducted in an evenhanded manner, without regard to whether the alleged sexual misconduct involves homosexual or heterosexual conduct." Id. at 1810a.
[3]/ The record is replete with evidence of the high regard in which petitioner was held, by his superiors and subordinates alike, both before and after he first stated that he is gay. App., 91a (district court); id., 6a-7a (court of appeals majority); id., 74a-75a & n.4 (court of appeals dissent); C.A. App., 348-69, 381-82, 406-17.
[4]/ Petitioner also explained to the Board, in a personal statement, why he wrote his letter and what he intended to convey. First, as he explained, he felt obligated as a matter of principle to inform his commanding officers and colleagues of his sexual orientation, so that those who knew him best and worked with him might know this basic aspect of who he is, and so that he himself might stop publicly having to pretend that he is a heterosexual. Second, he thought that the new policy would perpetuate false stereotypes about gays and lesbians, and he believed that he might help to dispel such stereotypes by virtue of his own record, position, and conduct. See C.A. App., 235-41; see also id. 400.
[5]/ The majority opinion was authored by Chief Judge Wilkinson, who was joined by Judges Russell, Widener, Murnaghan, Wilkins, Niemeyer, Hamilton, Luttig, and Williams. App., 3a-36a. Judge Murnaghan wrote a brief separate concurrence. Id., 36a. Judge Luttig wrote an extensive separate concurrence in which Judges Russell, Widener, Wilkins, Hamilton, and Williams joined. Id., 36a-71a. Judge Hall authored the dissent, in which Judges Ervin, Michael, and Motz joined. Id., 71a-85a.
[6]/ In a separate, one-paragraph concurrence, Judge Murnaghan concluded that the majority's "extended discussion of judicial deference to the military is unnecessary." App., 36a. In his view, the case simply "concerns a rebuttable presumption which Thomasson did not rebut." Id. Judge Murnaghan expressed no opinion on the threshold issue of the legitimacy of the policy's imposition of that presumption.
[7]/ By defining "homosexual conduct" to include mere statements of a homosexual orientation, the policy restrains the speech of homosexuals but imposes no comparable restraint on the speech of heterosexuals. See DoD Dir. No. 1332.30, Enc. 2, ¶ C (App., 135a-37a). Under the policy, a heterosexual may state "I engage in oral sex"Äan admission of illegal sodomy (see 10 U.S.C. § 925)Äwithout any administrative consequences, but a homosexual cannot freely state "I am gay." See 10 U.S.C. § 654(b)(2). Likewise, the policy defines the "homosexual acts" that it proscribes and purports to prevent to include not just sodomy, which military law otherwise proscribes for heterosexuals and homosexuals alike (see 10 U.S.C. § 925), but potentially all affectionate "bodily contact" between homosexuals and homosexuals alone. See 10 U.S.C. § 654(f)(3).
[8]/ As we indicate below, because this case presents an "as applied" challenge, the conclusion of these six judges that the regulations are invalidÄtogether with the conclusion of the four dissenters that the policy as a whole is unconstitutionalÄshould have produced a 10-3 vote to reverse the district court, not a 9-4 vote to affirm.
[9]/ This fact further demonstrates that the policy targets orientation and speech, not conduct. It also represents an important governmental admission: that "homosexuality" and "heterosexuality" transcend any sex act (i.e., that sexual orientation is not a function of sexual conduct).
[10]/ The court likewise erred in stating that its deference to the political branches must be plenary and that "the Founders failed to provide the federal judiciary with a check over the military powers of Congress and the President." (App., 15a (citing U.S. Const. art. III). This broad and novel conception of deference contradicts this Court's prior holdings. See, e.g., United States v. Robel, 389 U.S. 258, 264 (1967); see also Chappell v. Wallace, 462 U.S. 296, 304 (1983); Rostker v. Goldberg, 453 U.S. 57, 67, 70 (1981); Weiss v. United States, 114 S. Ct. 752, 769 (1994) (Ginsburg, J., concurring). Moreover, as the dissent below observed, such a rule of law would absolve any manner of invidious discrimination in the armed forces. See App., 80a-81a; cf. Korematsu v. United States, 323 U.S. 214, 219 (1944) (Court "could not reject the finding of military authorities" that wartime internment of Japanese Americans was proper); Plessy v. Ferguson, 163 U.S. 537, 550 (1896) (deferring to legislative judgment to segregate races and holding that elected officials are "at liberty" to act to preserve "comfort" and "good order").
[11]/ For example, it would be irrational for the Navy to presume that a sailor who states "I love life" will desert in the heat of battle because of the strength of his survival instinct. It likewise would be irrational for the Roman Catholic Church to presume that all priests will break their vows of celibacy because of their sexual urges. Rather, we must presume that people will obey the rules they live by, not violate them. See Jacobson v. United States, 503 U.S. 540, 551 (1992); Powell v. Texas, 392 U.S. 514, 543 (1968) (Black, J., concurring). Otherwise, as the dissent noted, "rules are a vain exercise indeed." App., 82a. In any event, to the extent that the policy's presumption was rebuttable, petitioner's showing carried his burden. See, e.g., C.A. App., 56-293. As the district court observed, "[t]he Navy did not introduce any rebuttal evidence [to respond to petitioner's showing] or dispute the substance of any of [petitioner's] evidence." App., 91a.
[12]/ The Act relies on express delegations to the Secretary of Defense and is not self-executing. See 10 U.S.C. §§ 654(b), (c), (e); 10 U.S.C. § 654 note (setting forth Pub. L. No. 103-160, §§ 571(b)-(d)) (App. 122a-25a).
[13]/ The government has appealed in Able, which was argued last January, and a decision from the Second Circuit should be forthcoming at any time. Apart from the fact that Able does not include an "as applied" challenge, the two cases also differ in that Able contains no due process or APA claim and raises threshold standing and exhaustion issues not presented here.
[14]/ Although none of the foregoing cases has yet produced an appellate decision on the merits, one has produced a notable interlocutory appellate decision. See Richenberg v. Perry, 73 F.3d 172 (8th Cir. 1995). In Richenberg, a divided court of appeals declined to issue an injunction pending the plaintiff's appeal. Chief Judge Arnold dissented and concluded that plaintiff is likely to prevail on appeal. See id. at 173-74. Richenberg was argued on the merits on April 8, 1996.
[15]/ See also Pruitt v. Cheney, 963 F.2d 1160 (9th Cir.) (rejecting free speech challenge to old policy but remanding for further proceedings on equal protection claim), cert. denied, 506 U.S. 1020 (1992); Ben-Shalom v. Marsh, 881 F.2d 454 (7th Cir. 1989) (rejecting free speech and equal protection challenges to old policy), cert. denied, 494 U.S. 1004 (1990); Woodward v. United States, 871 F.2d 1068 (Fed. Cir. 1989) (rejecting equal protection and substantive due process challenges to old policy), cert. denied, 494 U.S. 1003 (1990); Dronenburg v. Zech, 741 F.2d 1388 (D.C. Cir. 1984) (rejecting equal protection and substantive due process challenges to old policy as applied to service member who admitted homosexual sexual conduct); Rich v. Secretary of the Army, 735 F.2d 1220 (10th Cir. 1984) (rejecting equal protection, due process, and free speech challenges to old policy as applied to service member who was found to have fraudulently enlisted); Beller v. Middendorf, 632 F.2d 788 (9th Cir. 1980) (rejecting procedural and substantive due process challenges to old policy as applied to service member who admitted homosexual sexual conduct), cert. denied, 452 U.S. 905 (1981); cf. Watkins v. United States Army, 875 F.2d 699 (9th Cir. 1989) (en banc) (holding that Army was equitably estopped from denying re-enlistment to homosexual soldier under old policy where Army knew for many years of soldier's sexual orientation), cert. denied, 498 U.S. 957 (1990).