FACT SHEET RECENT LEGAL CASES: CONSTITUTIONAL ANALYSIS In the last five years, three Court of Appeals cases and two District Court cases have considered the constitutionality of the military policy banning lesbians, gay men, and bisexuals from the military. Ben-Shalom v. Marsh, 881 F.2d 454 (7th Cir. 1989), Woodward v. United States, 871 F.2d 1068 (Fed. Cir.1989), and Steffan v. Cheney 780 F.Supp. 1 (D.D.C.1991)(currently on appeal) have upheld the constitutionality of the military's policy. Pruitt v. Cheney, 963 F.2d 1160 (9th Cir. 1992) ruled that there must be a real basis for the military's policy other than mere prejudice of others and remanded the case to the district court. Meinhold v. U.S. Dept of Defense, 808 F.Supp. 1455 (C.D.Ca. 1993), following the rationale of Pruitt, found there was no rational basis for the military's policy and held it was unconstitutional. CASES FINDING THE BAN CONSTITUTIONAL In the cases of Ben Shalom, Woodward and Steffan, the plaintiffs argued that the military's ban violated their federal constitutional right of equal protection. In each case, the courts focused primarily on the military's claim that the ban preserved "good order" and "morale." Finding that order and morale were important to an effective service, the courts simply accepted the military's claim that the ban was necessary to achieve good order and morale. None of these courts demanded from the military an explanation of how lesbians, gay men, and bisexuals would impair order and morale, nor did the courts require the government to provide any concrete evidence for its claims. CASES QUESTIONING THE CONSTITUTIONALITY OF THE BAN Pruitt v. Cheney In Pruitt v. Cheney, the Ninth Circuit ruled that the appellate courts in Ben Shalom and Woodward had failed to adequately apply recent Supreme Court cases in their decisions. It had long been the law that the government could not discriminate against a group of citizens just because of other peoples' hostility to the group. U.S. Dept. of Agriculture v. Moreno, 413 U.S. 528 (1973). In Palmore v. Sidoti, 466 U.S. 429 (1984), the Supreme Court expanded on that point by ruling that a state court could not take custody of a child away from a white mother because she was living with a black man. The court ruled that constitutional equal protection prohibited the government from giving effect to private prejudices of others by discriminating against the woman. The next year, in Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985), the court said that Palmore was not limited to race or other "suspect" classifications. Ruling that a Texas town could not zone out a group home for the mentally disabled in a residential neighborhood, the court said that the fears of neighbors, and even the belief that some individuals might harass those living at the home, were not permissible bases for discriminating against an unpopular group. The Pruitt court found that when the military offered an explanation for the threat to order and morale posed by lesbians, gay men and bisexuals, it had simply asserted that non-gay members of the service "despise/detest" gay people and that their hatred would lead to actions which would harm order and discipline. In light of Palmore and Cleburne, the Pruitt court ruled that the Federal Constitution did not allow the government to give effect to private prejudices by creating a policy that catered to that prejudice. In Cleburne, the Supreme Court also held that courts may not simply accept any government argument that discriminating against an unpopular group will help achieve some legitimate purpose. Rather, the Court required the government to provide a real factual record for its claims. Based on the Cleburne ruling, the Ninth Circuit in Pruitt explained that if the military had some explanation for its policy that did not rely solely on the prejudice of others, the military would have to provide some factual support for its claim before the district court. The Solicitor General, under the Bush Administration, asked the Supreme Court to review and reverse the Pruitt decision. The Supreme Court declined to hear the case, thus allowing the case to stand. The case is currently before a district court and is stayed until after July 15th. Meinhold v. Department of Defense The district court in the case of Meinhold v. Department of Defense was the first court in the Ninth Circuit to consider the validity of the military's policy following the principles set forth in Pruitt. The Meinhold court struck down the ban because the military was unable to come up with any nonprejudicial factual basis for its policy. As the court noted, the military's own studies of its policy -- the 1957 Crittenden Report, and the 1988 and 1989 PERSEREC Reports -- found there was no factual basis for the policy of excluding known gay men, lesbians and bisexuals from the armed services. The Meinhold court issued an injunction against the discharge of individuals based on sexual orientation. The Ninth Circuit has ruled that this injunction is consistent with the temporary compromise currently in place, which puts individuals who acknowledge gay status into the standby reserve. CONCLUSION As the Pruitt and Meinhold decisions demonstrate, once the "hatred of others" rationale is eliminated under the Supreme Court requirements of Palmore and Cleburne, and the military is required to show a factual basis for the policy, it is very difficult for the government to argue that the policy is constitutional. This is the case even when the government simply has to show a "rational relationship" for its policy. If the courts ultimately accept a stricter standard than simply "rational review," the military's ban is even more likely to be struck down as unconstitutional. * * * * Prepared by the Legal/Policy Department of the Campaign for Military Service. 2707 Massachussetts Ave, NW Washington, DC 20009. (202) 265-6666.