IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
LT. PAUL G. THOMASSON,
USN, Plaintiff,
v.
THE HONORABLE WILLIAM J. PERRY,
Secretary of Defense,
and
THE HONORABLE JOHN H. DALTON, Secretary
of the Navy, Defendants.
Civ. A. No. 95-252-A.
United States District Court,
E.D. Virginia,
Alexandria Division.
June 8, 1995.
MEMORANDUM OPINION
HILTON, District Judge.
This matter came before the Court on cross-motions for summary judgment.
Plaintiff Lt. Paul G. Thomasson brings this action seeking permanent injunctive
and declaratory relief to prevent the Defendants from discharging or otherwise
removing him from active duty in the United States Navy as a result of his
statement that he is a homosexual. The Plaintiff maintains that the National
Defense Authorization Act for the Fiscal Year 1994, 10 U.S.C. § 654, known
colloquially as the "Don't Ask Don't Tell" policy, is unconstitutional on its
face and as applied to the Plaintiff in this action. Lt. Thomasson challenges
the statute under the First Amendment, the Equal Protection Clause of the Fifth
Amendment, the Due Process Clause of the Fifth Amendment, and the Administrative
Procedure Act. This Court has jurisdiction under 28 U.S.C. §§ 1331 and 1346.
Venue lies under 28 U.S.C. § 1391.
BACKGROUND OF THE ACT
On January 29, 1993, president Clinton directed then Secretary of
Defense Les Aspin to re-evaluate the Department of Defense's ("DOD's")
longstanding policy excluding homosexuals from service in the armed forces. From
March through late July, 1993, the Armed Services Committees of the House and
Senate held extensive public hearings on the matter. The Committees received
testimony from military commanders, gay rights activists, experts in military
personnel policy, professors, social scientists, interested civilians and
members of the armed forces, and conducted a field visit to Norfolk Naval
Complex. / On July 19, 1993, the President announced a new "Policy on Homosexual
Conduct in the Armed Forces," which was subsequently enacted in the National
Defense Authorization Act for Fiscal Year 1994, Pub. L. No. 103-160, § 571, 107
Stat. 1670-73, codified at 10 U.S.C. § 654 (1995). The Act was signed by the
President on November 30, 1993. On December 22, 1993, DOD issued implementing
Directives, modified slightly on February 28, 1994, and made effective on that
date. On the same date, each of the DOD military services issued
service-specific instructions to the field implementing the DOD Directives.
Section 571 of the Act sets forth the "Policy concerning homosexuality in the
armed forces," which reflects Congress' policy determination made on the basis
of the testimony and information garnered from the hearings. This Section
contains fifteen findings which recognize, among other things, "military life is
fundamentally different from civilian life," and, therefore, its "society
includes numerous restrictions on personal behavior that would not be acceptable
in civilian society." 10 U.S.C. § 654(a)(8)(B)(1995). Congress also noted that
"[s]uccess in combat requires military units that are characterized by high
morale, good order and discipline, and unit cohesion." Id. The Act concludes
that the longstanding exclusion from service in the military of persons who
engage in, or demonstrate a propensity to engage in, homosexual conduct
continues to be necessary because the presence of such service members "would
create an unacceptable risk" to these fundamental components of military
capability. Id. § 654(a)(15).
Accordingly, the statute provides for mandatory separation from the military if
one or more of the following three findings is made:
(1) the member is found to have engaged, attempted to engage, or solicited
another to engage, in homosexual acts; (2) "stated that he or she is a
homosexual or bisexual . . . unless [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," id. § 654(b)(2); or (3)
"married or attempted to marry a person known to be of the same biological sex."
Id. § 654(b)(3). As the language of Section 654(b)(2) indicates, and the
legislative history confirms, a member's statement that he or she is a
homosexual gives rise to a rebuttable presumption that the member engages in, or
is likely to engage in, homosexual acts. S. Rep. No. 112, 103d Cong., 1st Sess.,
at 293-94 (1993), U.S. Code Cong. & Admin. News 1993 at pp. 2080-81.
The implementing Directive applicable to military officers, such as Plaintiff,
is DOD Directive 1332.30, captioned "Separation of Regular Commissioned
Officers," which the Navy has implemented. / This Directive provides that the
military will not ask about an applicant's sexual orientation because homosexual
orientation "is considered a personal and private matter and is not a bar to
continued service . . . unless manifested by homosexual conduct." DOD Dir.
1332.30, Encl. 2, C, at 2-1 (March 4, 1994). The Directive defines "Homosexual
Conduct" as including "homosexual acts, a statement by a member that
demonstrates a propensity or intent to engage in homosexual acts, or a
homosexual marriage or attempted marriage." Id. Under the Directive, "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." Id. Although a statement may demonstrate a
propensity or intent to engage in homosexual conduct, the Directive provides the
service member with an opportunity "to rebut the presumption by presenting
evidence demonstrating 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." Id.
C.1.b., at 2-2.
The Directive provides explicit guidance to administrative boards when assessing
whether an officer has rebutted the presumption.
The Directive instructs the boards to consider, among other things,
(1) Whether the officer has engaged in homosexual acts; (2) The officer's
credibility; (3) Testimony from others about the officer's past conduct,
character, and credibility; (4) The nature and circumstances of the officer's
statement; and (5) Any other evidence relevant to whether the officer is likely
to engage in homosexual acts.
Id. C.1.b.(1)-(5), at 2-2; see 10 U.S.C. § 654(b)(1)(A)-(E).
As the Senate Committee found, the new policy is essentially the same as the
pre-1994 policy in that it provides for mandatory separation from the military
on the basis of homosexual acts, marriages, or statements indicating a
propensity to engage in homosexual conduct. The primary difference is that the
DOD will not ask questions about sexual orientation as part of accession
processing. The new policy also provides guidance on the conduct of
investigations. S. Rep. No. 112, at 289-90, U.S. Code Cong. & Admin. News, at
2076-77.
On March 2, 1994, the day after the Navy implemented the DOD Directives with
regard to service by homosexuals, Lt. Thomasson delivered a letter to four Navy
admirals for whom he had served at the Bureau of Naval Personnel stating that he
was a homosexual. Lt. Thomasson indicated in his letter that this characteristic
was "more deeply rooted than all societal, religious, parental, or peer
pressures can effect [sic]." I Rec. Tr., at 4-5. In accordance with military
policy, the Navy instituted separation proceedings.
An administrative Board of Inquiry was convened at which Plaintiff was
represented by military counsel as well as his current civilian counsel. The
Board heard two days of testimony and argument and received into evidence
several volumes of materials relating both to Lt. Thomasson's record and the
Navy's policy on homosexuality. 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 career.
The Navy did not introduce any rebuttal evidence or dispute the substance of any
of Lt. Thomasson's evidence. Indeed, during its phase of the proceedings, the
Navy acknowledged that Lt. Thomasson had attained an "enviable" service record.
I. Rec. Tr. at 0036, 0148. The Navy also acknowledged that there was no evidence
that Lt. Thomasson had engaged in any "homosexual acts." Plaintiff refused,
however, to introduce evidence to rebut the presumption that he engages in or
has a propensity to engage in homosexual acts by reading an unsworn statement to
the Board, stating: "I will not go further in degrading myself by disproving a
charge about sexual conduct that no one has made." I Rec. Tr., at 141, IV Rec.
T2A.
After hearing all of the evidence, the Board of Inquiry unanimously voted that
Lt. Thomasson had made statements that indicated he "engages in, attempts to
engage in, or has a propensity or intent to engage in homosexual acts" as
prohibited by the policy and that he had not rebutted the presumption raised by
those statements, thereby failing to show cause for retention. The Board
accordingly recommended that Lt. Thomasson be honorably discharged.
On September 9, 1994, a three-member Board of Review convened to examine Lt.
Thomasson's case. The Board of Review, without comment, unanimously upheld the
Board of Inquiry's finding that Lt. Thomasson had failed to establish that he
should be retained on active duty, and recommended that he be separated with an
honorable discharge. The Assistant Secretary of the Navy for Manpower and
Reserve Affairs approved the discharge on January 17, 1994. Lt. Thomasson's
honorable discharge certificate has been signed but it has not yet been dated or
delivered. On February 27, 1995, Lt. Thomasson filed suit in this Court, seeking
declaratory and injunctive relief to prevent his discharge. This Court granted a
preliminary injunction enjoining the Navy from any further action pending
resolution of this case.
Summary judgment must be entered when "there is no genuine issue as to any
material fact" and therefore "the moving party is entitled to judgment as a
matter of law." Fed.R.Civ.P. 56(c). A fact is material when proof of its
existence or non-existence would affect the outcome of the case, and an issue is
genuine if a reasonable jury might return a verdict in favor of the non-moving
party on the basis of such issues. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). Both parties in the
instant action agree that the facts in this case are not in dispute. This
action, therefore, is ripe for summary judgment.
THE FIRST AMENDMENT
[1] Lt. Thomasson contends that the policy at issue violates his
rights of freedom of speech and association as guaranteed him by the First
Amendment, both on its face and as applied to him in particular. The Plaintiff
argues that the policy infringes on the First Amendment because it is a
content-based restriction on speech. By making certain statements in and of
themselves a sufficient ground for discharge, he contends that the policy is
directly aimed at the suppression of free expressionÄstatements that a service
member is gayÄrather than at any conduct that the military might legitimately
regulate.
The Plaintiff, however, misses the fundamental point that the policy uses the
speech as evidence, via rebuttable presumption, that the service member's
declaration of his homosexuality will lead to homosexual conduct. In the instant
matter, the Navy did not, as Plaintiff claims, argue at Lt. Thomasson's
discharge hearing that the Board should recommend discharge solely "because Lt.
Thomasson's verbal acknowledgement of his sexual orientation wasÄin and of
itselfÄforbidden `homosexual conduct.'" Pl's Mem. of P.A. in Supp. of Mot. for
Summ. J. at 43. Rather, the Navy argued that Plaintiff's statement gave rise to
a presumption that he engages in, or has a propensity or intent to engage in,
homosexual acts.
The Supreme Court has recently held in the criminal context that "[t]he First
Amendment . . . does not prohibit the evidentiary use of speech to establish the
elements of a crime or to prove motive or intent." Wisconsin v. Mitchell, ___
U.S. ___, ___, 113 S. Ct. 2194, 2201, 124 L. Ed. 2d 436 (1993). See also Dawson
v. Delaware, 503 U.S. 159, 112 S. Ct. 1093, 1097, 117 L. Ed. 2d 309 (1992)
("[T]he Constitution does not erect a per se barrier to the admission of
evidence concerning one's beliefs and associations at sentencing simply because
those beliefs and associations are protected by the First Amendment."). If this
holds true in the criminal context, it is certainly applicable in the civil
context, where the litigant is not afforded the same constitutional protections
as is a criminal defendant. And certainly nothing in the First Amendment bars
the use of a statement constituting an admission. See Pruitt v. Cheney, 963 F.2d
1160, 1164 (9th Cir. 1991) (an "admission [of homosexuality], like most
admissions, was made in speech, but that does not mean that the first amendment
precludes the use of the admission as evidence of the facts admitted"), cert.
denied, ___ U.S. ___, 113 S. Ct. 665, 121 L.Ed. 581 (1992) (citing High Tech
Gays v. Defense Indus. Security Clearance Office, 895 F.2d 563, 578-80 (9th Cir.
1990)). Although the DOD regulation does affect speech, as the Seventh Circuit
recognized, "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).
Indeed, every court of appeals to address this issue under the military's former
policy, which contained the same rebuttable presumption, concluded that the use
or a statement in this circumstance did not violate the First Amendment. Pruitt,
963 F.2d at 1163-64; Schowengerdt v. United States, 944 F.2d 483, 489 (9th Cir.
1991); Ben-Shalom, 881 F.2d at 458-62; Rich v. Secretary of the Army, 735 F.2d
1220, 1228-29 (10th Cir. 1984).
The Plaintiff attempts to distinguish this policy from the pre-1994 policy by
arguing that unlike the prior policy, the present policy now means that only
homosexuals who speak about their sexual orientation are presumptively unfit for
military service. The Plaintiff argues that the policy now concedes that "there
is nothing impermissible about being gay and that [because] homosexuals may
continue to serve [in the military,] the acknowledgement that one is gay has no
conceivable evidentiary value." Pl's Opp. to Def's Mot. for Summ. J. at 34.
Again, however, the Plaintiff misreads the policy. Service members who engage
in, or demonstrate a propensity to engage in, homosexual conduct are unfit for
service under the policy. Statements made by those acknowledging their
homosexuality are taken as evidence that the person has, or will in the future,
engage in prohibited conduct. But statements are not the only means for
discharge. Those that don't speak about their sexual orientation may still be
discharged if it is discovered that they engage in or have a Propensity to
engage in prohibited conduct. The statute, therefore, does not punish only those
homosexuals who speak about their sexual preference.
Lt. Thomasson further argues that the policy implicates the First Amendment and
is "particularly pernicious" because it penalizes an individual's honest
statements about his personal identity and his affiliation with a particular
group. The Court has indicated that a service member's expressive rights must
often yield to the necessities of military life. See, e.g., Goldman v.
Weinberger, 475 U.S. 503, 508, 106 S. Ct. 1310, 1313-14, 89 L. Ed. 2d 478 (1980)
(upholding regulations precluding Orthodox Jew and ordained rabbi from wearing
yarmulke while in military uniform); Greer v. Spock, 424 U.S. 828, 838, 96 S.
Ct. 1211, 47 L. Ed. 2d 505 (1976) (upholding restrictions of political speech on
military base). As the Supreme Court has recognized, the judiciary's "review of
military regulations challenged on First Amendment grounds is far more
deferential than constitutional review of similar laws or regulations designed
for civilian society." Goldman, 475 U.S. at 507, 106 S.Ct. at 1313. See also
Brown v. Glines, 444 U.S. 348, 354, 100 S. Ct. 594, 599, 62 L. Ed. 2d 540 (1980)
("Thus, while members of the military services are entitled to the protections
of the First Amendment, `the different character of the military community and
of the military mission requires a different application of those
protections.'") (quoting Parker v. Levy, 417 U.S. 733, 759, 41 L. Ed. 2d 439, 94
S. Ct. 2547 (1974)).
In this instance, however, Lt. Thomasson was not discharged from the Navy
because of his stated or symbolic expression of an opinion opposing the policy,
or because of his support for a group that opposes the policy. Instead, he was
discharged for stating that he was a homosexual and refusing to rebut the
presumption that he would thereby engage in homosexual conductÄconduct which the
military may validly proscribe. Under the policy, a service member is free to
affiliate with a group that opposes the policy, to make statements criticizing
the policy, to attend demonstrations in favor of homosexual rights, to read
homosexual newspapers, or engage in other such expressive activities. See DOD
Dir. 1332.30, Enc. 8 C.3.d., at 8-2; S. Rep. No. 112, at 292, U.S. Code Cong. &
Admin. News, at 2079. What the service member is not free to do is declare
himself to be a homosexual and fail to rebut the entirely reasonable presumption
that as a homosexual he will engage in homosexual conduct. See Ben-Shalom, 881
F.2d at 464 (holding that a service member's statement indicating a likelihood
of homosexual acts "can be rationally and reasonably viewed as reliable
evidence" that the service member engages in or is likely to engage in
homosexual acts). Thus, the basis for separation is acts and the likelihood of
acts, not "speech." See Pruitt, 963 F.2d at 1160 (holding that pre-1994 policy
does not implicate First Amendment).
It is for these reasons that the policy likewise does not infringe on Lt.
Thomasson's right to freedom of association as guaranteed by the First
Amendment. The policy is not directed, as Plaintiff claims, toward statements of
"personal identity," or "affiliation with a particular group," or "a firmly held
affiliation with homosexuality." Service members, whatever their sexual
orientation, are free to identify themselves as sympathetic to gay rights
causes, criticize the policy, and advocate change. Indeed, the policy expressly
provides that participation in such associational activities in and of itself is
not a sufficient basis for discharge. DOD Dir. 1332.30, Encl. 8, C.3.d, at 8-2.
For these reasons, the Court finds that the instant policy does not infringe on
the protections afforded Lt. Thomasson under the First Amendment.
EQUAL PROTECTION
[2] Lt. Thomasson argues that both on its face, and as applied to
him in particular, the Defendants' policy regarding service by homosexuals in
the military violates the equal protection guarantee of the Fifth Amendment in
three ways: (1) by discriminating against homosexuals on the basis of their
status as homosexuals; (2) by discriminating against acknowledged (or "open")
homosexuals on the basis of their status as open homosexuals and their
statements about their status; and (3) by illegitimately and irrationally
presuming that open homosexuals, by definition, will violate military codes of
conduct.
The Equal Protection Clause of the Fourteenth Amendment directs that no state
shall "deny to any person within its jurisdiction the equal protection of the
laws." It is made binding on the federal government by the Due Process Clause of
the Fifth Amendment. Bolling v. Sharpe, 347 U.S. 497, 498-99, 74 S. Ct. 693,
694, 98 L. Ed. 884 (1954). Fifth Amendment equal protection claims are treated
precisely the same as equal protection claims under the Fourteenth Amendment.
Weinberger v. Wiesenfeld, 420 U.S. 636, 638, n.2, 95 S. Ct. 1225, 1228, 43 L.
Ed. 2d 514 (1975).
In evaluating the Plaintiff's equal protection claim, the Court must first
determine which of the three recognized levels of equal protection review to
employ: rational review, intermediate scrutiny, or strict scrutiny. See Cleburne
v. Cleburne Living Ctr., Inc., 473 U.S. 432, 440-41, 105 S. Ct. 3249, 3254-55,
87 L. Ed. 2d 313 (1985) (describing various standards of review). At the outset,
it is important to recognize the particularly limited role of the judiciary in
reviewing policies implemented by Congress in the military arena. Article I,
Section 8 of the Constitution provides Congress with exclusive power to raise
and support armies. As the Supreme Court has recognized, "judges are not given
the task of running the Army, . . . the military constitutes a specialized
community governed by a separate discipline from that of the civilian. Orderly
government requires that the judiciary be as scrupulous not to interfere with
legitimate Army matters. . . ." Orloff v. Willoughby, 345 U.S. 83, 93-94, 73 S.
Ct. 534, 540, 97 L. Ed. 842 (1953).
The issue of what standard of review to apply to equal protection challenges to
the military's policy governing service by homosexuals has been addressed
previously by five federal courts of appeals. Each court has held that rational
basis is the proper standard, whether the challenge involved exclusion because
of homosexual acts or based on statements. See Steffan v. Perry, 309 U.S. App.
D.C. 281, 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, 881 F.2d at 464;
Woodward v. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989), cert. denied,
494 U.S. 1003, 110 S.Ct. 1295, 108 L. Ed. 2d 473 (1990); Rich v. Secretary of
the Army, 735 F.2d 1220, 1229 (10th Cir. 1984); accord High Tech Gays, 895 F.2d
at 574 (applying rational basis test to challenge by civilian homosexual
applicants to Department of Defense security clearance policy). See also Walmer
v. United States DOD, 52 F.3d 851 (10th Cir. 1995) (reaffirming validity of
rational basis review in evaluating equal protection challenges to the
military's policy regarding service by homosexuals as previously articulated in
Rich).
The Plaintiff contends, however, that his claim is subject to review under
strict scrutiny / because the Defendants' policy creates a suspect
classification by disadvantaging homosexuals solely on the basis of their sexual
orientation and because the policy infringes on the Plaintiff's fundamental
right of free speech. As discussed above, the policy does not violate Lt.
Thomasson's rights under the First Amendment so application of strict scrutiny
on that basis is not appropriate.
The Plaintiff in this action correctly maintains that, while courts must accord
deference to the policy determinations made by Congress in the arena of military
affairs, there is no "military exception" to the Constitution. Indeed, as Lt.
Thomasson points out, "a different equal protection test" does not apply simply
because a case arises in the military context. Rostker v. Goldberg, 453 U.S. 57,
71, 101 S. Ct. 2646, 2655, 69 L. Ed. 2d 478 (1981). As the Plaintiff
acknowledges, however, homosexuals have not been characterized as a "suspect
class," which would require the Court to analyze any classification under strict
scrutiny.
The Plaintiff argues that this Court should extend the class to include
homosexuals because homosexuals constitute a "discrete and insular minorit[y]"
under the test articulated by the Supreme Court in United States v. Carolene
Prods. Co., 304 U.S. 144, 152-53, n.4, 58 S. Ct. 778, 783-84, n.4, 82 L. Ed.
1234 (1938). Because the government is free to criminalize homosexual conduct,
however, "a group that is defined by reference to that conduct cannot constitute
a `suspect class.'" Steffan, 41 F.3d at 684. See also Ben-Shalom, 881 F.2d at
464. Further, the Supreme Court has expressed great "reluctance" to expand the
number of classifications afforded heightened scrutiny. Cleburne, 473 U.S. at
441, 105 S.Ct. at 3255. The Court has refused to accord heightened scrutiny to
the elderly, Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 313, 96 S.
Ct. 2562, 2566-67, 49 L. Ed. 2d 520 (1976); the mentally retarded, Cleburne, 473
U.S. at 442; "close relatives," Lyng v. Castillo, 477 U.S. 635, 638, 106 S. Ct.
2727, 2729, 91 L. Ed. 2d 527 (1986); and a statutorily-defined "family unit,"
Bowen v. Gilliard, 483 U.S. 587, 601-03, 107 S. Ct. 3008, 3017-18, 97 L. Ed. 2d
485 (1987). Therefore, because homosexuals do not constitute a suspect class and
the policy does not infringe on the exercise of a fundamental right, analysis of
the regulations at issue under strict scrutiny is not appropriate.
[3] The Plaintiff's challenge of the regulations based on the Equal Protection
Clause must be examined under the standard of rational review. When evaluating a
statute or regulation under rational-basis review, the court must ask two
questions: First, are the regulations directed at the achievement of a
legitimate governmental purpose and, second, do they rationally further that
purpose? Trimble v. Gordon, 430 U.S. 762, 766, 97 S. Ct. 1459, 1463, 52 L. Ed.
2d 31 (1977); Heller v. Doe, ___ U.S. ___, 113 S. Ct. 2637, 2642, 125 L. Ed. 2d
257, (1993). "[R]ational-basis review in equal protection analysis `is not a
license for courts to judge the wisdom, fairness, or logic of legislative
choices.'" Heller, 113 S. Ct. at 2642. Under this standard of review, the
government "has no obligation to produce evidence to sustain the rationality of
a [regulatory] classification." Id. at 2643. Because "a classification neither
involving fundamental rights nor proceeding along suspect lines is accorded a
strong presumption of validity," id., at 2642, "`[t]he burden is on the one
attacking the [governmental] arrangement to negative every conceivable basis
which might support it,' whether or not the basis has a foundation in the
record." Id. at ___, 113 S.Ct. at 2643 (quoting Lehnhausen v. Lakeshore Auto
Parts Co., 410 U.S. 356, 364, 93 S. Ct. 1001, 1006, 35 L. Ed. 2d 351 (1973)).
Moreover, the Plaintiff in an action challenging the validity of a military
regulation has an even greater burden to overcome given the deference courts
must accord to action by the political branches in the military context. The
Supreme Court has recognized that "[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, 88 S. Ct.
1673, 1679, 20 L. Ed. 2d 672 (1968). Because the military is, "by necessity, a
specialized society separate from civilian society," Parker v. Levy, 417 U.S.
733, 743, 94 S. Ct. 2547, 2555, 41 L. Ed. 2d 439 (1974), the Supreme Court has
held that "Congress is permitted to legislate both with greater breadth and with
greater flexibility when prescribing the rules by which [military society] shall
be governed. . . ." Id. at 743, 756, 94 S.Ct. at 2555-56, 2561-62. Indeed,
"perhaps in no other area has the Court accorded Congress greater deference"
than in the military context. Rostker, 453 U.S. 57 at 61, 64-65, 101 S. Ct. at
2649-50, 2651-52, 69 L. Ed. 2d 478, (1981).
In addition, the Supreme Court has noted the lack of competence on the part of
courts to second-guess decisions made by Congress in the military context. In
Gilligan v. Morgan, 413 U.S. 1, 93 S. Ct. 2440, 37 L. Ed. 2d 407 (1973) the
Court emphatically declared:
[I]t is difficult to conceive of an area of governmental activity in which the
courts have less competence. The complex, subtle and professional decisions as
to the composition, training, equipping, and control of a military force are
essentially professional military judgments, subject always to civilian control
of the Legislative and Executive Branches.
Id. at 10, 93 S.Ct. at 2446. The Court has recognized that "'the military must
insist upon a respect for duty and a discipline without counterpart in civilian
life'" to "foster instinctive obedience, unity, commitment, and esprit de
corps." Goldman, 475 U.S. at 507, 106 S.Ct. at 1313 (quoting Schlesinger v.
Councilman, 420 U.S. 738, 757, 95 S. Ct. 1300, 1312-13, 43 L. Ed. 2d 591
(1975)). See also 10 U.S.C. § 654(a)(8)(1995). Restrictions promulgated to
achieve these goals are matters entrusted to the military's "considered
professional judgment," Goldman, 475 U.S. at 508, 106 S.Ct. at 1313, and courts
have traditionally recognized that "judicial deference is at its apogee when
legislative action under the congressional authority to raise and support armies
and make rules and regulations for their governance is challenged." Rostker, 453
U.S. at 70, 101 S.Ct. at 2654-55.
These principles are particularly pertinent in this matter. Like the regulation
at issue in Rostker v. Goldberg, where the Court upheld a military regulation
requiring the registration of males and not females in the face of an equal
protection challenge, this regulation "was extensively considered by Congress in
hearings, floor debate, and in committee." 453 U.S. at 72, 101 S.Ct. at 2655.
Accordingly, the Supreme Court has cautioned that in making a determination on
the merits in this circumstance, a court "must be particularly careful not to
substitute [its] judgment of what is desirable for that of Congress, or [its]
own evaluation of evidence for a reasonable evaluation by the Legislative
Branch." id. at 68, 101 S.Ct. at 2653, especially when "Congress specifically
considered the question of the Act's constitutionality." Id. at 64, 101 S.Ct. at
2651. See S. Rep. No. 112, at 284-87, U.S. Code Cong. & Admin. News at 2070-72
(addressing impact of policy on constitutional rights of homosexual service
members).
[4] In promulgating the "Don't Ask Don't Tell" policy, the government has
clearly articulated a legitimate purpose for excluding persons who engage in or
who demonstrate a propensity to engage in homosexual conduct. The military has
concluded that allowing acknowledged homosexuals to serve in the military would
undermine unit cohesion and military readiness. Congress heard testimony from
top military professionals that unit cohesion is the single most important
factor in maintaining an effective militia. General Colin Powell, then Chairman
of the Joint Chiefs of Staff, testified that "[t]o win wars, we create cohesive
teams of warriors who will bond so tightly that they are prepared to go into
battle and give their lives if necessary for the accomplishment of the mission
and for the cohesion of the group and for their individual buddies." S. Rep. No.
112, at 275, U.S. Code Cong. & Admin. News, at 2061. See also id. at 276
(quoting testimony of Dr. William Daryl Henderson, former Commander of the Army
Research Institute and author of Cohesion: The Human Element in Combat regarding
importance of unit cohesion to success in combat). Military professionals
testified that unit cohesion must be developed long before the unit is sent to
the battlefield or the unit simply will not perform effectively, See id. at
275-76, U.S. Code Cong. & Admin. News at 2061-62 (citing testimony of Dr. David
Marlowe, Chief of the Department of Military Psychology at the Walter Reed Army
Institute of Research and General Colin Powell).
The first reason cited by the government that the presence of homosexuals in the
military undermines unit cohesion focuses on privacy concerns of service members
who are required to live in conditions "characterized by forced intimacy with
little or no privacy." 10 U.S.C. § 654(a)(12)(1995). The Senate Committee noted
the testimony of several witnesses who stated that permitting persons who engage
in, or will likely engage in, homosexual conduct to serve in the military would
infringe on the privacy concerns of other service members. Concern for the
privacy of service members is clearly legitimate as evidenced by the fact that
the military places men and women in different living quarters. As the Senate
Armed Forces Committee concluded, "[i]n civilian life, people are not compelled
to live with individuals who are sexually attracted to persons of the same sex,
and the committee finds no military necessity to compel persons to do so in the
military." S. Rep. No. 112, at 281, U.S. Code Cong. & Admin. News, at 2067-68.
Closely related to the military's concern for the privacy of its service members
is the concern over introduction of sexual tension into units. The military has
determined that sexual tension jeopardizes military readiness. Again, because
sexual behavior is a powerful force, the military has provided separate living
quarters and assignment policies based on gender. Just as it is reasonable for
the military to take sexual behavior and sexual tension into account in
establishing gender-based assignment policies, the Senate Committee found it was
reasonable for the military to take these considerations into account "when
addressing issues concerning persons who engage in or have the propensity or
intent to engage in sexual activity with persons of the same sex." Id. at 278,
U.S. Code Cong. & Admin. News at 2064.
The Plaintiff asserts in Counts II and III that the true purpose of the policy
is to exclude homosexuals from the military because of their status as
homosexuals, not because of their conduct. The Plaintiff argues that the
government's policy is based on irrational and invidious prejudice and
stereotypes and has no empirical basis. Lt. Thomasson maintains, and indeed the
government concedes, that his service record is outstanding. He argues that his
sexual orientation is of no consequence to his performance and has no impact on
unit cohesion. The policy, however, 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. The
Committee noted that these restrictions reflect "professional military judgment
as to what categories of personnel contribute to overall combat effectiveness
rather than narrow performance criteria related to the performance of a specific
task." S. Rep. 112 at 273, U.S. Code Cong. & Admin. News at 2061.
While it is true that some service members may view themselves as homosexuals
but nonetheless remain celibate, it would not be rational to develop military
personnel policies on the basis that all homosexuals will remain celibate or
that they will not be sexually attracted to others. It would be similarly
irrational for the military to ignore the obvious implications of placing people
who are sexually attracted to each other in the same living quarters. As such,
the policy is not based on irrational prejudices but on concrete, articulated
concerns about privacy and sexual tension and the resulting impact on unit
cohesion. The military is entitled to deference for its professional
determination that these legitimate concerns would adversely impact our nation's
military readiness.
Under the second prong of rational basis review, the Court must determine
whether the means employed by the government are rationally related to the
legitimate purpose of excluding those who engage in or demonstrate a propensity
to engage in homosexual conduct from service in the military. In Count III, Lt.
Thomasson argues that it is irrational to assume that because a service member
makes a statement as to his or her sexual orientation that the member thereby
has demonstrated a propensity to engage in prohibited sexual conduct. As the
Court of Appeals for the District of Columbia Circuit recently noted in Steffan
v. Perry, the government's presumption, as embodied in the DOD Directives, that
statements as to sexual preference indicate a propensity to engage in sexual
conduct is "certainly rational given that the human sexual drive is enormously
powerful and that an open declaration that one is a homosexual is a rather
reliable indication as to the direction of one's drive." Steffan, 41 F.3d at
690. Congress recognized that military policies properly take into account the
sexual attractions that can exist between men and women, and "similar
considerations apply to the development of policies with respect to
homosexuality." S. Rep. No. 112, at 284, U.S. Code Cong. & Admin. News, at 2070.
Indeed, advocates of gay rights have themselves linked homosexuality and
homosexual acts in arguing against the criminalization of homosexual sodomy. /
Further, the DOD need not be "compelled to engage in the sleuthing of soldiers'
personal relationships for evidence of homosexual conduct in order to enforce
its ban on homosexual acts." Ben-Shalom, 881 F.2d at 464. Even assuming some
homosexuals may state their sexual preference yet not engage in prohibited
conduct, when analyzing the constitutionality of a statute under rational basis
review, especially in the arena of military affairs, Congress is entitled to
deference and this Court is compelled "to accept a legislature's generalizations
even when there is an imperfect fit between means and ends." Heller, ___ U.S. at
___, 113 S. Ct. at 2643.
It is asserted that the rebuttable presumption irrationally presumes that
homosexuals who acknowledge their homosexuality will violate the law. The
Supreme Court, however, has sanctioned the government's use of classifications
based on identifiable characteristics as a proxy for conduct when making
employment decisions. In New York City Transit Auth. v. Beazer, 440 U.S. 568, 99
S. Ct. 1355, 59 L. Ed. 2d 587 (1979), the Court upheld the Transit Authority's
refusal to employ methadone users enrolled in a treatment program, finding that
it is rational to assume that an addict might engage in unacceptable conduct
while on the job. Like the regulation in Beazer, the instant regulation is, at
bottom, a regulation governing employment in a profession with somewhat unique
criteria.
Further, as the D.C. Circuit noted, service members like Lt. Thomasson "who
identify themselves as homosexual in a military setting - where a declaration of
homosexuality is a ground for discharge - convey the impression that they are
not in doubt as to the direction of their sexual drive." Steffan, 41 F.3d at
691. This is particularly pertinent in the instant case because Lt. Thomasson
refused to state whether or not he intended to engage in homosexual conduct.
In short, the government's use of a rebuttable presumption is an entirely
rational means of effectuating the military's legitimate purpose of prohibiting
individuals who engage in, or have a propensity to engage in, homosexual conduct
from serving in the military. It is not within the province of the Court to
second guess the government's decision, or indeed search for other motives or
rationales. Rather, the Court, applying a "healthy deference to legislative and
executive judgments in the area of military affairs," Rostker, 453 U.S. at 65,
101 S.Ct. at 2652, must simply determine whether the stated purpose is
legitimate and the means rationally related to that purpose. In this case, the
government has clearly articulated a legitimate purpose and has provided a means
that is rationally related to the fulfillment of that purpose.
DUE PROCESS AND THE
ADMINISTRATIVE
PROCEDURE ACT
Lt. Thomasson contends in Count V that the policy at issue
violates his rights to due process and procedural fairness under the Fifth
Amendment to the United States Constitution by (1) creating and applying a legal
classification that is unconstitutionally overbroad; (2) applying a presumption
that is in fact irrebuttable; and (3) imposing an irrebuttable presumption
grounded on a class-based expectation. He also contends that the Navy's decision
to discharge him was arbitrary, capricious, and unsupported by substantial
evidence in violation of the Administrative Procedure Act ("APA").
[5] In contending that the Defendants have created and applied a legal
classification that is unconstitutionally overbroad, the Plaintiff presumably
means that the policy is overbroad in that it provides for discharge of members
who may be homosexual but may not actively engage in prohibited homosexual
conduct. The policy, however, provides for discharge of those members who cannot
rebut the presumption that they will engage in such conduct based on their
statements. The fact that some service members who state that they are
homosexuals may have subjective intentions of remaining celibate does not make
the statute overbroad. As previously mentioned, under rational basis review, a
court is compelled to accept Congress' generalizations "even when there is an
imperfect fit between means and ends." Heller, ___ U.S. at ___, 113 S. Ct. at
2643.
[6] The Plaintiff's next argument, that the presumption is in fact irrebuttable,
is non-meritorious since, as mentioned previously, three service members thus
far have been able to rebut the presumption after making statements relating to
their homosexuality. Finally, the Plaintiff argues rather obtusely that "it
violates due process to impose an irrebuttable presumption, which is rounded on
a class-based expectation, on an individual, when that individual may prove an
exception to the expected rule and the issue in question plainly calls for an
individualized assessment." This policy provides for individualized assessment
because the service member is afforded the opportunity to rebut the presumption
and is afforded a full hearing on the merits. Again, the military is entitled to
rely on reasonable inferences based on classifications to make employment
decisions. See Murgia, 427 U.S. at 307, 96 S.Ct. at 2562 (holding that mandatory
retirement age of 50 for police officers rationally furthers the government's
purpose of assuring the physical preparedness of its police force).
It is for this reason that the policy also does not run afoul of the APA. The
policy provides, and indeed Lt. Thomasson was given, a full hearing on the
merits. There is substantial evidence in the record supporting the Navy's
determination that Lt. Thomasson failed to rebut the presumption that he has a
propensity to engage in homosexual conduct based on his statement.
Accordingly, the "Don't Ask Don't Tell" policy does not violate Lt. Thomasson's
rights under the First Amendment, the Equal Protection Clause of the Fifth
Amendment, the Due Process Clause of the Fifth Amendment, or the APA, either on
its face or as applied to him. The Plaintiff's motion for summary judgment,
therefore, should be denied and the Defendant's cross motion for summary
judgment should be granted.
An appropriate order shall issue.
ORDER
This matter came before the Court on cross-motions for summary
judgment. For reasons stated in the accompanying Memorandum Opinion, it is
hereby
ORDERED that Plaintiff's Motion for Summary Judgment is denied
and Defendants' Motion for Summary Judgment is granted and this case is
dismissed.