IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA - - - - - - - - - - - - - - - - - - x LIEUTENANT COLONEL JANE DOE, : PETTY OFFICER JOHN ROE, : FIRST LIEUTENANT DONITA HOLLOWAY, : STAFF SERGEANT HAROLD McCARTHY, : FIRST LIEUTENANT KENNETH OSBORN, : SERGEANT STEVEN SPENCER, and : LIEUTENANT RICHARD von WOHLD, : : Plaintiffs, : : -against- : : HONORABLE LES ASPIN, : Secretary of Defense, : Department of Defense, : The Pentagon, : Washington, D.C. 20301, : : Defendant. : : - - - - - - - - - - - - - - - - - - x COMPLAINT FOR DECLARATORY JUDGMENT AND PERMANENT INJUNCTION Plaintiffs Lieutenant Colonel Jane Doe, Petty Officer John Roe, First Lieutenant Donita Holloway, Staff Sergeant Harold McCarthy, First Lieutenant Kenneth Osborn, Sergeant Steven Spencer, and Lieutenant Richard von Wohld, for their complaint in this action allege: NATURE OF THE ACTION 1. This action for a declaratory judgment and a permanent injunction arises from the promulgation by the Secretary of Defense, at the instruction of the President of the United States, of a Department of Defense Directive (the "DoD Directive"). The DoD Directive (including a set of "Policy Guidelines" issued by defendant) is to be implemented and enforced by the defendant in his official capacity. The DoD Directive violates the United States Constitution. 2. Each of the plaintiffs is a lesbian or a gay man and a member of the United States armed forces. Each has served his or her country -- in some instances for many years -- bravely, honorably and with distinction. 3. The DoD Directive recognizes that "individuals with a homosexual orientation have served with distinction in the armed services of the United States." Nonetheless, it creates a system under which plaintiffs (and other gay men and lesbians in the armed services) are not judged solely by their fitness and ability to serve their country but, rather, are subject to investigation and discharge because of the perceived prejudices of others. 4. The DoD Directive imposes upon lesbians and gay men in the armed services, including plaintiffs, a restrictive, confused and self-contradictory set of rules (i) unrelated to fitness and ability to serve, (ii) to which heterosexual servicemembers are not subject, and (iii) the violation of which subjects plaintiffs to investigation and discharge. 5. The DoD Directive subjects to investigation and discharge any person who merely makes a statement "that he[or she] is homosexual or bisexual" or engages in an act that anyone might deem evidence of a "propensity or intent" to engage in "homosexual conduct" -- regardless of ability or fitness to serve. There are no analogous restrictions (pursuant to the DoD Directive or otherwise) imposed on speech or conduct reflecting heterosexuality. 6. The DoD Directive is internally inconsistent and impermissibly vague with respect to the speech or conduct that is prohibited, thus leaving plaintiffs with insufficient guidance as to what speech or conduct is proscribed. 7. Plaintiffs seek to serve their country, being judged solely by their ability and performance, without being forced to lie about who they are. They therefore bring this suit to enjoin enforcement of the DoD Directive and to obtain a declaration from this Court that the DoD Directive impermissibly deprives them of their basic constitutional rights. JURISDICTION 8. The jurisdiction of this Court is invoked pursuant to 28 U.S.C. $$ 1331 and 1346. VENUE 9. Venue is proper pursuant to 28 U.S.C. $ 1391(b). THE PARTIES 10. Plaintiff Lieutenant Colonel Jane Doe, U.S.A. (Res.), commands an Army Reserve battalion. She has served for more than twenty years in the United States Army and the United States Army Reserve. Lieutenant Colonel Doe cannot provide additional details about her state citizenship, unit or length of service because to do so would identify her. All plaintiffs fear that petitioning this Court in their own names will subject them to investigation and discharge pursuant to the DoD Directive. Because of this concern as well as others, plaintiff Doe proceeds pseudonymously. 11. Plaintiff Petty Officer John Roe, U.S.C.G., serves on active duty as a corpsman at a Coast Guard facility. Petty officer Roe has served with the Coast Guard for approximately five years. Petty Officer Roe cannot provide additional details about his state citizenship, unit or length of service because to do so would identify him. Because of the concerns described in the previous paragraph, as well as others, plaintiff Roe proceeds pseudonymously. 12. Plaintiff First Lieutenant Donita Holloway, U.S.A. (Res.), is a registered nurse serving with the 744th Medical Detachment, New Mexico National Guard, and is a citizen of the State of New Mexico. She has served with the New Mexico National Guard since 1990. Prior to joining that Guard unit, Lieutenant Holloway served three years in the Wyoming National Guard. 13. Plaintiff Staff Sergeant Harold ("Mac") McCarthy, U.S.A.F. (Res.), serves with the 414th Medical Service Squadron, 452nd Air Refueling Wing, March Air Force Base, California, and is a citizen of the State of California. Staff Sergeant McCarthy has been a member of the Air Force Reserve since 1984. 14. Plaintiff First Lieutenant Kenneth Osborn, U.S.A. (Res.), a citizen of the State of California, serves with the 304th Materiel Management Center, West Los Angeles, California. He has been a member of the Army Reserve since 1986. Prior to 1986, Lieutenant Osborn served for approximately one year in the California National Guard and for approximately two and one-half years with the United States Marine Corps Reserve. 15. Plaintiff Sergeant Steven Spencer, U.S.A. (Res.), a citizen of the State of Washington, served from 1990 to 1992 as a combat medic and, since 1992, has served as a licensed practical nurse, with the 164th Mobile Army Surgical Hospital at Camp Murray, Washington. Sergeant Spencer served on active duty with the United States Army from 1987 to 1990. 16. Plaintiff Lieutenant Richard von Wohld, U.S.N. (Res.), is a citizen of the State of California and has served for approximately four months as a Naval Flight Officer with Patrol Squadron 91, a reserve squadron at Naval Air Station Moffett Field, California. Lieutenant von Wohld enlisted in the United States Navy in 1979, earned an appointment to the United States Naval Academy in 1981, was commissioned as an Ensign in 1985 and served on active duty in the United States Navy until April 1993. 17. Defendant Les Aspin, the Secretary of Defense, is sued in his official capacity. In this capacity, he is charged with the supervision of plaintiffs and implementation and enforcement of the DoD Directive. THE UNCONSTITUTIONAL DoD DIRECTIVE 18. On July 19, 1993, at the specific direction of the President of the United States, defendant issued the DoD Directive, entitled "Policy on Homosexual Conduct in the Armed Forces." (A true and complete copy of the DoD Directive, including its "Policy Guidelines," is attached hereto as Exhibit A.) 19. The DoD Directive acknowledges that gay men and lesbians "have served with distinction in the armed services of the United States" and provides that "homosexual orientation is not a bar to service entry or continued service. . . ." 20. The DoD Directive mandates that "servicemembers will be separated for homosexual conduct," but defines "conduct" to include: a homosexual act, a statement by the servicemember that demonstrates a propensity or intent to engage in homosexual acts, or a homosexual marriage or attempted marriage. 21. The Policy Guidelines to the DoD Directive provide that any "statement that the [service]member is homosexual or bisexual" constitutes "homosexual conduct" for which a servicemember may be subject to investigation and discharge. 22. At the same time, the DoD Directive creates a "rebuttable presumption" that merely stating that the servicemember is gay or lesbian is sufficient grounds for discharge. 23. The servicemember subject to such a "presumption" may avoid discharge only by proving that he or she does not "engage in homosexual acts and does not have a propensity or intent to do so." The DoD Directive, by its terms, imposes a burden of proof that virtually no lesbian or gay servicemember can ever honestly meet. 24. The DoD Directive vests individual commanding officers with broad and undefined discretion to initiate inquiries or investigations and to commence discharge proceedings against gay or lesbian servicemembers. 25. In contrast to the burdensome and punitive rules imposed on lesbian and gay servicemembers with respect to their conduct and speech, heterosexual servicemembers are subject to no comparable limitations on their speech and conduct. 26. Gay and lesbian servicemembers, regardless of their ability to serve, are thus forced either to lie about their sexual orientation or be subject to discharge because of the perceived prejudice of others. THE EFFECT OF THE DoD DIRECTIVE ON PLAINTIFFS 27. The DoD Directive impermissibly singles out and sanctions plaintiffs (and other lesbian and gay servicemembers): Once identified as a lesbian or gay man, the servicemember loses the right to be judged solely on the bases of her or his ability and fitness to serve the United States and becomes subject to punitive treatment, to which no heterosexual servicemember is subject. 28. The DoD Directive proscribes and chills all public speech that would tend to identify plaintiffs as gay men or lesbians and a vast array of private and/or intimate speech and expressive conduct. It similarly burdens, chills and circumscribes plaintiffs' exercise of their right to free association and certain plaintiffs' rights to free exercise of their religion. 29. The vague and arbitrary DoD Directive renders it impossible for plaintiffs to know what speech or conduct will give rise to an investigation or inquiry which, if commenced, would require them to lie in order to rebut a discriminatory presumption, or lose their careers and opportunity to serve their country. 30. The vague and arbitrary DoD Directive invites commanding officers to engage in inconsistent application or arbitrary enforcement of its terms and to engage in selective investigation and prosecution of lesbian and gay servicemembers. 31. The DoD Directive erects an arbitrary distinction between the speech or conduct permissible for heterosexuals and the speech or conduct permissible for plaintiffs and other gay men and lesbians in the armed services. Plaintiffs and other lesbian and gay servicemembers risk investigation, persecution and discharge for engaging in conduct and speech of the type in which heterosexual servicemembers may engage freely and without risk. Under the DoD Directive, heterosexual servicemembers suffer none of the deprivations or injuries set forth above. 32. The DoD Directive further no legitimate governmental interest and lacks any relationship to a legitimate governmental interest. FIRST CLAIM FOR RELIEF VIOLATION OF THE FIRST AMENDMENT (FREE SPEECH AND FREE EXPRESSION) 33. Plaintiffs incorporate paragraphs 1 through 32 and further allege: 34. Because of the impermissible burden imposed by the DoD Directive as well as its chilling effect, the DoD Directive violates plaintiffs' First Amendment rights of free speech and free expression, as well as the rights of plaintiffs and other servicemembers, whether lesbian and gay or not, to receive the protected speech that the DoD Directive impermissibly prohibits, chills, and burdens. 35. Plaintiffs are already suffering injury and will suffer further irreparable harm to their constitutional rights under the First Amendment if the DoD Directive is not declared unconstitutional and defendant is not enjoined from implementing and enforcing the DoD Directive. SECOND CLAIM FOR RELIEF VIOLATION OF THE FIRST AMENDMENT (FREE ASSOCIATION) 36. Plaintiffs incorporate paragraphs 1 through 35 and further allege: 37. The DoD Directive violates plaintiffs' First Amendment right of free association. 38. Plaintiffs are already suffering injury and will suffer further irreparable harm to their constitutional rights under the First Amendment if the DoD Directive is not declared unconstitutional and defendant is not enjoined from implementing and enforcing the DoD Directive. THIRD CLAIM FOR RELIEF VIOLATION OF THE FIRST AMENDMENT (FREE EXERCISE) 39. Plaintiffs incorporate paragraphs 1 through 38 and further allege: 40. The DoD Directive violates certain plaintiffs' First Amendment right of free exercise of religion. 41. Plaintiffs are already suffering injury and will suffer further irreparable harm to their constitutional rights under the First Amendment if the DoD Directive is not declared unconstitutional and defendant is not enjoined from implementing and enforcing the DoD Directive. FOURTH CLAIM FOR RELIEF VIOLATION OF THE FIFTH AMENDMENT (EQUAL PROTECTION) 42. Plaintiffs incorporate paragraphs 1 through 41 and further allege: 43. The DoD Directive violates plaintiffs' right to equal protection of the law under the Fifth Amendment to the United States Constitution. The DoD Directive intentionally discriminates against gay and lesbian servicemembers, including plaintiffs, and subjects them to different and punitive treatment. 44. As a result of the violations of plaintiffs' right to equal protection of the law under the Fifth Amendment, plaintiffs are suffering injury and will suffer further irreparable harm to their constitutional rights if the DoD Directive is not declared unconstitutional and defendant is not enjoined from implementing and enforcing the DoD Directive. FIFTH CLAIM FOR RELIEF VIOLATION OF THE FIRST AND FIFTH AMENDMENTS (VAGUENESS AND OVERBREADTH) 45. Plaintiffs incorporate paragraphs 1 through 44 and further allege: 46. The DoD Directive is vague, unintelligible, inconsistent, overbroad and fails to give plaintiffs (and other lesbian and gay servicemembers) adequate notice of what speech or conduct is proscribed and/or can form the basis for investigation and discharge. 47. The DoD Directive violates plaintiffs' rights under the First and Fifth Amendments to the United States Constitution. 48. As a result of the violations of plaintiffs' rights under the First and Fifth Amendments, plaintiffs are already suffering injury and will suffer further irreparable harm to their constitutional rights if the DoD Directive is not declared unconstitutional and defendant is not enjoined from implementing and enforcing the DoD Directive. SIXTH CLAIM FOR RELIEF VIOLATION OF THE UNIFORM CODE OF MILITARY JUSTICE AND THE FIRST AMENDMENT (PETITION CLAUSE) 49. Plaintiffs incorporate paragraphs 1 through 48 and further allege: 50. The DoD Directive circumscribes plaintiffs' ability to communicate effectively and freely with Members of Congress by making it an offense punishable by investigation and discharge for plaintiffs to identify themselves as gay or lesbian in such communications. 51. The DoD Directive violates the Uniform Code of Military Justice (10 U.S.C. $ 1034), which provides in relevant part that: "No person may restrict a member of the armed forces in communicating with a Member of Congress. . . .", and the Petition Clause of the First Amendment, which protects servicemembers' right to "petition the Government for a redress of grievances." 52. As a result of the violation of the Uniform Code of Military Justice and plaintiffs' rights under the First Amendment, plaintiffs are already suffering injury and will suffer further irreparable harm to their rights if the DoD Directive is not declared a violation of 10 U.S.C. $ 1034 and the Constitution and defendant is not enjoined from implementing and enforcing the DoD Directive. PRAYER FOR RELIEF Plaintiffs accordingly demand: a) a declaration that the DoD Directive is unconstitutional and violates the Uniform Code of Military Justice on its face and as applied to plaintiffs; b) a permanent injunction enjoining defendant from implementing and/or enforcing the DoD Directive; c) costs, disbursements and attorneys fees related to this action; and d) any additional further relief this Court deems appropriate. Dated: July 27, 1993 Respectfully submitted, William B. Rubenstein AMERICAN CIVIL LIBERTIES UNION FOUNDATION 132 West 43rd Street New York, New York 10036 (212) 944-9800 (ext. 545) Ruth E. Harlow, Marc E. Elovitz, Of Counsel. Beatrice Dohrn LAMBDA LEGAL DEFENSE & EDUCATION FUND 666 Broadway New York, New York 10012 (212) 995-8585 Evan Wolfson, Of Counsel. -and- David H. Braff, Michael Lacovara, Julie B. Crockett, Eulalia M. Mack, Michael B. Miller, Michael E. Swartz, Of Counsel, 125 Broad Street New York, New York 10004 (212) 558-4000 Attorneys for Plaintiffs