Thomasson v. Perry

Volume 1 of 2

PUBLISHED

No. 95-2185a

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PAUL G. THOMASSON, Lieutenant,

United States Navy,

Plaintiff- Appellant,

WILLIAM J. PERRY, Secretary of

Defense; JOHN H. DALTON, Secretary

of the Navy,

Defendants- Appellees,

UNION OF AMERICAN HEBREW

CONGREGATIONS; THE AMERICAN

JEWISH CONGRESS; NATIONAL

ORGANIZATION FOR WOMEN; NOW

LEGAL DEFENSE AND EDUCATION

FUND; CENTER FOR WOMEN POLICY

STUDIES; NATIONAL LESBIAN AND GAY

LAW ASSOCIATION; GAY AND LESBIAN

ADVOCATES AND DEFENDERS;

AMERICAN CIVIL LIBERTIES UNION;

LAMBDA LEGAL DEFENSE AND

EDUCATION FUND; SERVICEMEMBERS

LEGAL DEFENSE NETWORK; IAOMAI,

INCORPORATED; FAMILY RESEARCH

COUNCIL; IOTA LEGAL DEFENSE FUND,

Amici Curiae.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Claude M. Hilton, District Judge.

(CA- 95- 252- A)

Argued: December 5, 1995

Decided: April 5, 1996

Before WILKINSON, Chief Judge, and RUSSELL, WIDENER,

HALL, MURNAGHAN, ERVIN, WILKINS, NIEMEYER,

HAMILTON, LUTTIG, WILLIAMS, MICHAEL, and MOTZ,

Circuit Judges, sitting en banc.

_________________________________________________________________

Affirmed by published opinion. Chief Judge Wilkinson wrote the

majority opinion, in which Judges Russell, Widener, Murnaghan,

Wilkins, Niemeyer, Hamilton, Luttig, and Williams joined. Judge

Murnaghan wrote a concurring opinion. Judge Luttig wrote a concur-

ring opinion, in which Judges Russell, Widener, Wilkins, Hamilton,

and Williams joined. Judge Hall wrote a dissenting opinion, in which

Judges Ervin, Michael, and Motz joined.

_________________________________________________________________

COUNSEL

ARGUED: Allan Baron Moore, COVINGTON & BURLING, Wash-

ington, D.C., for Appellant. Edwin Smiley Kneedler, UNITED

STATES DEPARTMENT OF JUSTICE, Washington, D.C., for

Appellees. Professor William Allen Woodruff, CAMPBELL UNI-

VERSITY SCHOOL OF LAW, Buies Creek, North Carolina, for

Amicus Curiae FAMILY RESEARCH COUNCIL. ON BRIEF:

Mark H. Lynch, COVINGTON & BURLING, Washington, D.C., for

Appellant. Frank W. Hunger, Assistant Attorney General, Helen F.

Fahey, United States Attorney, Anthony J. Steinmeyer, John C.

Hoyle, E. Roy Hawkens, Edward Himmelfarb, Civil Division,

UNITED STATES DEPARTMENT OF JUSTICE, Washington,

D.C.; Lcdr. Edward S. White, Office of the Judge Advocate General,

DEPARTMENT OF THE NAVY, Washington, D.C., for Appellees.

Melissa Wells- Petry, Washington, D.C., for Amicus Curiae FAMILY

RESEARCH COUNCIL. Chai R. Feldblum, Washington, D.C., for

Amici Curiae UNION OF AMERICAN HEBREW CONGREGA-

TIONS, et al. Beatrice Dohrn, Evan Wolfson, Jon W. Davidson,

LAMBDA LEGAL DEFENSE AND EDUCATION FUND, New

York, New York; Ruth E. Harlow, Marc E. Elovitz, Matthew Coles,

AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New

York, New York, for Amici Curiae ACLU and LAMBDA LEGAL

DEFENSE AND EDUCATION FUND. Jeffrey L. Bleich,

MUNGER, TOLLES & OLSON, San Francisco, California;

George C. Freeman, III, HUNTON & WILLIAMS, Richmond, Vir-

ginia, for Amicus Curiae SERVICEMEMBERS LEGAL DEFENSE

NETWORK. Arthur C. Schulcz, Sr., Vienna, Virginia, for Amici

Curiae IAOMAI and IOTA LEGAL DEFENSE FUND.

_________________________________________________________________

OPINION

WILKINSON, Chief Judge:

Former Navy Lieutenant Paul G. Thomasson challenges the consti-

tutional validity of Section 571 of the National Defense Authorization

Act for Fiscal Year 1994, 10 U.S.C. § 654, and the Department of

Defense Directive that governs homosexuality in the military, pursu-

ant to which Thomasson received an honorable discharge from the

Navy. We hold that the challenged statute is constitutional and that

the discharge represented an appropriate exercise of military authority

under the Act. In so holding, we affirm the judgment of the district

court.

We shall set forth at the outset the relevant statutory framework in

this case. In November, 1993, after lengthy deliberations, Congress

approved and the President signed the National Defense Authoriza-

tion Act, which codified a policy with respect to homosexuality and

the armed forces. That policy came to be colloquially known as

"Don't Ask, Don't Tell." In a series of findings that established the

predicate for the policy, Congress declared that"[m]ilitary life is fun-

damentally different from civilian life," 10 U.S.C. § 654(a)(8), and

that "[s]uccess in combat requires military units that are characterized

by high morale, good order and discipline, and unit cohesion," 10

U.S.C. § 654(a)(6). Thus acknowledging that the demands of military

life are distinctive, Congress further determined that "[t]he prohibition

against homosexual conduct is a long- standing element of military

law that continues to be necessary in the unique circumstances of mil-

itary service." 10 U.S.C. § 654(a)(13). It also found that service mem-

bers who demonstrate a "propensity or intent to engage in

homosexual acts [ ] create an unacceptable risk to the high standards

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

essence of military capability." 10 U.S.C. § 654(a)(15).

In order to avoid this risk, the Act provides that members shall be

separated from the armed services if one of three findings is made:

the service member engaged or attempted to engage in homosexual

acts, 10 U.S.C. § 654(b)(1); the service member married or attempted

to marry a person of the same sex, 10 U.S.C. § 654(b)(3); or the ser-

vice member "stated that he or she is a homosexual . . . unless there

is a further finding . . . that the member has demonstrated that he or

she is not a person who engages in, attempts to engage in, has a pro-

pensity to engage in, or intends to engage in homosexual acts." 10

U.S.C. § 654(b)(2). It is pursuant to this last provision- - the "state-

ments" provision- - that Thomasson was honorably discharged from

the Navy.

In December, 1993, the Department of Defense announced Direc-

tives implementing the Act. Like the statute, the applicable Directive

provides for separation if an officer "has engaged in . . . homosexual

act[s]," "has married or attempted to marry" another of the same sex,

or "has made a statement that he or she is a homosexual" and fails to

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." DoD Dir. 1332.30, Encl. 2,¶ C, at 2- 1, 2- 2. The

Directive also provides that the officer's statement"creates a rebutta-

ble presumption that the officer engages in homosexual acts or has a

propensity or intent to do so." DoD Dir. 1332.30, Encl. 2, ¶ C.1.b., at

2- 2. The officer is informed of this presumption and afforded an

opportunity to rebut it by presenting appropriate evidence. Id.

Whether the presumption has been rebutted is determined by a variety

of factors: whether the officer has engaged in homosexual acts; the

officer's credibility; testimony from others about the officer's past

conduct; the nature and circumstances of the officer's statement; and

any other evidence relevant to whether the officer has a propensity or

intent to engage in homosexual acts. Id.

Paul G. Thomasson, the plaintiff in this case, rose to the rank of

Lieutenant in his ten year Naval career. Thomasson's service record

has been a commendable one. Thomasson v. Perry , 895 F. Supp. 820,

823, 829 (E.D. Va. 1995). Thomasson consistently received the high-

est possible performance ratings, he was one of a few junior officers

selected for a Joint Chiefs of Staff Internship, and his supervisors,

including senior Naval officers, praised his work. Rear Admiral Lee

F. Gunn, for example, stated in an evaluation that Thomasson was "a

true `front runner' who should be groomed for the most senior leader-

ship in tomorrow's Navy."

In early March, 1994, soon after reading the Navy message imple-

menting the DoD Directives, Thomasson wrote and presented a letter

to four Admirals for whom he served. Noting in the letter that "the

time has come when I can remain silent no longer," Thomasson stated

"I am gay" and expressed strong disagreement with the military's pol-

icy. In accordance with that policy, the Navy initiated separation pro-

ceedings against him. In May, 1994, a three- member Board of Inquiry

convened and conducted a two day hearing. At the hearing, the Navy

conceded that Thomasson had an "enviable" service record. But in

seeking his separation, it relied both upon Thomasson's declaration

that he was gay and the testimony of one of the Admirals who

received the letter. The Navy advised the Board of the congressional

findings that supported the Act and the meaning of the military's

Directive. Under the Act and Directive, it argued, Thomasson's letter

gave rise to a presumption that he had a propensity or intent to engage

in homosexual acts which, if unrebutted, warranted separation.

For his part, Thomasson presented a copy of his service record, live

and written testimony from co- workers who expressed admiration for

his capabilities and professionalism, a statement recounting his career

and his decision to write the letter announcing that he was gay, and

expert testimony on both homosexuality and the meaning of the mili-

tary's policy. But Thomasson did not, as the district court observed,

tender evidence to rebut the presumption that arose from his declara-

tion of homosexuality; that is, he presented no specific evidence on

whether he engaged in or had a propensity or intent to engage in

homosexual acts. 895 F. Supp. at 823. In fact, Thomasson's statement

averred that he would "not go further in degrading myself by disprov-

ing a charge about sexual conduct that no one has made." Id. The

Navy argued that this defense fell short of rebutting the presumption

that arose from Thomasson's declaration of his homosexuality, and

therefore that he should be honorably discharged.

The Board unanimously found that Thomasson's announcement of

his homosexuality gave rise to a presumption of a propensity or intent

to engage in homosexual acts and that this presumption had not been

rebutted. Because he thus violated Navy policy, Thomasson "failed to

demonstrate acceptable qualities of leadership required of an officer

in his grade" and the Board recommended that Thomasson be honor-

ably discharged. A three- member Board of Review unanimously

upheld this finding, and the Chief of Navy Personnel signed Thomas-

son's discharge orders. Id. He was scheduled to be separated in Feb-

ruary, 1995.

Thomasson brought this action in February, 1995, seeking declara-

tory and injunctive relief to prevent his discharge. The district court

preliminarily enjoined Thomasson's discharge pending resolution of

his claims. Ultimately, however, the court granted summary judgment

for the government. It held that the Act and Directive did not violate

equal protection of the laws, the First Amendment, the Due Process

Clause or the Administrative Procedure Act. Id. at 831. Thomasson

appealed that decision and his subsequent discharge from the Navy.

A panel of this court heard argument in September, 1995, and the full

court subsequently voted to hear the case en banc.

II.

A court cannot review a case without considering the context in

which it arises. We shall explore that context in some detail. We do

so out of a belief that this decision implicates in the most fundamental

way the role of courts in our democratic system. Separation of powers

principles form an integral part of the process of judicial review. To

overlook these principles would be as much of an omission as a fail-

ure to address the substance of Thomasson's particular constitutional

claims.

What Thomasson seeks to upset here is a carefully crafted national

political compromise, one that was the product of sustained and deli-

cate negotiations involving both the Executive and Legislative

branches of our government. While still a candidate, President Clin-

ton expressed an intention to revisit the military's policy on homosex-

ual service members. After he was sworn into office, the President on

January 29, 1993, directed the Secretary of Defense to submit to him

a draft Executive Order by July, 1993, "ending discrimination on the

basis of sexual orientation in determining who may serve in the

Armed Forces." Memorandum on Ending Discrimination in the

Armed Forces, 1 Pub. Papers 23 (Jan. 29, 1993). The President

instructed the Secretary to consult with the Joint Chiefs of Staff, Con-

gress, and concerned individuals in developing the Order; the Order

was to be accompanied by a study, which would recommend how the

policy revision could be carried out in a way that was "practical, real-

istic, and consistent with the high standards of combat effectiveness

and unit cohesion our Armed Forces must maintain." Id. While this

review was underway, an interim policy was put in place which, in

part, dictated that new recruits would no longer be questioned about

their sexual orientation.

The issue quickly generated interest in Congress. In early February

of 1993, an amendment was offered in the Senate to the Family and

Medical Leave Act to overturn the interim policy by freezing in place

the military's pre- existing approach with respect to homosexual ser-

vice members. 139 Cong. Rec. S1263 (daily ed. Feb. 4, 1993). This

effort failed, however, 139 Cong. Rec. S1338- 9 (daily ed. Feb. 4,

1993), and the Senate instead adopted a provision calling for a review

of the military's policy by the Secretary of Defense and the Senate

Armed Services Committee, a review that was to be completed by

July, 1993, 139 Cong. Rec. S1263, S1338 (daily ed. Feb. 4, 1993).

After House approval, this amendment was enacted into law. Pub. L.

103- 3 § 601, 107 Stat. 6, 28- 9 (1993).

In the first seven months of 1993, both the Executive Branch and

Congressional committees engaged in an extensive review of the mili-

tary's policy. The Senate Armed Services Committee held no less

than nine days of hearings, including a field hearing at the Norfolk

Naval Complex, taking testimony from nearly fifty witnesses. The

House Armed Services Committee held five days of hearings. Wit-

nesses who appeared at these hearings represented a broad range of

views and backgrounds. They included: the Secretary of Defense and

the Chairman of the Joint Chiefs of Staff; military and legal experts;

enlisted personnel, officers and senior military leaders; and activists

supporting and opposing the military's policy. See Assessment of the

Plan to Lift the Ban on Homosexuals in the Military: Hearings Before

the Military Forces and Personnel Subcomm. of the House Comm. on

Armed Services, 103d Cong., 1st Sess. (1993) (Assessment of the

Plan: House Hearings); Policy Concerning Homosexuality in the

Armed Forces: Hearings Before the Senate Comm. on Armed

Services, 103d Cong., 1st Sess. (1993) (Senate Hearings); Policy

Implications of Lifting the Ban on Homosexuals in the Military: Hear-

ings Before the House Comm. on Armed Services, 103d Cong., 1st

Sess. (1993) (Policy Implications: House Hearings).

At the same time, the Department of Defense conducted its own

exhaustive review. It convened a military working group composed

of senior members of each service, commissioned a study by the Rand

Corporation, initiated regular consultations with the Joint Chiefs of

Staff and leaders of each service, studied the history of the military's

response to social change, and consulted legal experts. General Colin

N. Powell described the consideration by the Joint Chiefs of Staff in

this way: "We have challenged our assumptions. We have argued

with each other. We have consulted with commanders at all levels."

Assessment of the Plan: House Hearings, at 31.

On July 19, 1993, President Clinton announced a new policy on

homosexuals in the military developed as a result of the Defense

Department's review. The President and Secretary of Defense

explained that under the new policy applicants for military service

would not be asked or required to reveal their sexual orientation, but

once in the service they would be separated for homosexual conduct.

1 Pub. Papers 1111 (July 19, 1993); Senate Hearings, at 705 (State-

ment of Secretary of Defense, Les Aspin). The Armed Services Com-

mittees of the House and Senate then reviewed the policy in detail.

In late July, 1993, drawing on the combined wisdom of this

exhaustive examination in the Executive and Legislative branches, the

House and Senate Armed Services Committees proposed to codify the

military's policy on homosexual service members. The Senate stated

that its proposal was developed only after the committee considered

"a wide range of experiences, including those of current and former

servicemembers who have publicly identified themselves as gay or

lesbian. The committee received a broad variety of views . . . . The

committee carefully considered all points of view in developing its

recommendations." S. Rep. No. 112, 103d Cong., 1st Sess. 270

(1993). Likewise, the House committee reported that its recommenda-

tion was based on "an extensive hearing record, as well as a full con-

sideration of the extended public debate on this issue." H. R. Rep. No.

200, 103d Cong., 1st Sess. 287 (1993), reprinted in 1993

U.S.C.C.A.N. 2013, 2074.

Before the policy was finally enacted, the full House and Senate

undertook a thorough debate of it, and both houses considered amend-

ments on the floor. Each house discussed and rejected companion

amendments that, in place of the proposed codification, would have

permitted the President and military leaders to develop whatever pol-

icy they deemed appropriate. 139 Cong. Rec. S11168- 11228 (daily

ed. Sept. 9, 1993); 139 Cong. Rec. H7080- 84 (daily ed. Sept. 28,

1993). The House also debated and rejected a proposal to require the

Defense Department to resume its questioning of new recruits about

their sexual orientation. 139 Cong. Rec. H7084- 86 (daily ed. Sept. 28,

1993).

Both houses ultimately approved the committee proposals. In the

words of the Chairman of the Senate Armed Services Committee, the

provision was "as fair as we can be to the individuals involved, while,

at the same time, maintaining the kind of unit cohesion and military

effectiveness that we expect our military services to be able to carry

out and perform for the country." 139 Cong. Rec. S11205 (daily ed.

Sept. 9, 1993); see also 139 Cong. Rec. H7086- 89 (daily ed. Sept. 28,

1993). Finally, the Act was signed by the President on November 30,

1993.

What Thomasson challenges, therefore, is a statute that embodies

the exhaustive efforts of the democratically accountable branches of

American government and an enactment that reflects month upon

month of political negotiation and deliberation. Such products of the

democratic process are seldom completely tidy or universally satisfac-

tory, but it is precisely on that account that they deserve judicial

respect. An Act of Congress reflects a range of views that a judicial

decision cannot replicate. Indeed, Justice Holmes admonished that

judging the constitutionality of an Act of Congress is "the gravest and

most delicate duty" that a court performs. Blodgett v. Holden, 275

U.S. 142, 148 (1927). And "[g]iven the deference due `the duly

enacted and carefully considered decision of a coequal and represen-

tative branch of our Government', [this court cannot] lightly second-

guess such legislative judgments . . . ." Westside Community Bd. of

Ed. v. Mergens, 496 U.S. 226, 251 (1990) (O'Connor, J.) (quoting

Walters v. National Assn. of Radiation Survivors, 473 U.S. 305, 319

(1985)) (other citation omitted).

Thomasson requests that we simply set aside these lengthy labors

of the legislative process and supplant with our own judicial judgment

the product of a serious and prolonged debate on a subject of para-

mount national importance. This would, however, be a step of sub-

stantial gravity. The courts were not created to award by judicial

decree what was not achievable by political consensus. Our power to

resolve particular controversies carries with it an obligation to respect

general solutions. To overturn those solutions in the absence of a clear

constitutional mandate would transform the judiciary into an instru-

ment of disenfranchisement for all who use the political process to

The Supreme Court could have been speaking about this very Act

when it observed that the question "received considerable national

attention and was the subject of wide- ranging public debate [and] was

extensively considered by Congress in hearings, floor debate, and in

committee." Rostker v. Goldberg, 453 U.S. 57, 72 (1981) (sustaining

constitutionality of all- male draft registration). Congress has enacted

and the President has signed legislation providing that a propensity or

intent to engage in homosexual acts is incompatible with the distinc-

tive requirements of military service. This considered judgment on the

part of the coordinate branches of our government is one that the third

branch has a solemn duty to respect.

III.

Thomasson's challenge cannot be viewed apart from the special

legal status of military life. The Constitution assigns the conduct of

military affairs to the Legislative and Executive branches. There is

nothing timid or half- hearted about this constitutional allocation of

authority. Rather, the Constitution states fully and directly that the

governance of military affairs is a shared responsibility of Congress

and the President:

The Congress shall have Power To lay and collect Taxes,

Duties, Imposts and Excises, to pay the Debts and provide

for the common Defence and general Welfare of the United

States . . . .

To declare War, grant Letters of Marque and Reprisal, and

make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of

Money to that Use shall be for a longer Term than two

Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the

land and naval Forces;

To provide for calling forth the Militia to execute the Laws

of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the

Militia, and for governing such Part of them as may be

employed in the Service of the United States, reserving to

the States respectively, the Appointment of the Officers, and

the Authority of training the Militia according to the disci-

pline prescribed by Congress;

U.S. CONST. art I, § 8.

The President shall be Commander in Chief of the Army

and Navy of the United States, and of the Militia of the sev-

eral States, when called into the actual Service of the United

States;

U.S. CONST. art II, § 2.

This constitutional framework was adopted by the Founders in

order that our newly christened nation might best defend itself. See

Federalist No. 23 (Alexander Hamilton) (Mentor, 1961). As Hamilton

explained:

The authorities essential to the common defense . . . ought

to exist without limitation because it is impossible to foresee

or to define the extent and variety of national exigencies,

and the correspondent extent and variety of the means

which may be necessary to satisfy them. The circumstances

that endanger the safety of nations are infinite, and for this

reason no constitutional shackles can wisely be imposed on

the power to which the care of it is committed.

Id. at 153 (emphasis in original). Hamilton believed that this authority

should include "any matter essential to the formation, direction, or

support of the NATIONAL FORCES." Id. at 154 (emphasis in origi-

nal).

Thus, it is no surprise that the Founders failed to provide the fed-

eral judiciary with a check over the military powers of Congress and

the President. See U.S. CONST. art III. To do so would have placed,

in Hamilton's words, a "constitutional shackle" on the ability of Con-

gress and the President to carry out the duties attendant to national

security. Moreover, the virtue of placing military power in the demo-

cratic branches was obvious: "[I]f the majority should be really dis-

posed to exceed the proper limits, the community will be warned of

the danger [by the minority], and [the community] will have an

opportunity of taking measures to guard against it." Federalist No. 26,

at 172 (Alexander Hamilton). The federal judiciary- - appointed with

life tenure- - was not regarded as an appropriate repository for such

immense power and accordingly was given "no influence over either

the sword or the purse." Federalist No. 78 , at 465 (Alexander Hamil-

ton).

Thus, our Constitution does not authorize the courts to lay and col-

lect taxes to provide for the common defense. The Constitution does

not allow the courts to declare war or to raise armies. The judiciary

has no authority to make rules for the regulation of military forces.

Nor does the Constitution declare the Supreme Court to be the Com-

mander in Chief. By comparison to its predecessors, Article III is a

sparse provision, granting no enumerated powers of any kind, but

merely jurisdiction "with such Exceptions, and under such Regula-

tions as the Congress shall make." U.S. CONST. art III, § 2.

Because "the Constitution contemplates that Congress has `plenary

control over rights, duties, and responsibilities in the framework of

the Military Establishment, including regulations, procedures, and

remedies related to military discipline,'" Weiss v. United States, 114

S. Ct. 752, 760 (1994) (quoting Chappell v. Wallace, 462 U.S. 296,

301 (1983)), the Supreme Court has consistently approached congres-

sional decisions made pursuant to the national security clauses with

great respect. In fact, "judicial deference to [a] congressional exercise

of authority is at its apogee when legislative action under the congres-

sional authority to raise and support armies and make rules and regu-

lations for their governance is challenged." Rostker, 453 U.S. at 70;

see also Weiss, 114 S. Ct. at 760- 61.

The deference mandated by the Constitution has extended to a vari-

ety of challenges to Congressional and Executive decisions: Con-

gress' power to order members of the National Guard into service,

Perpich v. Department of Defense, 496 U.S. 334 (1990); the Presi-

dent's authority as Commander in Chief to "classify and control

access to information bearing on national security," Department of the

Navy v. Egan, 484 U.S. 518, 527 (1988); Congress' decision to

require only males to register for the draft, Rostker, 453 U.S. at 57;

Congress' regulation of the conduct of military personnel under the

Uniform Code of Military Justice, Parker v. Levy , 417 U.S. 733

(1974); and the President's discretion as Commander in Chief to grant

a military commission, Orloff v. Willoughby, 345 U.S. 83 (1953).

Courts have also held that the question of a war's legality is nonjusti-

ciable. Atlee v. Laird, 347 F. Supp. 689 (E.D.Pa. 1972), aff'd

summarily sub nom. Atlee v. Richardson, 411 U.S. 911 (1973).

Aside from the Constitution itself, the need for deference also

arises from the unique role that national defense plays in a democ-

racy. Because our nation's very preservation hinges on decisions

regarding war and preparation for war, the nation collectively, as

expressed through its elected officials, faces "`the delicate task of bal-

ancing the rights of servicemen against the needs of the military.'"

Weiss, 114 S. Ct. at 761 (quoting Solorio v. United States, 483 U.S.

435, 447- 48 (1987)). To the degree that the judiciary is permitted to

circumscribe the national security options of our elected officials, it

"decreases the ability of the political branches to impose their will on

another [nation and at] the worst, it permits the imposition of the will

of another [nation] on the United States." James M. Hirschhorn, The

Separate Community: Military Uniqueness and Servicemen's Consti-

tutional Rights, 62 N.C. L. Rev. 177, 237- 238 (1983). After all,

"[u]nless a society has the capability . . . to defend itself from the

aggressions of others, constitutional protections of any sort have little

meaning." Wayte v. United States, 470 U.S. 598, 612 (1985).

National defense decisions not only implicate each citizen in the

most profound way. Such decisions also require policy choices, which

the legislature is equipped to make and the judiciary is not. "Con-

gress, working with the Executive Branch, has developed a system of

military criminal and administrative law that carefully balances the

rights of individual servicemembers and the needs of the armed

forces." Sam Nunn, The Fundamental Principles of the Supreme

Court's Jurisprudence in Military Cases, 29 Wake Forest L. Rev.

557, 566 (1994). While Congress and the President have access to

intelligence and testimony on military readiness, the federal judiciary

does not. While Congress and the members of the Executive Branch

have developed a practiced expertise by virtue of their day- to- day

supervision of the military, the federal judiciary has not. The judiciary

has no Armed Services Committee, Foreign Relations Committee,

Department of Defense, or Department of State. As the Supreme

Court has noted, "the lack of competence on the part of the courts

[with respect to military judgments] is marked." Rostker, 453 U.S. at

65. In fact,

it is difficult to conceive of an area of governmental activity

in which the courts have less competence. The complex,

subtle, and professional decisions as to the composition,

training, equipping, and control of a military force are

essentially professional military judgments, subject always

to civilian control of the Legislative and Executive

Branches.

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

Finally, the imprimatur of the President, the Congress, or both

imparts a degree of legitimacy to military decisions that courts cannot

hope to confer. Even when there is opposition to a proposed change

- - as when Congress abolished flogging in the 19th century or when

President Truman ended the military's racial segregation in 1948, see

Hirschhorn, 62 N.C. L. Rev. at 243- 45- - the fact that the change ema-

nates from the political branches minimizes both the likelihood of

resistance in the military and the probability of prolonged societal

division. In contrast, when courts impose military policy in the face

of deep social division, the nation inherently runs the risk of long-

term social discord because large segments of our population have

been deprived of a democratic means of change. In the military con-

text, such divisiveness could constitute an independent threat to

national security.

Parallel to the deference owed Congressional and Presidential poli-

cies is deference to the decision- making authority of military person-

nel who "have been charged by the Executive and Legislative

Branches with carrying out our Nation's military policy." Goldman v.

Weinberger, 475 U.S. 503, 508 (1986). Judicial interference with the

subordinate decisions of military authorities frustrates the national

security goals that the democratic branches have sought to achieve.

The Supreme Court has recognized the need for deference when

facing challenges to a variety of military decisions: a policy that pro-

hibited the wearing of headgear in certain circumstances, Goldman,

475 U.S. at 506 (noting that the military is "a specialized society sep-

arate from civilian society"); an Air Force regulation that required

service members to obtain permission before circulating petitions on

bases, Brown v. Glines, 444 U.S. 348, 357 (1980) (noting that "the

military must possess substantial discretion over its internal disci-

pline"); a base policy that prohibited certain political activity on base

premises, Greer v. Spock, 424 U.S. 828, 837 (1976) (noting "the spe-

cial constitutional function of the military in our national life"); and

military court- martial proceedings, Schlesinger v. Councilman, 420

U.S. 738, 757 (1975) (noting that "[t]o prepare for and perform its

vital role, the military must insist upon a respect for duty and disci-

pline without counterpart in civilian life").

The need for deference also derives from the military's experience

with the particular exigencies of military life. Among these is the

attainment of unit cohesion- - "the subordination of personal prefer-

ences and identities in favor of the overall group mission" and "the

habit of immediate compliance with military procedures and orders."

Goldman, 475 U.S. at 508. Should the judiciary interfere with the

intricate mix of morale and discipline that fosters unit cohesion, it is

simply impossible to estimate the damage that a particular change

could inflict upon national security- - "there is no way to determine

and correct the mistake until it has produced the substantial and some-

times irreparable cost of [military] failure." Hirschhorn, 62 N.C. L.

Rev. at 240.

Here the judiciary has been asked in effect to evaluate the appropri-

ate policy regarding homosexuality in the military. The need for cir-

cumspection is as real as in the previous military cases decided by the

Supreme Court. See Steffan v. Perry, 41 F.3d 677, 686 (D.C. Cir.

1994) (en banc). The elected branches have already weighed the con-

tribution that homosexual service members might make against the

disruption that homosexual acts and propensities could cause. The

particular policy before us is, as we have noted, the product of exten-

sive deliberation on the part of Congress and the President. In the end,

alternatives to that policy were rejected because"the maintenance of

military unit cohesion- - which is the key to combat capability- - . . .

must remain paramount over the desires of a single individual or

group." H. R. Rep. No. 200, at 2074. To the extent that our renounce-

ment of the accepted policy would require adoption of a rejected one,

the damage inflicted by judicial decree on democratic decision-

making will have been immense.

We likewise owe respect to the military's "estimation of the effect

of homosexual conduct on military discipline." Steffan, 41 F.3d at

686. This estimation will be made through innumerable personnel

decisions informed by the military's assessment of the unique

demands of military life. Here, in accordance with military policy, the

Navy instituted separation proceedings through a three- member

Board of Inquiry, which heard two days of testimony and unani-

mously voted to honorably discharge Thomasson. The Board of

Inquiry's decision was unanimously upheld by a three- member Board

of Review, and the Chief of Navy Personnel signed Thomasson's dis-

charge orders. While Thomasson now claims that he successfully

rebutted the presumption created by his statement, the military boards

found otherwise because Thomasson presented no specific evidence

on whether he engaged in or had a propensity to engage in homosex-

ual acts. "The federal court is not the appropriate forum in which to

review the multitude of personnel decisions that are made daily by

public agencies." Bishop v. Wood, 426 U.S. 341, 349 (1976); see also

Collins v. Harker Heights, 503 U.S. 115, 129 (1992) ("The Due Pro-

cess Clause `is not a guarantee against incorrect or ill- advised person-

nel decisions'") (quoting Bishop, 426 U.S. at 350). If this is true of

state personnel decisions (in Bishop, a police officer fired by a city

manager), it should be all the more true in military affairs, where

respect for the military's internal personnel system is an essential

component of the most fundamental of constitutional pursuits,

national security itself.

None of this means, of course, that the statute before us may escape

constitutional scrutiny. Rather, it is part of the process of constitu-

tional scrutiny to recognize when the Constitution itself requires spe-

cial deference. Rostker, 453 U.S. at 67. In the area of military affairs,

the constitutional chartering of popular control is powerfully clear and

purposefully redundant. Ultimately, "[t]he special status of the mili-

tary has required, the Constitution has contemplated, Congress has

created, and [the Supreme] Court has long recognized" that constitu-

tional challenges to military personnel policies and decisions face

heavy burdens. Chappell, 462 U.S. at 303- 4. It is with those burdens

in mind that we address appellant's particular arguments.

IV.

We turn first to Thomasson's contention that the statute, on its face

and as applied, contravenes the Fifth Amendment's guarantee of

equal protection of the laws. Thomasson claims that the stated justifi-

cation for this statute- - the protection of unit cohesion- - is not a legiti-

mate one because it is nothing more than a pretext for prejudice

against homosexual service members. He maintains that the means

chosen by Congress to promote this statutory purpose are also flawed

because they treat declared homosexuals differently from heterosexu-

als and from homosexuals who decline to declare their sexual orienta-

tion.

We address initially Thomasson's effort to invoke heightened judi-

cial scrutiny of this statutory scheme. The searching review that is the

hallmark of strict scrutiny is appropriate only in limited cases, where

the statute classifies along inherently suspect lines or burdens the

exercise of a fundamental constitutional right. Heller v. Doe, 113 S.

Ct. 2637, 2642 (1993); Cleburne v. Cleburne Living Center, Inc., 473

U.S. 432, 440 (1985). Only a few classifications trigger heightened

scrutiny. See, e.g., Loving v. Virginia , 388 U.S. 1, 11 (1967) (race

subject to strict scrutiny); Korematsu v. United States, 323 U.S. 214,

216 (1944) (national ancestry and ethnic origin subject to strict scru-

tiny); Clark v. Jeter, 486 U.S. 456, 461 (1988) (illegitimacy subject

to intermediate scrutiny); Mississippi Univ. for Women v. Hogan, 458

U.S. 718, 723- 24 (1982) (gender subject to intermediate scrutiny).

And because heightened scrutiny requires an exacting investigation of

legislative choices, the Supreme Court has made clear that "respect

for the separation of powers" should make courts reluctant to estab-

lish new suspect classes. Cleburne, 473 U.S. at 441; see also Lyng v.

Castillo, 477 U.S. 635, 638 (1986) (declining to extend strict scrutiny

to "[c]lose relatives"); Massachusetts Bd. of Retirement v. Murgia,

427 U.S. 307, 313 (1976) (per curiam) (declining to extend strict scru-

tiny to the elderly). This reluctance has even more force when the

intense judicial scrutiny would be applied to the"specialized society"

of the military. Parker, 417 U.S. at 743.

The statutory classification here is not suspect, nor does it burden

any fundamental right. Section 654(b) is aimed at service members

who engage in or have a propensity to engage in homosexual acts. A

class comprised of service members who engage in or have a propen-

sity or intent to engage in such acts is not inherently suspect. See

Steffan, 41 F.3d at 684 n.3 (classification comprised of persons who

engage in acts that the military can legitimately proscribe is not sus-

pect). Similarly, there is no fundamental constitutional right on the

part of a service member to engage in homosexual acts and there is

a legitimate military interest in preventing the same. Heightened scru-

tiny of this statute would involve the judiciary in an inventive consti-

tutional enterprise, and it would frustrate the elected branches of

government in their efforts to deal with this question. Rational basis

is accordingly the suitable standard of review.

It is settled law that rational basis review "is not a license for courts

to judge the wisdom, fairness, or logic of legislative choices." F.C.C.

v. Beach Communications, Inc., 113 S. Ct. 2096, 2101 (1993); see

also Nordlinger v. Hahn, 505 U.S. 1, 10 (1992); United States Rail-

road Retirement Bd. v. Fritz, 449 U.S. 166, 175 (1980). The question

is simply whether the legislative classification is rationally related to

a legitimate governmental interest. Heller, 113 S. Ct. at 2642. Under

this standard, the Act is entitled to "a strong presumption of validity,"

id., and must be sustained if "`there is any reasonably conceivable

state of facts that could provide a rational basis for the classifica-

tion,'" id. at 2642- 43 (quoting Beach Communications, 113 S. Ct. at

2101). To sustain the validity of its policy, the government is not

required to provide empirical evidence. "[A] legislative choice is not

subject to courtroom factfinding . . . ." Beach Communications, 113

S. Ct. at 2102. Rather, "`[t]he burden is on the one attacking the legis-

lative arrangement to negative every conceivable basis which might

support it.'" Heller, 113 S. Ct. at 2643 (quoting Lehnhausen v. Lake

Shore Auto Parts Co., 410 U.S. 356, 364 (1973)).

Under these standards, the Act does not violate the equal protection

guarantee. Instead, it reflects a legitimate legislative choice. Whether

members of the judicial branch agree or disagree with that choice is

irrelevant, for the Constitution envisions the rule of law, not the reign

of judges. Congress, after months of discussion, concluded that those

who engage in or have a propensity to engage in homosexual acts

impair military readiness. The Act accordingly observes that the

"long- standing" prohibition on homosexual conduct "continues to be

necessary in the unique circumstances of military service," 10 U.S.C.

§ 654(a)(13), and that "[t]he presence in the armed forces of persons

who demonstrate a propensity or intent to engage in homosexual acts

would create an unacceptable risk to the high standards of morale,

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

military capability," 10 U.S.C. § 654(a)(15).

These judgments reflect in turn Congress' view of military life,

which can be, on a round- the- clock basis, "spartan, primitive, and

characterized by forced intimacy with little or no privacy." 10 U.S.C.

§ 654(a)(12). Out of this forced intimacy are forged the bonds that

create unit cohesion, which Congress found to be a"critical ele-

ment[ ]" of combat readiness. 10 U.S.C.§ 654(a)(7). In short, "to 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 . . . . We cannot allow anything to happen which would disrupt

that feeling of cohesion within the force." Senate Hearings, at 708

(Statement of Chairman of the Joint Chiefs of Staff, General Colin L.

Powell). Military leaders testified time and again how unit cohesion

would be undermined: "[I]n my years of military service, I have expe-

rienced the fact that the introduction of an open homosexual into a

small unit immediately polarizes that unit and destroys the very bond-

ing that is so important for the unit's survival in time of war." S. Rep.

No. 112, at 280 (Statement of General H. Norman Schwarzkopf).

It was legitimate, therefore, for Congress to conclude that sexual

tensions and attractions could play havoc with a military unit's disci-

pline and solidarity. It was appropriate for Congress to believe that a

military force should be as free as possible of sexual attachments and

pressures as it prepared to do battle. Any argument that Congress was

misguided in this view is one of legislative policy, not constitutional

law. Courts have held that military authorities may discharge those

who engage in homosexual acts. Steffan, 41 F.3d at 685 and n.4;

Meinhold v. United States Dept. of Defense, 34 F.3d 1469, 1477 (9th

Cir. 1994); Ben- Shalom v. Marsh, 881 F.2d 454, 464- 65 (7th Cir.

1989), cert. denied, 494 U.S. 1004 (1990); Dronenburg v. Zech, 741

F.2d 1388, 1398 (D.C. Cir. 1984).

Given that it is legitimate for Congress to proscribe homosexual

acts, it is also legitimate for the government to seek to forestall these

same dangers by trying to prevent the commission of such acts. See

Steffan, 41 F.3d at 685- 86; Ben- Shalom, 881 F.2d at 464. The state-

ments provision, by discharging those with a propensity or intent to

engage in homosexual acts, operates in this preventive way. As the

Senate Committee described the provision: "[i]t is appropriate for the

armed forces to separate the individual from military service without

waiting until the individual's propensity or intent . . . ripens into spe-

cific conduct prejudicial to good order and discipline." S. Rep. No.

112, at 294. This goal is itself a valid one. No constitutional constraint

prohibits the military from preventing acts that would threaten combat

capability. See Greer, 424 U.S. at 840; see also Steffan, 41 F.3d at

689; Ben- Shalom, 881 F.2d at 460- 61, 464.

The conditions of military life, whether in barracks or aboard ship

or in situations of collective peril, may throw service members into

situations where sexual tensions are especially unwelcome. S. Rep.

No. 112, at 277- 80. "Many soldiers experience a forced association

24 hours a day. They work together; they eat together; they share liv-

ing space together; they train together; they shop for groceries

together; they worship together. Same- gender sexual attraction in

such a `forced association' environment is something that civilians

rarely experience and cannot fully understand." Senate Hearings, at

762 (Statement of General Gordon Sullivan). Section 654(b) thus

accommodates the reasonable privacy concerns of heterosexual ser-

vice members and reduces the sexual problems that may arise when

some members of the unit have a propensity or intent to engage in

homosexual acts and others do not. These same concerns for privacy

and sexual tension explain the military's policy of providing service

men and women with separate living quarters. Id. at 277- 78.

Thomasson maintains that the statements provision of§ 654(b)(2)

is not rationally related to the interests of unit cohesion and protection

of sexual privacy, even if those interests could be seen to be legiti-

mate. He argues that it is not rational or permissible to presume that

declared homosexuals possess a unique propensity to engage in

homosexual acts.

We think, however, that the means chosen by Congress in the Act

are rationally related to legitimate legislative ends. The presumption

that declared homosexuals have a propensity or intent to engage in

homosexual acts certainly has a rational factual basis. See Steffan, 41

F.3d at 686; Ben- Shalom, 881 F.2d at 464. In fact, the presumption,

which Thomasson was explicitly advised of, represents perhaps the

most sensible inference raised by a declaration of one's sexual orien-

tation. As the Senate Committee noted: "It would be irrational . . . to

develop military personnel policies on the basis that all gays and les-

bians will remain celibate . . . ." S. Rep. No. 112, at 284. Although

Thomasson argues that some declared homosexuals have not engaged

in or do not have a propensity or intent to engage in homosexual acts,

"courts are compelled . . . to accept a legislature's generalizations

even when there is an imperfect fit between means and ends." Heller,

113 S. Ct. at 2643. As a general matter, the legislature was certainly

entitled to presume that a service member who declares that he is gay

has a propensity to engage in homosexual acts. While some service

members have rebutted that presumption before military boards of

review, see Richenberg v. Perry, 909 F.Supp 1303, 1313 (D. Neb.

1995); Able v. United States, 880 F. Supp. 968, 976 (E.D.N.Y. 1995),

Thomasson did not demonstrate that he lacked a propensity to engage

in homosexual acts. The general evidence offered at his discharge

hearing had no bearing on this particular question.

Not only is the presumption rational, it is also permissible. Tho-

masson argues that it is illegitimate to separate him for a mere "pro-

pensity" to engage in acts. But in the civil context, the government

can fashion general employment policies to prevent unsatisfactory

conduct. See New York City Transit Auth. v. Beazer, 440 U.S. 568,

589- 92 (1979) (upholding policy barring methadone users from

employment); Vance v. Bradley, 440 U.S. 93, 106 (1979) (upholding

mandatory retirement age for Foreign Service personnel);

Massachusetts Bd. of Retirement, 427 U.S. at 314- 17 (upholding man-

datory retirement age for police officers). In fact, the statements pre-

sumption is a reasonable means of allocating the burden of proof: It

places the burden on the party with the most knowledge of the facts

(here the military officer), and it frees the military from engaging in

detective work. In a civil setting, moreover, "the locus of the burden

of persuasion is normally not an issue of federal constitutional

moment." Lavine v. Milne, 424 U.S. 577, 585 (1976) (footnote omit-

ted).

Finally, the statute is not, as Thomasson maintains, irrational due

to any purported distinction between declared and undeclared homo-

sexuals. The policy instead rationally initiates discharge proceedings

when service members, by declaring their homosexuality, thereby

provide affirmative evidence to military officials of their propensity

or intent to engage in homosexual acts. Thomasson apparently argues

that the failure of military authorities to inquire into all service mem-

bers' propensity to engage in homosexual acts somehow renders the

policy unconstitutionally imprecise. But the decision to stop question-

ing new recruits about their sexual orientation reflects an allocation

of military resources and a balance of competing interests, one that

does not undermine the basic constitutionality of the Act. Under ratio-

nal basis review, a classification does not fail because it "is not made

with mathematical nicety or because in practice it results in some

inequality." Dandridge v. Williams, 397 U.S. 471, 485 (1970) (cita-

tion omitted); see Vance, 440 U.S. at 108.

In sum, we conclude that the Act represents a legitimate legislative

match of ends and means that withstands appellant's equal protection

challenge.

Thomasson also argues that the statute, both on its face and as

applied, violates the First Amendment. He was, he contends, sepa-

rated from the service for doing nothing more than declaring he was

gay. According to Thomasson, the statements provision of 10 U.S.C.

§ 654 thus operates to suppress speech on the basis of its content and

viewpoint. It does so, he asserts, by making a specific category of

speech- - a statement declaring a service member's homosexuality- -

itself a basis for discharge. As a result, he contends, the provision

must serve a compelling governmental interest and must be necessary

to promote that interest.

Thomasson, however, misinterprets the basic purpose of the policy.

The statute does not target speech declaring homosexuality; rather, it

targets homosexual acts and the propensity or intent to engage in

homosexual acts, and permissibly uses the speech as evidence. The

use of speech as evidence in this manner does not raise a constitu-

tional issue- - "the First Amendment does not prohibit the evidentiary

use of speech to establish the elements of a crime," or, as is the case

here, "to prove motive or intent." Wisconsin v. Mitchell, 113 S. Ct.

2194, 2201 (1993); see Dawson v. Delaware, 503 U.S. 159, 165

(1992); Wayte, 470 U.S. at 610- 14. Discriminatory words often pro-

vide the basis for challenges to discriminatory acts under Title VII,

for instance, see Price Waterhouse v. Hopkins , 490 U.S. 228, 251- 52

(1989) (plurality opinion), yet employers enjoy no First Amendment

right to keep those words out of court. See R.A.V. v. City of St. Paul,

112 S. Ct. 2538, 2546 (1992) (observing that "sexually derogatory

`fighting words,' among other words, may produce a violation of Title

VII's general prohibition against sexual discrimination in employ-

ment practices").

There is no constitutional impediment, therefore, to the use of

speech as relevant evidence of facts that may furnish a permissible

basis for separation from military service. No First Amendment con-

cern would arise, for instance, from the discharge of service members

for declaring that they would refuse to follow orders, or that they

were addicted to controlled substances. Such remarks provide evi-

dence of activity that the military may validly proscribe. And, as we

discussed above, the military may take measures to prevent the com-

mission of sexual activity that it deems detrimental to its mission.

Based upon this rationale, courts have consistently rejected First

Amendment challenges to the use of a service member's declaration

of homosexuality as a basis for separation. See Pruitt v. Cheney, 963

F.2d 1160, 1163- 64 (9th Cir. 1991), cert. denied , 113 S. Ct. 655

(1992); Schowengerdt v. United States, 944 F.2d 483, 489 (9th Cir.

1991), cert. denied, 503 U.S. 951 (1992); Ben- Shalom, 881 F.2d at

462. A declaration of homosexuality, "like most admissions, [is]

made in speech," noted one such court, "but that does not mean that

the first amendment precludes the use of the admission as evidence

of the facts admitted." Pruitt, 963 F.2d at 1164.

Thomasson asserts, however, that this reasoning is not applicable

to the new policy. He points to language in the DoD Directive stating

that "sexual orientation is considered a personal and private matter"

and "is not a bar to continued service." DoD Dir. 1332.30, Enc. 2 ¶ C,

at 2- 1. He infers from this language that speech disclosing one's

homosexuality admits to nothing unlawful, and hence lacks any evi-

dentiary value. According to Thomasson, the policy thus at bottom

distinguishes declared homosexuals from undeclared homosexuals,

penalizing only the former on the basis of their speech.

While imaginative, Thomasson's argument fails to alter our con-

clusion that the new policy is in fact directed at the propensity or

intent of service members to engage in homosexual acts, and uses

speech declaring homosexuality as evidence thereof. First, Thomas-

son's charge that such a declaration lacks any evidentiary value is

patently erroneous. As we explained in rejecting Thomasson's equal

protection challenge, a service member's statement that he is a homo-

sexual has substantial evidentiary value regarding whether he has a

propensity to engage in homosexual acts- - "the military may reason-

ably assume that when a member states that he is a homosexual, that

member means that he either engages or is likely to engage in homo-

sexual conduct." Steffan, 41 F.3d at 686; see Ben- Shalom, 881 F.2d

at 464.

Second, the statutory provision does not at its core distinguish

between declared and undeclared homosexuals, the central premise of

Thomasson's First Amendment argument. Instead, it distinguishes

service members who have a propensity or intent to engage in homo-

sexual acts from other members, and uses a declaration of homosexu-

ality as evidence. The statute's operation confirms as much. Service

members who state that they are homosexual can avoid separation by

rebutting the presumption that they have a propensity or intent to

engage in homosexual acts. 10 U.S.C. § 654(b)(2); DoD Dir. 1332.30,

Enc. 2 ¶ C.1.b., at 2- 2. Although Thomasson chose not to come for-

ward with evidence in this regard, other members subject to discharge

under the statements provision have successfully demonstrated that

they lack a propensity or intent to engage in homosexual acts. See

Richenberg, 909 F.Supp. at 1313; Able, 880 F. Supp. at 976.

Moreover, service members who have never spoken about their

sexual orientation are still subject to separation if they are found to

have engaged or attempted to engage in homosexual acts. 10 U.S.C.

§ 654(b)(1); DoD Dir. 1332.30. Enc. 2 ¶ C.1.a., at 2- 2. In a similar

vein, service members who have not publicly declared their homosex-

uality are nevertheless subject to discharge if they have made private

statements to that effect, when those statements are brought to the

attention of commanding officers and the evidence regarding any

such private statement is credible. See S. Rep. No. 112, at 291- 92.

Again, the statute's essential concern is not with speech declaring

homosexuality, as Thomasson alleges, but is instead with the propen-

sity or intent to engage in acts which Congress has deemed detrimen-

tal to the military's mission.

Because the statute aims at this propensity, not at speech, it is not

a viewpoint- based or content- based regulation. With respect to the

former, the statute's treatment of a declaration of homosexuality is

not based on a desire to suppress any viewpoint that the statement

might convey. The declaration asserts a fact, one that the military uses

as evidence of a propensity or intent to engage in homosexual acts.

The military, however, allows service members to express views on

issues that affect homosexuals. As the district court found, members

are "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." 895 F. Supp. at 825; see DoD Dir.

1332.30, Enc. 8, ¶ C.3.d., at 8- 2; see also Assessment of the Plan:

House Hearings, 35- 37 (Statement of Gen. Colin Powell).

The statute likewise does not discriminate on the basis of the con-

tent of speech. Whenever a provision prohibits certain acts, it neces-

sarily chills speech that constitutes evidence of the acts. A regulation

directed at acts thus inevitably restricts a certain type of speech; this

policy is no exception. But effects of this variety do not establish a

content- based restriction of speech. In Wayte v. United States, for

example, the Supreme Court rejected a First Amendment challenge to

the government's policy of prosecuting only those violators of draft

registration laws who either reported themselves or were reported by

others. 470 U.S. at 610- 14. The petitioner, Wayte, alleged that the

policy "inevitably created a content- based regulatory system" with a

"content- based impact on non- registrants" such as himself. Id. at 611.

But the Supreme Court treated the policy as a content- neutral regula-

tion, observing that letters informing the government of an intent not

to obey conscription requirements "provided strong, perhaps conclu-

sive evidence of the nonregistrant's intent not to comply- - one of the

elements of the offense." Id. at 612- 13.

A regulation is thus "content- neutral so long as it is `justified with-

out reference to the content of the regulated speech,'" even if it has

an "effect on some speakers or messages but not others." Ward v.

Rock Against Racism, 491 U.S. 781, 791 (1989) (citations omitted)

(emphasis in original). For instance, the Supreme Court deemed to be

content- neutral an ordinance that distinguished adult film theaters

from other kinds of theaters, as the regulation was"aimed not at the

content of the films" but at the "effects of such theaters on the sur-

rounding community." City of Renton v. Playtime Theatres, Inc., 475

U.S. 41, 47 (1986) (emphasis in original). The civil rights laws also

penalize a specific type of speech in certain contexts- - speech

expressing discriminatory views- - yet the Supreme Court regards

Title VII "as an example of a permissible content- neutral regulation."

Mitchell, 113 S. Ct. at 2200; see R.A.V., 112 S. Ct. at 2546. The mili-

tary policy here is justified on a content- neutral, nonspeech basis: pre-

venting the disruptions that homosexual activity among service

members might have on military readiness. That the policy may hinge

the commencement of administrative proceedings on a particular type

of statement does not convert it into a content- based enactment. See

Wayte, 470 U.S. at 610- 14.

Thomasson's constitutional challenge faces yet another hurdle.

Members of the armed services have never possessed all the First

Amendment rights of the civilian population. Rather, the Supreme

Court has made clear that special First Amendment considerations

surround the military environment. The Supreme Court has character-

ized its "review of military regulations challenged on First Amend-

ment grounds" as "far more deferential than constitutional review of

similar laws or regulations designed for civilian society." Goldman,

475 U.S. at 507. In Brown v. Glines, for instance, the Supreme Court

upheld against a First Amendment challenge Air Force regulations

that required service members to obtain permission from their base

commanders before circulating petitions, noting that "`[s]peech that is

protected in the civil population may . . . undermine the effectiveness

of response to command.'" 444 U.S. at 354 (citations omitted). In

general, the Court observed, "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.'" Id. (quoting

Parker, 417 U.S. at 758).

Finally, even with respect to non- military public employment, gov-

ernment may restrict certain types of speech to promote the effective

performance of its function. See Waters v. Churchill, 114 S. Ct. 1878

(1994); Connick v. Myers, 461 U.S. 138 (1983); Pickering v. Board

of Educ., 391 U.S. 563 (1968). In such cases, courts must give "full

consideration" to "the government's interest in the effective and effi-

cient fulfillment of its responsibilities to the public." Connick, 461

U.S. at 150. Indeed, "where the government is employing someone

for the very purpose of effectively achieving its goals," restrictions on

speech "may well be appropriate." Waters , 114 S. Ct. at 1888 (plural-

ity opinion). Congress expressly found that the statute at issue here

was justified on grounds relating to performance of the military func-

tion, perhaps the most important of all governmental responsibilities.

10 U.S.C. § 654(a)(15). For the same reasons we identified in reject-

ing Thomasson's equal protection claim, the use of statements of

one's homosexuality as evidence of a propensity or intent to engage

in homosexual acts is justifiable under the standards associated with

content- neutral military rules, see Glines, 444 U.S. at 354- 55, and as

an allowable means of furthering the nation's military mission.

VI.

In a final series of catch- all claims, Thomasson alleges that the Act

violates basic guarantees of due process and procedural fairness con-

ferred by the Constitution and the Administrative Procedure Act. 5

U.S.C. §§ 551 et. seq. First, he contends that it is irrational to presume

that one who states that he is a homosexual engages in or has a pro-

pensity or intent to engage in homosexual acts. Second, he maintains

that the presumption is rebuttable only in theory, and is irrebuttable

in practice. Finally, he alleges that his discharge was arbitrary and

capricious and unsupported by substantial evidence.

We have already rejected much of the substance of these allega-

tions in our discussion of Thomasson's equal protection and First

Amendment claims. The policy's rebuttable presumption is entirely

rational, as we have explained in ruling on Thomasson's equal protec-

tion challenge. The proceedings complied with any requirements

imposed by the Administrative Procedure Act- - Thomasson received

a full and adequate hearing in which substantial evidence established

that he stated that he was a homosexual and that he failed to rebut the

presumption triggered thereby. See Thomasson, 895 F. Supp. at 831.

In short, Thomasson's claims that his discharge violated due process

and the Administrative Procedure Act are without merit.

VII.

We have carefully reviewed Thomasson's various claims, but we

cannot accept them. To do so would not only overturn the efforts of

the elected branches of government to resolve a significant question

of national military policy. It would also violate much plain and set-

tled Supreme Court precedent. In the end, the best service courts can

render is to return this debate to where it all began- - to the halls of

democratic governance, where the many Americans affected by deci-

sions such as these can participate directly in their resolution.

The judgment of the district court is hereby affirmed.

AFFIRMED

Volume 2 of 2

PUBLISHED

No. 95-2185b

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PAUL G. THOMASSON, Lieutenant,

United States Navy,

Plaintiff- Appellant,

WILLIAM J. PERRY, Secretary of

Defense; JOHN H. DALTON, Secretary

of the Navy,

Defendants- Appellees,

UNION OF AMERICAN HEBREW

CONGREGATIONS; THE AMERICAN

JEWISH CONGRESS; NATIONAL

ORGANIZATION FOR WOMEN; NOW

LEGAL DEFENSE AND EDUCATION

FUND; CENTER FOR WOMEN POLICY

STUDIES; NATIONAL LESBIAN AND GAY

LAW ASSOCIATION; GAY AND LESBIAN

ADVOCATES AND DEFENDERS;

AMERICAN CIVIL LIBERTIES UNION;

LAMBDA LEGAL DEFENSE AND

EDUCATION FUND; SERVICEMEMBERS

LEGAL DEFENSE NETWORK; IAOMAI,

INCORPORATED; FAMILY RESEARCH

COUNCIL; IOTA LEGAL DEFENSE FUND,

Amici Curiae.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Claude M. Hilton, District Judge.

(CA- 95- 252- A)

Argued: December 5, 1995

Decided: April 5, 1996

Before WILKINSON, Chief Judge, and RUSSELL, WIDENER,

HALL, MURNAGHAN, ERVIN, WILKINS, NIEMEYER,

HAMILTON, LUTTIG, WILLIAMS, MICHAEL, and MOTZ,

Circuit Judges, sitting en banc.

_________________________________________________________________

MURNAGHAN, Circuit Judge, concurring:

I concur. Because an extended discussion of judicial deference to

the military is unnecessary, I would dispose of the matter much more

simply. The case concerns a rebuttable presumption which Thomas-

son did not rebut. Whether the employer was a military or non-

military body, it is enough that the presumption used is rational and

thus constitutional.

_________________________________________________________________

LUTTIG, Circuit Judge, concurring:

The statute governing homosexuals in the Armed Services that was

enacted by the Congress of the United States and signed by the Presi-

dent forbids known homosexuals from serving in the military. 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 homosexual-

ity, regardless of whether they have actually engaged in homosexual

conduct or are likely to engage in any such conduct.

The requirement that, in order to be discharged, one must at least

demonstrate a likelihood to engage in homosexual acts exists only in

a regulation promulgated by the Administration, ostensibly in imple-

mentation of the statute. That regulation redefines the statutory term

"propensity" so that only those homosexual service members who are

likely to engage in homosexual acts will be discharged. Through this

regulation the Administration has effectively secured the very policy

regarding military service by homosexuals that it was denied by the

Congress.

Rather than continue to indulge the politically expedient fiction

that the congressionally- mandated policy bars from service only those

known homosexuals who are likely to engage in homosexual acts - -

a fiction that both of these parties urge upon us because it serves their

mutual interest in creating a sanctuary for homosexuals within the

military - - I would simply invalidate the Administration's regulation

as in excess of its statutory authority. Then, having done so, I would

sustain the policy that was actually enacted into law as a permissible

exercise of Congress' constitutional authority "To make Rules for the

Government and Regulation" of the military. U.S. Const. Art. I, § 8,

cl. 14. As the Solicitor General maintained at argument, and as the

courts have uniformly held in analogous contexts, it is well within the

plenary authority of the Congress to exclude homosexuals from mili-

tary service because of the deleterious effects that knowledge of their

attraction for members of the same sex has on unit cohesion and mili-

tary effectiveness.

The Administration stridently argues that the question of the valid-

ity of the regulation is not before us. Thomasson, however, unequivo-

cally draws into question the validity of the regulation through his

argument that, despite the conduct- based regulation, the military's

policy is status- based:

The [Family Research] Council asserts that the Department

of Defense and Navy regulations at issue in this case con-

flict with the Congressional intent of the statute that is also

at issue. . . . In support of its motion, the Council asserts that

the parties have overlooked this point. In fact, however, this

point was raised in Lt. Thomasson's brief and was exten-

sively addressed by both parties at the prior argument in

this appeal. See, e.g., Brief for Appellant, at 45 n.47, 45- 49.

Appellant's Resp. to Mot. of Amicus Curiae Family Research Council

for Leave to Participate in Oral Argument at 2 & n.1 (emphasis

added). And the Administration defends its policy entirely on the

grounds that the regulation is the source of the conduct- based ratio-

nale for the policy. Thus, both parties clearly believe that the constitu-

tionality of the "Don't Ask; Don't Tell" policy turns upon the

regulatory redefinition of "propensity" to mean a likelihood of future

conduct.

For as long as it has had a military, the United States has excluded

homosexuals from military service. During the 1992 election cam-

paign, then- Governor Clinton said that, if elected, he would repeal

this long- standing ban on homosexuals, see S. Rep. No. 112, 103d

Cong., 1st Sess. 267 (1993), and, true to his promise, slightly more

than a week after assuming office President Clinton announced in his

first press conference that he was directing Secretary of Defense

Aspin to prepare an Executive Order "ending discrimination [in the

military] on the basis of sexual orientation." Memorandum on Ending

Discrimination in the Armed Forces, 1 Public Papers of the Presi-

dents, William J. Clinton, Jan. 29, 1993, at 23 ("Pub. Papers"); see

also J.A. at 335.1 During this press conference, see The President's

News Conference, 1 Pub. Papers 20, 21 (Jan. 29, 1993), President

Clinton embraced as consistent with his own views the distinction

between homosexual status and homosexual conduct drawn by the

federal District Court for the Central District of California in a deci-

sion that had been rendered only the previous day. See Meinhold v.

United States Department of Defense, 808 F. Supp. 1455, 1458 (C.D.

Cal. 1993), aff'd in part and vacated in part , 34 F.3d 1469 (9th Cir.

1994). In Meinhold, the district court had enjoined the Department of

Defense from discharging homosexuals based on sexual orientation,

absent any evidence of homosexual conduct.

_________________________________________________________________

1 President Clinton adopted an interim policy effective until July 15,

1993, that retained the prior ban on service by homosexuals, with two

modifications: 1) new recruits would not be questioned about their sexual

orientation; and 2) homosexuals who had not engaged in homosexual

acts would be processed through separation from active duty, but would

be placed in the Standby Reserve during the interim period. S. Rep. No.

112 at 268.

A political firestorm erupted over the President's announced plans

to lift the ban on homosexuals. Congress, for its part, convened hear-

ings to consider the effect that the President's proposed elimination

of the ban would have on military capability. It also created a Military

Working Group to consider the President's proposal, which, on July

1, 1993, released a report concluding that "the presence of open

homosexuals in a unit would, in general, polarize and fragment the

unit and destroy the bonding and singleness of purpose required for

effective military operations." Summary Report of the Military Work-

ing Group 5 (July 1, 1993) (emphasis added).

Despite the conclusion of the Military Working Group that the

mere presence of homosexuals would detrimentally affect unit cohe-

sion, the "Policy on Homosexual Conduct in the Armed Forces"

transmitted by Secretary Aspin to the Secretaries of the Army, Navy

and Air Force and to the Chairman of the Joint Chiefs of Staff on July

19, 1993, provided as follows:

[I]t is the policy of the Department of Defense to judge the

suitability of persons to serve in the armed forces on the

basis of their conduct. Homosexual conduct will be grounds

for separation from the military services. 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.

Memorandum from The Secretary of Defense, July 19, 1993, at 1

("July 19th Memorandum"), reprinted in Assessment of the Plan to

Lift the Ban on Homosexuals in the Military: Hearings Before the

Military Forces and Personnel Subcomm. of the House Comm. on

Armed Services, 103rd Cong., 1st Sess. 22 (1993) (H.A.S.C. No. 103-

19). At a press conference that same day, President Clinton himself

announced the new policy, explaining that "service men and women

[under the new policy] will be judged based on their conduct, not

their sexual orientation," and suggesting strongly that known homo-

sexuals could remain in military service provided they did not engage

in conduct violative of the Uniform Code of Military Justice.

Remarks Announcing the New Policy on Homosexuals in the Mili-

tary, 1 Pub. Papers 1109, 1111 (July 19, 1993); see id. at 1109 ("[The

new policy] provides greater protection to those who happen to be

homosexual and want to serve their country honorably in uniform,

obeying all the military's rules against sexual misconduct." (emphasis

added)).

Concerned that the new policy as described by the President would

allow open homosexuals to serve in the military, Congress questioned

Administration officials at length on the precise meaning of the new

policy, enacting the legislation that we now have before us only after

it was convinced that the new policy would retain the ban on service

by homosexuals. See, e.g., S. Rep. No. 112 at 289 ("Based upon the

testimony [by Secretary Aspin, the Joint Chiefs of Staff, the General

Counsel of the Department of Defense, and the Military Working

Group] received at the hearing, the committee finds that the Depart-

ment of Defense has retained the central features of its policy con-

cerning homosexuality in the armed forces," namely, "mandatory

discharge" for "homosexual acts, marriages, and statements that dem-

onstrate a propensity to engage in homosexual acts."). Congress thus

codified the long- standing ban against service by homosexuals, 10

U.S.C. § 654, adopting in an uncodified "sense of Congress" provi-

sion the President's interim policy ceasing the questioning of new

recruits about their sexual orientation. National Defense Authoriza-

tion Act for Fiscal Year 1994, Pub. L. No. 103- 160,§ 571 (d)(1), 107

Stat. 1547, 1673 (1993). Even so, Congress included a proviso that

the Secretary of Defense could reinstate the questioning of new

recruits if, in the Secretary's view, such ultimately proved necessary

to implement the statutory ban on service by known homosexuals. See

id.2

_________________________________________________________________

2 Section 571(d) provides, in relevant part:

SENSE OF CONGRESS.- - It is the sense of Congress that- -

(1) the suspension of questioning concerning homosexuality as

part of the processing of individuals for accession into the

Armed Forces under the interim policy of January 29, 1993,

should be continued, but the Secretary of Defense may reinstate

that questioning with such questions or such revised questions as

he considers appropriate if the Secretary determines that it is

necessary to do so in order to effectuate the policy set forth in

section 654 of title 10, United States Code.

It is this statutory policy enacted by Congress, not the policy advo-

cated by President Clinton in January 1993 or the policy implemented

by the Secretary through regulation, that was signed into law on

November 30, 1993.

II.

Section 571(a) of the National Defense Authorization Act for Fis-

cal Year 1994, 10 U.S.C. § 654, like the pre- 1993 Department of

Defense Directives it codifies, unambiguously prohibits all known

homosexuals from serving in the military, regardless of the likelihood

that they will violate the Uniform Code of Military Justice prohibition

against sodomy, see Article 125, U.C.M.J., 10 U.S.C. § 925, or

engage in other homosexual acts as defined by the statute, see 10

U.S.C. § 654(f)(3).3 The statute defines "homosexual" as "a person,

regardless of sex, who engages in, attempts to engage in, has a pro-

pensity to engage in, or intends to engage in homosexual acts." Id. at

§ 654(f)(1). It then provides that a service member who states that he

is homosexual (or otherwise evidences his homosexuality)4 shall be

separated from service unless he demonstrates that he is not, as statu-

torily defined, a "homosexual":

_________________________________________________________________

3 "Homosexual act" is defined by the statute as:

(A) any bodily contact, actively undertaken or passively per-

mitted, between members of the same sex for the purpose of sat-

isfying sexual desires; and

(B) any bodily contact which a reasonable person would under-

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

described in subparagraph (A).

10 U.S.C. § 654(f)(3). The relevant portion of the U.C.M.J. prohibits

only "sodomy," defined as "unnatural carnal copulation with another per-

son of the same or opposite sex or with an animal." Id. at § 925.

4 See DoD Directive 1332.30, Encl. 1, ¶ 18 (March 4, 1994)

("Statement that a Member Is a Homosexual or Bisexual or Words to

That Effect" defined as "Language or behavior that a reasonable person

would believe was intended to convey the statement that a person

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

in homosexual acts.").

A member of the armed forces shall be separated . . . if

[inter alia] . . . the member has stated that he or she is a

homosexual or bisexual, or words to that affect, 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. at § 654(b)(2) (the "statements" provision). The presumption that

one is homosexual which arises from one's statement of homosexual-

ity, in other words, can be rebutted only by proving that one does not

even have a propensity to engage in homosexual acts. See S. Rep. No.

112 at 294 ("[O]nce the government introduces evidence that the

member has stated that he or she is a homosexual, the burden shifts

to the member . . . to demonstrate that he or she is not a homosexual

as defined in the statute."); id. ("[T]he member bears the burden of

persuading the fact- finder by a preponderance of the evidence that the

rebuttal is more credible than the original statement (e.g., by proving

that the original statement was made in jest)."). 5 The statute in this

manner bars service not just of those individuals likely to engage in

homosexual acts, but rather, of all acknowledged (or otherwise

known) homosexuals. That the statute is aimed at known homosexu-

als, rather than homosexual acts, is further confirmed by the fact that,

pursuant to section 654(b)(1), a heterosexual who actually engages in

homosexual acts is not barred from service if he demonstrates inter

alia that he is not a homosexual.6

_________________________________________________________________

5 See also Policy Concerning Homosexuality in the Armed Forces:

Hearings Before the Senate Comm. on Armed Services, 103rd Cong., 1st

Sess. 753 (1993) (S. Hrg. 103- 845) (testimony of Secretary Aspin) ("The

point of rebuttable presumption is that if the issue comes to the attention

of the authorities and the authorities say you have just said you are gay,

you have the opportunity to present some evidence to the contrary."); id.

at 746 (Secretary Aspin answering "Correct" to Senator Bryan's query:

"So, the rebuttable presumption is a rebuttable presumption that the indi-

vidual then, in effect, would carry the burden of establishing that he or

she was not homosexual?").

6 Of course, a heterosexual would be subject to discharge under Article

125 of the U.C.M.J., 10 U.S.C. § 925, if the homosexual act he commits

is sodomy.

In barring all known homosexuals from military service, the statute

is identical to the pre- 1993 DoD policy:

Homosexuality is incompatible with military service.. . . A

member shall be separated . . . if . . . [t]he member has stated

that he or she is a homosexual or bisexual unless . . . the

member is not a homosexual or bisexual.

DoD Directive 1332.14 (March 9, 1982), reprinted in 32 C.F.R. Ch.

1, Pt. 41, App. A, ¶¶ H.1.a. and H.1.c.(2) (1994). Indeed, in the fol-

lowing colloquy with Senator Nunn during the Senate hearings on the

"Don't Ask; Don't Tell" policy, the General Counsel for the Depart-

ment of Defense, Jamie Gorelick, confirmed that the current policy is

the same as the prior policy in this critical respect:

CHAIRMAN NUNN. Under [the pre- 1993] DoD policy,

if there is a finding that an individual has stated that he or

she is homosexual, that person is discharged unless there is

further finding that the individual is not, in fact,

homosexual, that is, the person does not engage in homosex-

ual acts or have an intent or desire to do so. Is that correct?

MS. GORELICK. That is correct.

. . .

CHAIRMAN NUNN. In other words, the [pre- 1993] pol-

icy establishes a rebuttable presumption that a person who

says he or she is homosexual is, in fact, homosexual. Is that

correct?

MS. GORELICK. That is what the current policy does.

And, as the Secretary says, that is carried forward into the

new policy.

S. Hrg. 103- 845 at 771 (emphasis added). Secretary Aspin also

affirmed that the policy disqualifies from service all known homosex-

uals, agreeing in response to questions from Senator Gramm that,

under the policy, military personnel "would at least be assured that no

one would be a self- professed homosexual and be allowed to continue

to serve." Id. at 727; see also id . at 746- 47 (Secretary Aspin confirm-

ing that the rebuttable presumption in the current policy is the same

as that in the prior policy).

The fact that the statute excludes known homosexuals from service

because they are homosexual and not only because they engage in

homosexual acts is reinforced in the statutory findings made by Con-

gress:

The presence in the armed forces of persons who demon-

strate a propensity or intent to engage in homosexual acts

[ - - that is, of "homosexuals," as statutorily defined - - ]

would create an unacceptable risk to the high standards of

morale, good order and discipline, and unit cohesion that are

the essence of military capability.

10 U.S.C. § 654(a)(15) (emphasis added); see also S. Rep. No. 112

at 293 ("The [legislative] findings reflect long standing Department

of Defense policy, as set forth in [the pre- 1993] DoD Directive[s],

that `[h]omosexuality is incompatible with military service . . .

[because the] presence in the military environment of persons who

engage in homosexual conduct or who, by their statements, demon-

strate a propensity to engage in homosexual conduct, seriously

impairs the accomplishment of the military mission.'"); H.R. Rep.

No. 200, 103d Cong., 1st Sess. 287 (1993), reprinted in 1993 U.S.

Code Cong. & Admin. News 2013, 2074 ("[T]he committee con-

cludes that homosexuality is incompatible with military service.").7

_________________________________________________________________

7 See also Memorandum for the President from Attorney General Janet

Reno, Defensibility of the New Policy on Homosexual Conduct in the

Armed Forces 1 (July 19, 1993), reprinted in S. Hrg. 103- 845 at 706

("The policy reiterates the prior Defense Department view that `homo-

sexuality is incompatible with military service because it interferes with

the factors critical to combat effectiveness.'"); Appellant's Br. at 26

("[T]he long history of the policy - - including even the recent legislative

history surrounding the [1993] Act - - establishes beyond any doubt that

the chief concern among policymakers has always been to combat the

mere presence of homosexuals in the ranks." (citing, inter alia, Able v.

United States, 880 F. Supp. 968, 976- 80 (E.D.N.Y. 1995))).

And there is abundant support for this statutory finding in the legis-

lative record. See, e.g., S. Rep. No. 112 at 278 (testimony of General

Colin Powell); id. at 280 (testimony of General H. Norman Schwarz-

kopf); S. Hrg. 103- 845 at 780 (testimony of General John Otjen);

MWG Summary Report at 5; see generally Able, 880 F. Supp. at 977

(describing the disruptive effect to unit cohesiveness caused by the

mere presence of homosexuals in the military as"a theme repeatedly

stated by high- ranking officers").

Thus, the "Don't Ask; Don't Tell" policy enacted into law, as

opposed to the policy that has been put in place by the Administra-

tion, is not conduct- based in the constitutionally significant sense that

homosexuals may only be discharged based upon their commission of

homosexual acts or their likelihood to commit such acts, or even in

the sense that its purpose is to prevent homosexual conduct before it

occurs. As Lt. Thomasson correctly observes, this"focus on conduct

[is but] a lawyer- driven, pretextual afterthought" by the Administra-

tion. Appellant's Br. at 26; see also Able, 880 F. Supp. at 977 ("[T]he

lawyers evolved the Byzantine and complex [regulatory] provisions"

in order "to pretend that the concern was [not over] the mere presence

of homosexuals in the Services, but [over] their potential acts.").

Compare Gov't Br. at 23 ("Thomasson's repeated assertion that the

policy classifies on the basis of homosexual orientation cannot be rec-

onciled with the plain regulatory language that equates `propensity'

with `likelihood.'" (citations omitted) (emphasis added)).

The statutory policy is "conduct- based" (if it can be so character-

ized at all) only in the sense that the service member must evidence

his homosexual propensity in some manner, if only by a statement,

before he will be discharged. See DoD Directive 1332.30, Encl. 1,

¶ 9, Encl. 2, ¶ C, and Encl. 6, ¶ B.4 (March 4, 1994) (defining "homo-

sexual conduct" so as to include "statements"); MWG Summary

Report at 4 (same); S. Rep. No. 112 at 289 (same); see also S. Hrg.

103- 845 at 817 (testimony of Jamie Gorelick) ("[W]hen we talk about

separating status from conduct, we are talking about separating orien-

tation from homosexual acts, statements, and marriages." (emphasis

added)); id. at 807 (testimony of Jamie Gorelick) ("[T]he policy has

always been defended on the basis that it is homosexual conduct - -

acts, statements, and marriages - - that is the basis of discharge under

the current policy." (emphasis added)). Such a policy is, as between

pure status and pure conduct, a status- based policy, because it merely

recognizes certain conduct as evidence of homosexuality; it does not

exclude on the basis of that conduct itself. To say that the policy is

status- based in this sense, as opposed to conduct- based in the sense

argued by the Administration, of course, is not to say that the policy

is status- based in the same way that an exclusion on the basis of an

immutable characteristic would be. Rather, it is to say that the policy

is based upon what is in fact a hybrid of status and conduct, namely,

"propensity." "Propensity" is different from a predetermined and

immutable characteristic like race or sex, in that it is a disposition

toward certain conduct; but it is also different from conduct itself, or

its likelihood, because it is neither itself action nor necessarily indica-

tive of likely future action. It is, as commonly understood, merely an

inclination, see infra, and it is that inclination, that propensity, not any

likelihood of conduct, at which this particular policy is directed.

That the enacted policy is conduct- based only in the sense that

there must be some manifestation of one's homosexuality should not

be surprising. The whole of the compromise between the Congress

and the President was that the military would no longer question a

new recruit or service member about his sexual orientation absent

some manifestation by him of homosexuality, but that discharge

would be mandated if a service member evidenced his homosexuality

in any way at all - - through even as little as a statement - - unless

he could prove that he was not homosexual. Thus, the policy: "Don't

Ask, Don't Tell."

The Administration fully understands that the policy enacted by

Congress is not conduct- based in the sense that it is targeted at homo-

sexual acts and the likelihood that one will commit such acts, as evi-

denced by its repeated mischaracterization of the statute itself and its

effective misquotation of the testimony of the various witnesses and

legislators on this important if not dispositive issue. On virtually

every occasion when the Administration references either a statutory

provision or a passage from testimony wherein Congress or a witness

observed that the presence of open homosexuals would be detrimental

to combat capability or unit cohesion, it substitutes its regulatory defi-

nition of "propensity" (i.e., a likelihood that one will engage in homo-

sexual acts) for the words actually enacted or spoken.

The Administration states, for example, that,

[t]he classification here is directed at homosexual "acts and

the likelihood of acts" and is grounded in the congressional

finding that the presence in the military of persons who

engage in, or are likely to engage in, such acts"would

create an unacceptable risk to the high standards of morale,

good order and discipline, and unit cohesion that are the

essence of military capability." 10 U.S.C. 654(a)(15).

Gov't Br. at 16- 17 (emphasis added). In fact, the statutory finding ref-

erenced by the Administration in this passage is not that an unaccept-

able risk would be created by the presence of persons likely to engage

in homosexual acts; rather, the finding is that the risk would be cre-

ated by "[t]he presence in the armed forces of persons who demon-

strate a propensity or intent to engage in homosexual acts." 10 U.S.C.

§ 654(a)(15).

Similarly, the Administration describes General Powell's Senate

testimony in this way:

In General Powell's experience, service by persons who

engage in, or are likely to engage in, homosexual acts,

"would have an unacceptable detrimental and disruptive

impact on the cohesion, morale, and esprit of the armed

forces." S. Rep. 112 at 278. See also id. at 281.

Gov't Br. at 37 (emphasis added); see also id . at 3 (same). General

Powell actually stated not that the service of persons likely to engage

in homosexual acts would be detrimental to unit cohesion, but rather

that,

the presence of open homosexuality would have an unac-

ceptable detrimental and disruptive impact on the cohesion,

morale, and esprit of the armed forces.

S. Rep. No. 112 at 278 (emphasis added).

Repeating the mischaracterization, the Administration recites

again, later, that "General Powell stated that`it would be prejudicial

to good order and discipline' if the military required heterosexuals

and persons who do, or are likely to, engage in homosexual acts `to

share the most private facilities together, the bedroom, the barracks,

latrines, and showers.'" Gov't Br. at 38 (quoting from S. Rep. No.

112 at 283) (emphasis added). General Powell actually stated:

[I]t is very difficult in a military setting, where you don't

get a choice of association, where you don't get a choice of

where you live, to introduce a group of individuals who are

proud, brave, loyal, good Americans, but who favor a homo-

sexual life style, and put them in with heterosexuals who

would prefer not to have somebody of the same sex find

them sexually attractive, put them in close proximity, [and]

ask them to share the most private facilities together, the

bedroom, the barracks, latrines, and showers.

I think that it is a very difficult problem to give the mili-

tary. I think it would be prejudicial to good order and disci-

pline to try to integrate that in the current military structure.

S. Rep. No. 112 at 283 (emphasis added); see also Appellant's Reply

Br. at 13 ("[The government has] simply and repeatedly misrepre-

sented General Powell's testimony in an effort to suggest [that the

policy is targeted at conduct, not on mere acknowledgements of sex-

ual orientation, irrespective of conduct].").

The Administration misrepresents General Schwarzkopf's testi-

mony in the same manner. It apprises the court that,

General Schwarzkopf similarly testified, based on his con-

sistent experience over years of military service, that the

presence of such homosexuals [viz., "persons who engage

in, or are likely to engage in, homosexual acts"] in a military

unit "polarizes that unit and destroys the very bonding that

is so important for the unit's survival in time of war." [S.

Rep. 112] at 280.

Gov't Br. at 37 (emphasis added). General Schwarzkopf actually

stated:

[I]n my years of military service, I have experienced the fact

that the introduction of an open homosexual into a small unit

immediately polarizes that unit and destroys the very bond-

ing that is so important for the unit's survival in time of war.

S. Rep. No. 112 at 280 (emphasis added).

Likewise, the Solicitor General says that General Schwarzkopf tes-

tified that, "where such homosexuals[again, those who either engage

in or are likely to engage in homosexual acts] served in military units,

`morale broke down, and unit effectiveness suffered,'" Gov't Br. at

37 (emphasis added), when in fact General Schwarzkopf testified that,

"in every case [he was] familiar with, . . . whenever it became known

in a unit that someone was openly homosexual, polarization occurred,

violence sometimes followed, morale broke down, and unit effective-

ness suffered." S. Rep. No. 112 at 280 (emphasis added).

Such mischaracterization appears repeatedly throughout the gov-

ernment's submissions.

It is self- evident that this mischaracterization is purposeful. The

deliberateness of the mischaracterization is also borne out, however,

by the fact that when the Administration responded to congressional

leaders whom it knew to be opposed to its position on military service

by homosexuals, it substituted the statutory language for the regula-

tory language, rather than the regulatory language for the statutory

language as it does before this court. Senators Thurmond, Nunn and

Coats, on behalf of the Senate's Committee on Armed Services, asked

the Department's General Counsel "[h]ow . . . the implementing

directives and related guidance address . . . [t]he circumstances in

which a person who states that he or she is a homosexual claims that

the rules preclude separation of anyone based on their `sexual orienta-

tion.'" Letter from DoD General Counsel Judith A. Miller to Senators

Thurmond, Nunn and Coats 1, 2 (July 27, 1995) (reciting questions

from Thurmond, Nunn and Coats letter of July 13, 1995). When DoD

answered this question, it did so with what is almost a verbatim quo-

tation from its regulation, altered only so as to substitute the statutory

language for the final clause of the regulation, which refers to the pos-

sibility of rebuttal through proof that one is not likely to engage in

homosexual acts. The regulation provides, of course, that,

[i]n determining whether a member has successfully rebut-

ted the presumption that he or she engages in, attempts to

engage in, or has a propensity or intent to engage in homo-

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

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

(b) The member's credibility; (c) Testimony from others

about the member's past conduct, character and credibility;

(d) The nature and circumstances of the member's state-

ment; [and] (e) Any other evidence relevant to whether the

member is likely to engage in homosexual acts.

DoD Directive 1332.14, Enc. 3, Att. 1, ¶ H.1.b.(2) (March 4, 1994)

(emphasis added). The Deputy Attorney General, however, replied to

the Senators as follows:

In determining whether a Service member has successfully

rebutted the presumption, a Board may consider, among

other evidence: whether the member has engaged in homo-

sexual acts; the member's credibility; testimony from others

about the member's past conduct, character and credibility;

the nature and circumstances of the statement; and any other

evidence relevant to whether the member engages in,

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

intends to engage in homosexual acts.

Letter from DoD General Counsel Judith A. Miller to Senators Thur-

mond, Nunn and Coats 3 (July 27, 1995) (emphasis added).

III.

Despite Congress' clear mandate requiring the discharge of all

known homosexuals, the Department of Defense has, by its regulatory

redefinition of the statutory term "propensity," created what is in

effect a sanctuary for known homosexuals whom the military deter-

mines are not likely to engage in homosexual acts. See Gov't Br. at

27 ("Both on the face of the policy and in actual practice, the rebutta-

ble presumption allows a service member who has stated that he is

homosexual an opportunity to be retained in the service by showing

that he does not engage in, and is not likely to engage in, homosexual

acts.").8 Because it is unmistakable that, under the statute enacted by

Congress, such homosexuals may not remain in service of the mili-

tary, I would invalidate this regulation as an impermissible exercise

of the regulatory authority conferred upon the Secretary.

The regulation promulgated by the Secretary defines the statutory

phrase "propensity to engage in homosexual acts" to mean "a likeli-

hood" that one will engage in homosexual acts:

_________________________________________________________________

8 The Solicitor General contends that there is a difference between a

homosexual "orientation" and a homosexual "propensity" insofar as the

likelihood that one will engage in homosexual acts is concerned, a differ-

ence the Administration has incorporated into its regulatory definition of

"orientation." See DoD Directive No. 1332.30, Encl. 1, ¶ 16 (March 4,

1994) (defining "sexual orientation" as "[a]n abstract sexual preference

for persons of a particular sex, as distinct from a propensity or intent to

engage in sexual acts"). I do not know what homosexual orientation is,

if it is not the propensity to commit homosexual acts; indeed, I do not

understand how one even knows that he has a homosexual orientation

except by realizing that he has a propensity toward the commission of

homosexual acts. See Able, 880 F. Supp. at 975 (characterizing the dis-

tinction between "orientation" and "propensity" as "Orwellian"). But if

there are indeed persons who are homosexually oriented but do not have

a homosexual propensity, I would agree that the statute does not require

their discharge, at least under the statements provision. I would also

agree that if, as Deputy Attorney General Gorelick testified, a

homosexually- oriented person is merely an undetected homosexual, the

statute accepts the continued service of such persons as a consequence

of the compromise that service members would not be asked about their

sexual orientation. See S. Hrg. 103- 845 at 808 (Gorelick testimony); see

also Memorandum for the President from Attorney General Janet Reno,

Defensibility of the New Policy on Homosexual Conduct in the Armed

Forces 1 (July 19, 1993), reprinted in S. Hrg. 103- 845 at 706

("[H]omosexual conduct (but not an unmanifested orientation) would be

grounds for separation from service.").

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 Directives 1332.30, Enc. 1, ¶ 13 (March 4, 1994) (emphasis

added).9 By so defining "propensity," the Secretary has, contrary to

the clear intent of the Congress, effectively transformed a provision

that permits rebuttal of the presumption of homosexuality only by

proof that one is not a member of the class (i.e., not a homosexual),

into a provision that permits individualized rebuttal of the presump-

tion merely by proof that one is not likely to engage in homosexual

acts.

Quite obviously, "propensity" does not mean "a likelihood," and it

certainly does not mean, as the Administration maintains, "likely";

nor can the term reasonably be defined in either of these ways. As

common sense suggests, "propensity" is merely "a natural inclination"

or an "innate or inherent tendency." Webster's Third New Int'l Dictio-

nary, Unabridged 1817 (1986); see also The Oxford English

Dictionary 637 (2d ed. 1989) (defining "propensity" as "disposition

or inclination to some action, course of action, [or] habit"); The Amer-

ican Heritage Dictionary 1452 (3d ed. 1992) (defining "propensity"

as "an innate inclination; a tendency"); Able, 880 F. Supp. at 975

("`[P]ropensity' is generally understood and defined to mean a `natu-

ral inclination' or an `innate or inherent tendency.'"). Compare

Oxford English Dictionary at 345 (defining "homosexual" as a "[a]

person who has a sexual propensity for his or her own sex" (emphasis

added)); Webster's Dictionary at 1085 (defining "homosexual" as

"one who is inclined toward or practices homosexuality" (emphasis

added)). The Department of Justice itself argued for a definition of

"propensity" as "inclination" before the Ninth Circuit, in the case that

apparently serves as the Administration's model for its policy. See

_________________________________________________________________

9 See also DoD Directive 1332.30, Enc. 2, ¶ C (March 4, 1994) ("A

statement by a member that demonstrates a propensity or intent to

engage in homosexual acts is grounds for separation not because it

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

cates a likelihood that the member engages in or will engage in homosex-

ual acts.").

Gov't Br. at 23 n.8, Meinhold v. United States Department of

Defense, 34 F.3d 1469 (9th Cir. 1994) (No. 93- 55242) ("[P]ropensity"

is "an `often intense natural inclination.'" (citing Webster's New Col-

legiate Dictionary 943 (9th ed. 1990))).

The Solicitor General's twin responses to this common understand-

ing of the term "propensity" are themselves testament to the indefen-

sibility of the position he defends. First, he notes that the dictionary

includes the word "propensity" in the synonymy for the word "lean-

ing," and, therein, in distinguishing "propensity" from "leaning," sug-

gests that the word "propensity" "may apply to an innate or deeply

engrained longing or attraction making a certain course of action

highly probable." See Gov't Supp. Br. at 4 (quoting Webster's

Dictionary at 1286 (definition of "leaning")). This entry does not in

any way suggest, contrary to the Solicitor General's belief, that "pro-

pensity" is synonymous with "likely"; it suggests only that "propen-

sity" may refer to an innate longing or attraction, which in turn may

render certain action more likely - - and, at that, the entry only indi-

cates that "propensity" may refer to such an innate longing or attrac-

tion, not that it need so refer or even that it ordinarily does in common

usage. If anything, the significance of this entry is not that it suggests

a possible distinction between "propensity" and "leaning," but that it

includes "propensity" as a synonym of"leaning," which it defines, as

it does "propensity," as an "inclination." The interchangeability of

"propensity," "inclination," and "leaning" all but confirms that "pro-

pensity" cannot be defined as "a likelihood," as the regulation pur-

ports to do.

Second, the Solicitor General combs from the United States

Reports two examples of use of the word "propensity," which he

claims supports his equation of that term with "likely." See Gov't

Supp. Br. at 4. Apart from the general irrelevancy of this enterprise,

neither of the examples supports the regulatory definition he seeks to

justify. The Court in Michelson v. United States, 335 U.S. 469, 475

(1948), clearly used the word "propensity" to mean "inclination" or

"predisposition," not, as the Solicitor General seems to believe,

"likely." Justice Blackmun (joined by Justice Stevens), in Ballew v.

Georgia, 435 U.S. 223, 235 (1978), did use the words "propensity"

and "likelihood" interchangeably in discussing the conviction rates for

juries comprised of different numbers of jurors, he did not use either

word to mean "likely," as the Department of Defense regulation and

implementing interpretations use the phrase "a likelihood."

If resort to caselaw is to be had, even a cursory review reveals that

the weight of even arguably relevant authority is that the word "pro-

pensity" means merely an "inclination," precisely the definition the

dictionaries ascribe to the term. See, e.g., Robinson v. California, 370

U.S. 660, 678- 79 (1962) (Harlan, J., concurring) ("Since addiction

alone cannot reasonably be thought to amount to more than a compel-

ling propensity to use narcotics, the effect of this instruction was to

authorize criminal punishment for a bare desire to commit a criminal

act." (emphasis added)); Powell v. Texas, 392 U.S. 514, 543 (1968)

(Black, J., concurring) ("Punishment for a status is particularly

obnoxious, and in many instances can reasonably be called cruel and

unusual, because it involves punishment for a mere propensity, a

desire to commit an offense . . . ." (emphasis added)).

There is simply no credible argument that in common usage "pro-

pensity" means "likely"; any argument that it does is sophism. There

certainly is no argument that the very Congress that refused to lift the

long- time ban on homosexuals in the military and insisted that service

members be discharged even for statements that they were homosex-

ual would have regarded these terms as equivalent. For to define the

term "propensity" as "likely" is "to create . . . a sanctuary in the mili-

tary where homosexuals could serve discreetly and still be subject to

separation for proscribed conduct," the very circumstance the Con-

gress concluded would be "inimical to unit cohesion, morale, welfare

and discipline, unenforceable in the field, and open to legal chal-

lenge." H.R. Rep. No. 200, 103d Cong., 1st Sess. 289 (1993),

reprinted in 1993 U.S. Code Cong. & Admin. News 2013, 2076.

When the regulation was announced, the Secretary attempted to

justify it on the ground that the substitution of the statutory term "pro-

pensity" for the term "desire," which appeared in the pre- 1993 DoD

Directive,10 fundamentally changed the policy from one requiring the

_________________________________________________________________

10 The statute now defines "homosexual" as "a person, regardless of

sex, who engages in, attempts to engage in, has a propensity to engage

discharge of all homosexuals to one requiring the discharge only of

those homosexuals likely to engage in homosexual acts. See J.A. at

338- 39 (Secretary Aspin news conference) ("[W]e've eliminated the

word `desire' to emphasize that the statement must be one that shows

a likelihood to engage in acts."). The change of the word "desire" in

the pre- 1993 Directive to the statutory term "propensity" was

regarded by Congress, however, as only a "minor drafting clarifica-

tion" never intended to "affect the practical effect of the policy," S.

Rep. No. 112 at 289- 90, as the Deputy Attorney General herself

observed at the time, see id. at 290.

Although noting that the change was not intended to have any

"practical effect," the committee did, as well, refer to the drafting

change as a "useful clarification." Id. Seizing upon this observation,

the Solicitor General argues that the usefulness of the change was in

its clarification that the focus of the new policy, like the prior policy,

is on the likelihood of future homosexual acts, not merely on homo-

sexuality. This argument is plausible, however, only if one accepts the

Solicitor's mistaken premise that the prior policy was itself concerned

only with homosexual acts; but if one appreciates that the prior policy

was clearly status- based, as I believe the Solicitor must, see Gov't

Supp. Br. at 6 (noting that committee viewed change as "useful," but

omitting any reference to committee statements that change was not

to have any practical effect), then it can hardly be maintained that a

change which fundamentally altered the policy to one that was

entirely conduct- based was merely a "minor drafting clarification"

never intended to "affect the practical effect of the policy."

Considering that the prior policy was unmistakably addressed to

homosexuality per se, rather than the likelihood of conduct, and con-

sidering that the Administration had nonetheless argued, by equating

"desire" with "a likelihood of future conduct,"11 that the prior policy

_________________________________________________________________

in, or intends to engage in homosexual acts, and includes the terms `gay'

and `lesbian.'" 10 U.S.C. § 654(f)(1) (emphasis added). The pre- 1993

Directive defined "homosexual" as "a person, regardless of sex, who

engages in, desires to engage in, or intends to engage in homosexual

acts." DoD Directive 1332.14 (March 9, 1982), reprinted in 32 C.F.R.

Ch. 1, Pt. 41, App. A, ¶ H.1.b.(1) (1994) (emphasis added).

11 See, e.g., Gov't Br. at 10 (July 30, 1993), Meinhold v. United States

Department of Defense, 34 F.3d 1469 (9th Cir. 1994) (No. 93- 55242)

was addressed to conduct, it is, if anything, more believable that Con-

gress thought the clarification "useful" as a reiteration that the policy

required exclusion of all homosexuals, not only those who are likely

to engage in homosexual conduct. That is, it may well be that Con-

gress concluded that, because propensity connotes neither volition nor

longing, this term would not be as susceptible to the Administration's

transmogrifications as "desire" had proven to be.12

The Solicitor General attempts to defend the regulation on the

grounds both that it is a reasonable interpretation of an ambiguous

statute and that it was necessary to remedy the constitutional infirmity

of the statute. Neither of these asserted justifications is sufficient to

uphold the regulation.

The Solicitor General first asserts that even if"propensity" does not

mean "a likelihood" of future conduct, the agency's definition is

nonetheless entitled to deference as a reasonable interpretation by the

agency charged with the statute's administration. This is not, how-

ever, an instance where deference to an agency's regulatory interpre-

tation of a statute is appropriate: Because the statute unambiguously

_________________________________________________________________

("The regulatory language, DoD's reasonable interpretation, and judicial

precedent make plain that the [pre- 1993] policy targets members who

have engaged or . . . will likely engage in homosexual conduct. The pol-

icy targets homosexual `conduct - - past, present, and future, but conduct

nonetheless.'" (citing Watkins v. United States Army, 847 F.2d 1329,

1362 (9th Cir. 1988) (Reinhardt, J., dissenting))); cf. Steffan v. Perry, 41

F.3d 677, 687 n.7 (D.C. Cir. 1994) (en banc) ("The Ninth Circuit [in

Meinhold] construed the `desires' language to mean something akin to

intent.").

12 Compare Webster's Dictionary at 612 (defining "desire" as "1 : con-

scious impulse toward an object or experience that promises enjoyment

or satisfaction in its attainment . . . 2 a : an enduring and passionate long-

ing or intense yearning : an urgently impelling motive toward attain-

ment : CRAVING, APPETENCY . . . b(1) : a strong physical inclination

(2) : erotic urge : sexual attraction or appetite . . . c : a striving after in

intent : a deliberate choice or preference") with id. at 1817 (defining

"propensity" as "a natural inclination : innate or inherent tendency").

requires the discharge of all known homosexuals, a regulation that

limits discharge to only those known homosexuals who are likely to

engage in homosexual acts is per se unreasonable. Nor, given that the

President does not attempt to defend the regulatory modification on

the ground it is needed in the interest of national security, is this a

case where the Executive must be afforded deference, despite con-

trary congressional action, because of the President's preeminent role

in matters of national security, see U.S. Const. Art. II, § 2; cf. United

States v. Curtiss- Wright Export Corp., 299 U.S. 304, 319- 20 (1936).

This is, rather, the archetype of the case described by Justice Jackson,

where "the President takes measures incompatible with the expressed

or implied will of Congress, [and] his power is [therefore] at its low-

est ebb, for . . . he can rely only upon his own constitutional powers

minus any constitutional powers of Congress over the matter."

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952)

(Jackson, J., concurring); see also Chappell v. Wallace, 462 U.S. 296,

301 (1983) ("The Framers of the Constitution . . . explicit[ly] grant-

[ed] plenary authority to Congress `To raise and support Armies'; `To

provide and maintain a Navy'; and `To make Rules for the Govern-

ment and Regulation of the land and naval Forces.'" (quoting U.S.

Const. Art. I, § 8, cls. 12- 14)); Weiss v. United States, 114 S. Ct. 752,

760- 61 (1994) ("Judicial deference . . . is at its apogee when review-

ing congressional decisionmaking in [the military context]. . . . Con-

gress has primary responsibility for the delicate task of balancing the

[constitutional] rights of servicemen against the needs of the mili-

tary." (internal quotations omitted)).

The Solicitor General also attempts to defend the regulation on the

grounds that it was necessary to avoid a question of the statute's

constitutionality,13 and is, for that reason, permissible. However, an

agency of unelected officials has no authority to alter the plain com-

_________________________________________________________________

13 See Gov't Br. at 23- 24 ("[T]o the extent that the military's reasonable

construction of the term `propensity' avoided a serious question regard-

ing the constitutionality of this statutory provision, the district court was

all the more required to defer to that construction." (citing Concrete Pipe

& Prods. v. Construction Laborers Pension Trust, 113 S. Ct. 2264,

2282- 83 (1993))); see also id. at 16 (arguing against strict scrutiny

because "[t]he classification here is directed at homosexual `acts and the

likelihood of acts'").

mands of the Congress simply because, in its view, questions exist as

to the constitutional validity of a such a statute. Cf. Concrete Pipe &

Prods. v. Construction Laborers Pension Trust, 113 S. Ct. 2264,

2282- 83 (1993) ("[I]n a case of statutory ambiguity, `where an other-

wise acceptable construction of a statute would raise serious constitu-

tional problems, the Court will construe the statute to avoid such

problems unless such construction is plainly contrary to the intent of

Congress.'" (quoting Edward J. DeBartolo Corp. v. Florida Gulf

Coast Bldg. & Const. Trades Council, 485 U.S. 568, 575 (1988))).

This is especially true where, as here, Congress explicitly considered,

at length, the constitutional validity of its action, and concluded that

it was well within its constitutional authority. See Gov't Br. at 20

("Congress specifically concluded that the new policy does `not vio-

late the constitutional rights of [homosexuals].'" (quoting S. Rep. No.

112 at 284)).

The Administration vehemently argues, and Lt. Thomasson on

occasion agrees, that the validity of the regulation is not before the

court and should under no circumstance be addressed by the court.

See, e.g., Gov't Supp. Br. at 3.14 These protestations are to be

expected, but they are unavailing. Lt. Thomasson makes two separate

_________________________________________________________________

14 Lt. Thomasson does, at times, purport not to challenge the regulation.

See, e.g., Appellant's Rule 28(f) Supp. Mem. at 12 (merely noting that

an argument raised by amicus curiae is not necessarily before the court);

id. at 2, 5. But see Appellant's Resp. to Mot. of Amicus Curiae Family

Research Council for Leave to Participate in Oral Argument at 2 & n.1

(expressly representing that he challenges validity of regulation). He

does so, however, for what I regard as the same transparent reasons that

underlie the Solicitor General's entreaties that the regulation is not before

us. Although Lt. Thomasson recognizes that he must challenge the regu-

lation in order to challenge the statute's exclusion of homosexuals on

grounds of status, he nevertheless prefers, should the statute be upheld,

that the regulation remain intact because of the sanctuary it creates.

Under these circumstances, to acquiesce in the collaborative argument by

the parties that we should not address the validity of the regulation

would, in my judgment, be to allow ourselves, as judges, to be used as

pawns in a political game between players with only putatively different

interests.

arguments in challenging the military's policy, not one. The first,

which the majority ably addresses, is that the policy, defined collec-

tively by the statute and the regulation, is unconstitutional because it

irrationally presumes prohibited conduct from a mere statement of

status. The second, which the majority does not address, is that the

military's policy is wholly status- based because the conduct- based

regulation is invalid under the statute, and, without the regulation, the

statute unconstitutionally authorizes the discharge of homosexuals

solely on the basis of their status as homosexuals.

The Administration defends against Thomasson's argument that

the policy is status- based entirely on the ground that the policy is

conduct- based by virtue of the regulatory definition of the statutory

term "propensity."15 Lt. Thomasson responds that, to the extent this

is so, the regulation is but "lawyerly afterthought" and "definitional

_________________________________________________________________

15 See, e.g., Gov't Br. at 11 ("The legislative classification in 10 U.S.C.

654(b)(2) - - barring service by members who state that they are homo-

sexuals and who fail to demonstrate that they do not and are not likely

to engage in homosexual acts - - does not violate equal protection."); id.

("[T]he Government has a legitimate interest in prohibiting homosexual

acts in the military. To avoid the risk to military effectiveness posed by

such acts, Congress enacted a classification that reasonably presumes - -

subject to rebuttal by the service member - - that a member who states

that he is a homosexual is likely to act consistently with his sexuality and

engage in prohibited homosexual acts."); id . at 12 ("Thomasson's claim

that the statute violates the First Amendment also lacks merit. . . . The

new policy treats a service member's statement of homosexuality as a

basis from which to presume, in the absence of rebuttal by the member,

that he engages in, or is likely to engage in, homosexual acts. The First

Amendment does not prohibit such evidentiary use of a member's state-

ments."); id. at 13 ("Thomasson argues (Br. at 34) that heightened scru-

tiny should apply because the policy is directed, he contends, at `sexual

orientation.' As we show infra, pp. 22- 24, however, this argument funda-

mentally misapprehends the relevant classification, which the district

court correctly held is directed at homosexual `acts and the likelihood of

acts.'"); id. at 22 ("The Directives equally make clear that the new policy

is conduct- directed and does not target orientation."); id. at 23

("Thomasson's repeated assertion, (e.g., Br. 24, 33- 37) that the policy

classifies on the basis of homosexual orientation cannot be reconciled

with the plain regulatory language that equates `propensity' with `likeli-

hood.'" (emphasis added)).

trickery." Appellant's Br. at 26; Appellant's Reply Br. at 19. This is

necessarily to draw into question the validity of the regulation.16 Oth-

erwise, Lt. Thomasson's argument that the policy is entirely status-

based is patently specious, because, as the Administration notes, it is

contradicted by "the plain regulatory language." Gov't Br. at 23.

IV.

Because I would invalidate the regulation, I must address whether

the statute's mandatory exclusion of known homosexuals is constitu-

tionally permissible. Under rational basis review, this exclusion must

be sustained if both of the distinctions implicit in the statute - - that

between homosexuals and heterosexuals and that between known and

undetected homosexuals - - are rationally related to a legitimate gov-

ernmental interest. Heller v. Doe, 113 S. Ct. 2637, 2642 (1993).

Although not required under rational basis review, see id. at 2643

("[The Government] has no obligation to produce evidence to sustain

the rationality" of the Act; "a legislative choice is not subject to court-

room factfinding and may be based on rational speculation unsup-

ported by evidence or empirical data."), Congress made legislative

findings more than sufficient to demonstrate that the exclusion of

known homosexuals from military service both serves a legitimate

governmental interest and is rationally related to that interest.

Congress concluded, in findings that are fully supported in the leg-

islative record, see, e.g., S. Rep. No. 112 at 274- 75 (recounting Gen-

eral Schwarzkopf's testimony that unit cohesion"is the single most

important factor in a unit's ability to succeed on the battlefield"), that

"[s]uccess in combat requires military units that are characterized by

high morale, good order and discipline, and unit cohesion," 10 U.S.C.

§ 654(a)(6), and that "unit cohesion," defined as "the bonds of trust

among individual service members that make the combat effective-

_________________________________________________________________

16 Reno v. Koray, 115 S. Ct. 2021, 2024 n.2 (1995), urged upon us by

both the government and Lt. Thomasson as authority against our consid-

eration of the validity of the regulation, does not in any way suggest that

we should abstain from consideration of this question. In that case,

unlike in that sub judice, the plaintiff had abandoned his constitutional

argument altogether.

ness of a military unit greater than the sum of the combat effective-

ness of the individual unit members," was "[o]ne of the most critical

elements in combat capability," id. at§ 654(a)(7). It cannot be gain-

said that the development and preservation of unit cohesiveness

essential to combat capability is a legitimate - - indeed, compelling

- - governmental interest.

Nor can it be successfully maintained that the exclusion of known

homosexuals because of the effect that their manifested sexual attrac-

tion for members of the same sex has on unit cohesion does not sat-

isfy the minimal requirement that the exclusion rationally further the

government's legitimate interest in preserving unit cohesiveness.17 In

assessing the rationality of the relationship between Congress' objec-

tive and its means, "significant weight should be accorded the capac-

ity of Congress to amass the stuff of actual experience and cull

conclusions from it," see Usery v. Turner Elkhorn Mining Co., 428

U.S. 1, 28 (1976), and the burden is on he who challenges the govern-

mental action "to negative every conceivable basis which might sup-

port it," Heller, 113 S. Ct. at 2643.

Here, the Congress of the United States expressly found that "[t]he

presence in the armed forces [of homosexuals, as statutorily defined]

would create an unacceptable risk to the high standards of morale,

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

military capability." 10 U.S.C. § 654(a)(15); see also S. Rep. No. 112

at 289 ("The July 19 Memorandum carries forward longstanding

Department of Defense policy[;] . . . [it] makes it clear that the man-

datory discharge policy is necessary because such matters interfere

`with the factors critical to combat effectiveness, including unit

morale, unit cohesion, and individual privacy.'"). This finding is in

turn supported by, inter alia, the unequivocal testimony of our mili-

tary leaders, testimony which bears repeating. As General Powell tes-

tified,

_________________________________________________________________

17 Obviously it is this propensity, this attraction for members of the

same sex, that, at once, renders permissible the military's exclusion of

homosexuals in order to preserve unit cohesion and also distinguishes the

ban on homosexuals from what would be an emphatically impermissible

policy of excluding service members based upon, for example, race.

the presence of open homosexuality would have an unac-

ceptable detrimental and disruptive impact on the cohesion,

morale, and esprit of the armed forces.

. . .

. . . [O]pen homosexuality in units is not just the accep-

tance of benign characteristics such as color or gender or

background. It involves matters of privacy and human sexu-

ality that, in our judgment, if allowed to exist openly in the

military, would affect the cohesion and well- being of the

force. It asks us to deal with fundamental issues that the

society at large has not yet been able to deal with.

Id. at 278, 281. And as General Schwarzkopf, who shared General

Powell's belief, testified:

[I]n my years of military service, I have experienced the fact

that the introduction of an open homosexual into a small unit

immediately polarizes that unit and destroys the very bond-

ing that is so important for the unit's survival in time of war

. . . .

Id. at 280 (emphasis added); see also S. Hrg. 103- 845 at 780 (testi-

mony of Gen. Otjen) ("[W]hen somebody identifies themselves as a

homosexual . . . that is disruptive to unit cohesion."); Appellant's Br.

at 26 n.25 ("The so- called `privacy' and `sexual tension' rationales - -

which are variations on the `unit cohesion' theme, . . . if valid at all,

arise from the mere presence of homosexuals [in the military].").

Given Congress' conclusion that the mere presence of known

homosexuals in the military undermines unit cohesiveness, the statu-

tory ban on service by such persons is not just rationally related to the

end of unit cohesiveness, it is narrowly tailored to achievement of that

end. In fact, it is more narrowly- tailored to that end than was the pol-

icy embodied in the pre- 1993 Directives, which, by allowing ques-

tioning of recruits about their sexual orientation and investigations

into the homosexual propensities of service members, sought to ferret

out even unknown homosexuals in order to discharge them from mili-

tary service. The policy therefore would pass constitutional muster

even under heightened or strict scrutiny; it certainly passes under the

rational basis review applicable to the classifications at issue in this

case,18 as courts repeatedly held under the previous Directive, see,

e.g., Steffan v. Perry, 41 F.3d 677 (D.C. Cir. 1994) (en banc); Ben-

Shalom v. Marsh, 881 F.2d 454 (7th Cir. 1989), cert. denied, 494 U.S.

1004 (1990); cf. Woodward v. United States, 871 F.2d 1068 (Fed. Cir.

1989) (upholding military's pre- 1982 exclusion of homosexuals),

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

735 F.2d 1220 (10th Cir. 1984) (upholding pre- 1982 exclusion even

were heightened scrutiny applicable); but see Meinhold v. United

States Department of Defense, 34 F.3d 1469 (9th Cir. 1994) (inter-

preting the prior policy as "conduct- based" because the ban on status

raises constitutional problems), and as the Solicitor General candidly

acknowledged before this court.19

_________________________________________________________________

18 Jacobson v. United States, 503 U.S. 540, 551- 52 (1992), and

Robinson v. California, 370 U.S. 660, 667 (1962), which held unconsti-

tutional the criminal punishment of individuals based upon a presump-

tion of action from mere status or predisposition, do not dictate

otherwise. Discharge from military service is not"punishment," as the

District of Columbia Circuit observed in Steffan , 41 F.3d at 687. See also

Gov't Br. at 30 ("Jacobson was a criminal prosecution, which involves

restrictions not applicable to military personnel decisions."). In any

event, the statute as written does not presume likely conduct from status,

but merely homosexual propensity (that is, inclination or attraction) from

a statement or other manifestation of homosexuality.

19 THE COURT: Does the United States believe that if this regulation

permits the discharge of someone who is homosexual, irrespective of

conduct, then the regulation is invalid?

COUNSEL: No.

THE COURT: So in other words . . . [t]he military and Congress

can provide for the discharge of any individual who is homosexual in the

view of the Department of Justice; is that correct, Mr. Kneedler?

COUNSEL: Well, this case does not present that.

THE COURT: I understand that.

. . .

COUNSEL: And that yes, in the sense that the- - that the military

is entitled to make a judgment that an expression . . . that one is homo-

Because the Administration's policy regarding homosexuals in the

military, implemented through regulation, is fundamentally different

than the statute enacted by the Congress and signed into law, I would

invalidate that policy as contrary to statutory mandate. I would, how-

ever, uphold the policy against military service by known homosexu-

als that was actually enacted into law by the Congress of the United

States, as a permissible exercise of the Legislature's plenary authority

to prescribe regulations for the military.

Judges Russell, Widener, Wilkins, Hamilton and Williams join in

this opinion.

HALL, Circuit Judge, dissenting:

Before I explain why I would reverse the judgment of the district

court, I must comment on the extended discussion of the military con-

text of this case in the majority opinion.

_________________________________________________________________

sexual has a correlation at least, as the D.C. Circuit said in Steffan, a cor-

relation that that - -

THE COURT: My question is: Suppose there's no correlation irre-

spective of conduct, may the military discharge homosexuals in the view

of the Department of Justice constitutionally?

COUNSEL: That would present - - That would present a more diffi-

cult question. We acknowledge that - -

THE COURT: Does the United States have a position on that?

Because in my view that's what Congress intends. And the question is

whether the executive branch has attempted to circumvent that through

the regulations. So I may have to face that question, and I need the

Department's view on that.

. . .

THE COURT: Does the United States have a position on the ques-

tion I asked; or does it not? It may not. I'm just asking.

COUNSEL: We believe that such a policy would be constitutional.

But we acknowledge that because of the overriding needs of the military,

we believe that such a policy would be constitutional.

Transcript of Oral Argument, Sept. 12, 1995, at 44- 47 (emphasis added).

I recognize that our duty in weighing the constitutionality of a stat-

ute is "`grave[ ] and most delicate,'" and I do not propose to "`lightly

second- guess'" any decision of Congress or of the President.1 Though

the delicacy of the situation stems from the respect we owe the legis-

lature and executive, the gravity inheres in our duty to defend the

Constitution against the trespasses of those branches, no matter how

carefully or pedantically they be constructed, and notwithstanding

their popularity. The Founders gave us lifetime tenure to assure that

we would not shrink from that duty.2

Likewise, though raising the armies and commanding them are the

exclusive tasks of the Congress and President, we have a role - - a

vital one - - in ensuring that the military remains submissive to the

Constitution and civil authority. We have now had a large standing

army for half a century, and the Republic has endured. In the annals

of history, our experience must be counted as the exception rather

than the rule, and I am convinced that the presence of a strong and

independent judiciary, upon which the people may rely to guard indi-

vidual rights, deserves much of the credit for this good fortune. Free-

dom is not inherited; it is earned through eternal vigilance. The

military is a sentinel in its way, and we in ours.

With that said, I must and do concede that the military is a unique

society within a society. The discipline and self- sacrifice that charac-

_________________________________________________________________

1 See supra at 10 (quoting Blodgett v. Holden, 275 U.S. 142, 148

(1927) (opinion of Holmes, J.), and Board of Educ. of Westside Commu-

nity Schools v. Mergens, 496 U.S. 226, 251 (1990)).

2 As Alexander Hamilton argued at the time:

Considerate men of every description ought to prize whatever

will tend to beget or fortify that temper [independence] in the

courts; as no man can be sure that he may not be tomorrow the

victim of a spirit of injustice, by which he may be a gainer today.

. . .

That inflexible and uniform adherence to the rights of the Con-

stitution, and of individuals, which we perceive to be indispens-

able in the courts of justice, can certainly not be expected from

judges who hold their offices by a temporary commission.

Federalist No. 78 (Hamilton), at 470- 471 (Rossiter ed. 1961).

terize military service have little in common with the liberty and self-

interest of civilian life, and rules of constitutional law designed for the

latter must sometimes be tailored to the special needs of the military.3

Those rules nonetheless apply; they must apply.

Implicit in the term "national defense" is the notion of

defending those values and ideals which set this Nation

apart. For almost two centuries, our country has taken singu-

lar pride in the democratic ideals enshrined in its Constitu-

tion . . . . It would indeed be ironic if, in the name of

national defense, we would sanction the subversion of one

of those liberties . . . which makes the defense of the Nation

worthwhile.

United States v. Robel, 389 U.S. 258, 265 (1967). Aside from cheap-

ening our national values, a broad "military exception" from the Con-

stitution in the interest of defending us from foreign danger could

transform the military into a domestic danger. Love of one's own lib-

erty is inborn; love of another's must be learned. Permitting disre-

spect of constitutional rights to flourish within the military would

inevitably cause disrespect of them without it. Consequently, while I

will defer, as I ought and must, to the professional judgment of mili-

tary commanders on things military, I may never defer to their judg-

ment on things constitutional.

It is critical in this case to resist falling into discussion of generali-

ties, as if each homosexual were a clone of some preening archetype.

This case is about Lieutenant Paul Thomasson, and only him. The

behavior of others is beside the point. Even without the challenged

policy, some homosexuals would be unfit for military service, and

some among them whose sexual misconduct were the root of their

unfitness. The same, of course, can be said for heterosexuals. One

need only to read the newspaper to know that the libidos of heterosex-

_________________________________________________________________

3 E.g., Brown v. Glines , 444 U.S. 348, 354 (1980) (permitting restric-

tions on speech likely to interfere with vital prerequisites to military

effectiveness).

ual American servicemen are not always restrained by military codes

of conduct. But most are.

So, why was Lt. Paul Thomasson discharged?

It was not because of "conduct" in any ordinary sense of the word.

To say his service record is "spotless" risks understatement; "spar-

kling" is a better choice. In his decade in the Navy, Lt. Thomasson

rose through the ranks from ensign to full lieutenant. He has excelled

in every task assigned him. In April 1991, he was chosen over numer-

ous peers to be an intern to the Joint Chiefs of Staff at the Pentagon.

He spent a year there, preparing briefings for Joint Chiefs Chairman

Gen. Colin Powell and Secretary of Defense Richard Cheney, and he

accompanied them to Congressional hearings on the military budget

and force reductions. He was awarded the Joint Service Commenda-

tion Medal for "superlative performance" of that role, and, at the end

of his internship, Gen. Powell thanked him in a personal letter for

"contribut[ing] immeasurably" to the Joint Chiefs' success. Thomas-

son closed his career in the service of Rear Admiral Albert Konetzni,

who, ironically, was in charge of implementing the policy on homo-

sexuality at issue here; nevertheless, Admiral Konetzni recommended

him for immediate promotion to Lieutenant Commander on the very

day of his discharge.4

The performance coin has no other side: the Navy does not com-

plain that Thomasson ever rendered middling, let alone deficient, ser-

_________________________________________________________________

4 The high esteem reflected by this recommendation was nothing new.

In 1990, Commander T. M. Feeks noted that Thomasson"routinely out-

performs many lieutenant commanders." In 1992, Air Force Brigadier

General C. V. Jones of the Joint Chiefs of Staff, who had directly super-

vised Thomasson during his internship, reported that"he is ready now for

promotion to Lieutenant Commander." Rear Admiral Alexander Krekich,

who shared supervisory responsibilities with Gen. Jones, concurred in

this recommendation. Adm. Krekich described Thomasson as "a super

star - - one of the Navy's future leaders" and as "the top intern among

a group of superlative junior officers." He concluded, "I would

personally seek out to serve with me again! Outstanding `Flag lieutenant'

& 3 or 4 star material. Groom early." I could go on and on, inasmuch as

the effusive tone of this praise pervades Thomasson's entire service

record.

vice. Moreover, the Navy has no proof that Thomasson has engaged

in sodomy or broken any other conduct rule, high or petty. Conduct

cannot be the cause of his discharge.

Likewise, the discharge cannot be explained by Thomasson's

homosexual status per se. Under the policy,5 homosexuals are

expressly permitted to serve.

It is only because he has said that he is homosexual.

There is no difference between being and saying except that saying

produces a reaction in others. The issue, then, is whether saying, and

producing a reaction, is a ground for discharge that may constitution-

ally be applied to Lt. Thomasson. I believe that it is not.

II.

A classification violates equal protection if effecting an impermis-

sible purpose was a (not the) motivating factor for the classification,

because

[r]arely can it be said that a legislature or administrative

body operating under a broad mandate made a decision

motivated solely by a single concern, or even that a particu-

lar purpose was the "dominant" or "primary" one.

Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429

U.S. 252, 265 (1977).

Private prejudice is a private matter; we are free to hate. But the

same concept of liberty for all that protects our prejudices precludes

their embodiment in law. "The Constitution cannot control such prej-

udices but neither can it tolerate them. Private biases may be outside

the reach of the law, but the law cannot, directly or indirectly, give

them effect." Palmore v. Sidoti, 466 U.S. 429, 433 (1984). This rule

_________________________________________________________________

5 The policy explicitly states that "homosexual orientation is not a bar"

to "service entry or continued service." Department of Defense Directive

1332.30 at 2- 1 para. C (March 4, 1994).

applies even though the group targeted by the prejudice is not a "sus-

pect" or "quasi- suspect" class for equal protection analysis. City of

Cleburne v. Cleburne Living Center, 473 U.S. 432, 448 (1985).6 Con-

sequently, the desire to disadvantage a politically unpopular group is

never a legitimate governmental interest. Id. at 447; United States

Dep't of Agriculture v. Moreno, 413 U.S. 528, 534 (1973).

There is a great deal of evidence that the statute was motivated by

a desire to accommodate prejudice against homosexuals. In announc-

ing the policy, the President stated that "those who oppose lifting the

ban are clearly focused not on the conduct of individual gay service

members, but on how nongay service members feel about gays in

general and, in particular, those in the military service." Assistant

Secretary of Defense Edwin Dorn testified that "much of the resis-

tance to gays is grounded in fear and prejudice." Retired Admiral

Thomas Moorer, former Chairman of the Joint Chiefs of Staff, served

on an advisory committee during development of the new policy. He

was quite blunt about his views: homosexuals engage in "a filthy,

disease- ridden practice," are "inherently promiscuous," and have no

place in the military. He stated that many other"military people"

share his views. Finally, Lt. General John Otjen, who chaired the Mil-

itary Working Group, stated that "there's a collective sense in the mil-

itary . . . that homosexuality is wrong." Gen. Otjen believed that all

members of the Military Working Group shared this"collective

sense." Moreover, he conceded that, but for fear of and prejudice

against homosexuals, the policy would be unnecessary.

The evidence that prejudice against homosexuals is a purpose of

"don't ask, don't tell" is therefore quite strong.

III.

We are told, though, that tolerating this intolerance is essential to

"unit cohesion." Even if accommodating the supposedly widespread

disdain for gays were a permissible governmental purpose - - and it

_________________________________________________________________

6 It is not necessary, therefore, to decide here whether homosexuals are

a suspect or quasi- suspect class.

is not - - there is no evidence that the discharge of Lt. Thomasson will

rationally further that purpose. Indeed, there is only speculation that

the discharge of any homosexual would do so.

Dr. Lawrence J. Korb, Assistant Secretary of Defense under Presi-

dent Reagan, offered this critique of the "unit cohesion" rationale:

There are at least three . . . major problems with the "unit

cohesion" argument. First, it represents a severe and some-

what defeatist underestimation of the ability of today's ser-

vicemembers to keep their focus on professional military

concerns; it also represents a uniquely curious (and, I

believe, incorrect) admission that our soldiers and sailors

could not effectively follow orders and do their jobs if we

lifted the ban. Second, kowtowing to the prejudices of some

by excluding others has never been an acceptable policy

rationale, either in the military or in our society at large.

And third, in the several units where acknowledged homo-

sexuals are serving today (usually, by court order), there are

no signs of unit disintegration or bad morale.

General Otjen, while a strong supporter of the "unit cohesion"

hypothesis, admitted that it was based on the personal views of mem-

bers of the Military Working Group rather than hard facts. The lack

of real evidence is not for lack of investigating. In 1992, the General

Accounting Office investigated similar organizations that permit open

homosexuality in their ranks, and, the next year, the Secretary of

Defense commissioned a study of analogous organizations and for-

eign militaries by the Defense Research Institute of the RAND Corpo-

ration. Both studies reported no serious problems resulting from the

presence of open homosexuals. See Able v. United States, 880 F.Supp.

968, 978 (E.D.N.Y. 1995).

In any event, we have in the record before us a real homosexual,

a real unit, and hence a real test of the "unit cohesion" hypothesis.

Lieutenant Thomasson served for over fifteen months after admitting

his homosexuality. His stellar job performance continued. There were

in fact persons in his unit who disapproved of homosexuality, but they

continued to do their duty and had no difficulty working with Lt. Tho-

masson. In fact, some were forced to question their preconceptions in

light of Lt. Thomasson's example.7 Not a single sailor testified that

he had suffered even mildly diminished morale.

The actual experience in Thomasson's unit should not surprise us.

The ability of the American soldier to put duty before prejudice has

been tested before.

"Unit cohesion" is a facile way for the ins to put a patina of ratio-

nality on their efforts to exclude the outs. The concept has therefore

been a favorite of those who, through the years, have resisted the irre-

sistible erosion of white male domination of the armed forces.

Though the prejudices underlying such resistance have doubtless out-

lived the erosion, they have not manifested themselves in a loss of

"unit cohesion."

Race is the obvious example. "Don't ask, don't tell" was formu-

lated when the chairman of the joint chiefs of staff was a black man,

a black man whose presence in the otherwise all- white inner circle of

our military caused no apparent friction or decay in its morale, perfor-

mance, or cohesion. Likewise, I am enough of a realist to know that

there are racists serving in our armed forces, racists to whom Gen.

Powell's high rank must have been distasteful. They did their duty

anyway. Lest the irony escape anyone, consider the opinion of a com-

mittee, much like the Military Working Group behind"don't ask,

_________________________________________________________________

7 The views of Yeoman Third Class John J. Broughton are typical:

At first [after Thomasson's disclosure], I was shocked and did

not know whether or not to back out [of a volunteer assignment

to work with Thomasson] and work in my old office. I did not

know whether I could work with a homosexual. I decided to

stick with the decision I made prior to knowing of LT Thomas-

son's disclosure. I am glad I did. The knowledge I have gained

. . . from LT Thomasson is invaluable. . . . He was always pro-

fessional towards me. LT Thomasson[,] in my opinion, is the

best "LT" in the Navy. . . . His sexual orientation had no adverse

effect on myself or to the Navy. With so few good naval officers,

the Navy should definitely keep LT PAUL THOMASSON.

don't tell," that studied the proposed racial integration of the Navy in

the 1940s:

Enlistment for general service implies that the individual

may be sent anywhere, - - to any ship or station where he

is needed. Men on board ship live in particularly close asso-

ciation; in their messes, one man sits beside another; their

hammocks or bunks are close together; in their common

tasks they work side by side; and in particular tasks such as

those of a gun's crew, they form a closely knit, highly coor-

dinated team. How many white men would choose, of their

own accord, that their closest associates in sleeping quarters,

at mess, and in a gun's crew should be of another race? How

many would accept such conditions, if required to do so,

without resentment and just as a matter of course? The Gen-

eral Board believes that the answer is "Few, if any," and fur-

ther believes that if the issue were forced, there would be a

lowering of contentment, teamwork and discipline in the

service.

Experience is the dread enemy of prejudice, and experience has

routed the views of the General Board.

Another incongruity of the "unit cohesion" hypothesis behind

"don't tell" is that it encourages lying in the interest of building and

maintaining "bonds of trust" among the troops. A relationship built on

deception is anything but a "bond of trust." As the court observed in

Able, 880 F.Supp. at 979,

[T]he court deems extraordinary . . . the almost total lack of

concern evidenced in the Congressional hearings and the

Committee reports as to the impact on unit cohesion of the

attempt to enforce secrecy on homosexuals and to enlist

them in the perpetration of a hoax on heterosexuals. Com-

mon sense suggests that a policy of secrecy, indeed what

might be called a policy of deception or dishonesty, will call

unit cohesion into question.

* * *

. . . [H]eterosexuals and homosexuals alike would be enti-

tled to think it demeaning and unworthy of a great nation to

base a policy on pretense rather than truth.

The sad corollary of this "policy of pretense" is that moral courage

like that displayed by Lt. Thomasson is punished.

IV.

The policy also operates in an unconstitutional manner. Its bedrock

is a presumption that everyone will fail to comply with rules of con-

duct - - a declared homosexual is bound to misbehave, and the mem-

bers of his unit will doubtless allow private prejudice to override

discipline. A presumption of misconduct from a person's status, or

even from his private prejudices, does not comport with due process.

An analogy offered by Lt. Thomasson at oral argument makes the

point well. The Supreme Court has upheld the constitutionality of the

military's uniform regulations, notwithstanding that they bar the

wearing of yarmulkes. Goldman v. Weinberger, 475 U.S. 503 (1986).

Now suppose a serviceman writes a letter to his superior stating, "I

am an Orthodox Jew." Has he broken the uniform regulations? Of

course not. Should he be disciplined or discharged on account of his

presumed "propensity" to wear a yarmulke? Of course not. Should he

be discharged because his status and accompanying presumed propen-

sity are presumed to stir up anti- Semitism among the majority gen-

tiles? Of course not. In America, we presume that individuals obey

the rules until they prove otherwise. If persons do not obey rules with

which they disagree, or are presumed to act upon every urge or desire

whatever the legal consequences, then rules are a vain exercise

indeed.

[M]ost people obey the law even when they disapprove of

it. This obedience may reflect a generalized respect for

legality or the fear of prosecution, but for whatever reason,

the law's prohibitions are matters of consequence.

Jacobson v. United States, 503 U.S. 540, 551 (1992). See also Powell

v. Texas, 392 U.S. 514, 543 (1968) (Black, J., concurring)

("Punishment for a status is particularly obnoxious . . . ; the mental

element is not simply part of the crime but may constitute all of it.")

Cf. Robel, 389 U.S. at 423- 428 (member of Communist Party could

not be presumed to have the specific intent to further its unlawful

goals).

The intolerability of a presumption of misconduct from a status

renders irrelevant the majority's unremarkable holding that the First

Amendment does not bar the evidentiary use of an"admission." Of

course it does not. But Thomasson did not "admit" anything that

could justify his discharge. He said, "I am gay." Let us take that as

admitted. "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 . . . ." 8 Thomasson has not "admit-

ted" any homosexual conduct.

The rejoinder, of course, is that the statute and policy define speech

as "conduct." This definition fails to withstand constitutional scrutiny,

for two reasons. First, as I have already discussed, it impermissibly

presumes that homosexuals are unable to obey rules of conduct. Sec-

ond, it creates a classification among homosexuals based solely on

speech. Because there is no reason even to "rationally speculate"9 that

declared homosexuals are more likely to break the rules than unde-

clared - - the opposite speculation seems far more accurate - - this

rule must be targeted at suppressing the speech itself.10 Here we meet

up with the First Amendment, but on much different ground than the

majority tackles it.

_________________________________________________________________

8 Directive 1332.30, para. C.

9 See Heller v. Doe, 113 S.Ct. 2637, 2642 (1993) (stating constitutional

minimum for legislative findings underlying a classification).

10 Hence, the popular label for this prong of the policy - - "don't tell"

- - is quite accurate.

Suppressing speech is "grave[ ] and most delicate" stuff. The mili-

tary has a broader power to control speech than a civilian government,

Brown v. Glines, 444 U.S. 348 (1980), but even there the power is

exceedingly narrow: speech may be suppressed only if it is likely to

interfere with vital prerequisites to military effectiveness. Id. at 354.

The "vital prerequisite" here is, I suppose, the accommodation of the

prejudices of heterosexual servicemen. I very much doubt that such

accommodation - - never a legitimate legislative end - - can ever be

a "vital prerequisite" to the military's mission. In any event, Lt. Tho-

masson has proved beyond any doubt that his speech had no deleteri-

ous impact at all, let alone to some "vital prerequisite" to military

effectiveness. If anything, the expulsion of a fine officer in retaliation

for his speech will ultimately prove worse for the Navy.

VI.

Lt. Paul 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 con-

duct in any way at any time, and absolutely no evidence that his

exemplary record is not indicative of his likely future behavior.

Lt. Paul Thomasson's career is over because it is presumed that he

will misbehave in a manner that is assumed to incite the prejudices

of his colleagues, whom it is speculated will abandon their duties to

defend the United States rather than tolerate him in their midst. There

is no proof of any of these hypotheses in the record, and there is abun-

dant disproof. In the final analysis, the expression of Lt. Thomasson's

thoughts, without more, is the cause of his"honorable" banishment

from the Navy.

"I think we must let his mind alone."11

I dissent.

_________________________________________________________________

11 American Communications Ass'n v. Douds, 339 U.S. 382, 444 (1950)

(Jackson, J., concurring and dissenting).

Judge Ervin, Judge Michael and Judge Motz join in this dissent.