Chapter Three Pruitt v. Cheney, Meinhold v. U.S. Department of Defense and Steffan v. Aspin Introduction On August 19, 1991, the United States Court of Appeals for the Ninth Circuit handed down its decision in Pruitt v. Cheney.1 In this ruling the appeals court reversed in part a ruling by the district court. It had granted a summary judgment, for the Army, against the Captain Dusty Pruitt U.S.A.R., upholding her honorable discharge from the United States Army Reserve for being a lesbian. On January 29, 1993, Judge Terry Hatter of the United States District Court in California handed down his decision in Meinhold v. United States Department of Defense.2 Judge Hatter, building on the decision in Pruitt, declared that the United States Navy's discriminatory policy against homosexuals violates the equal protection guarantee inherent in the due process clause of the Fifth Amendment. On November 16, 1993, the United States Court of Appeals for the District of Columbia Circuit released its decision in Steffan v. Aspin.3 In this decision, the appeals court ruled that the Navy's policy of discriminating against homosexuals violates the equal protection guarantee inherent in the due process clause of the Fifth Amendment. Each of these cases is unique, but each has dealt the Department of Defense a series of important defeats. I. Legal Reasoning of Pruitt, Meinhold and Steffan The cases of Dusty Pruitt, Keith Meinhold and Joseph Steffan all place one similar issue before the courts; equal protection inherent in the due process clause of the Fifth Amendment. Dusty Pruitt raises an additional constitutional issue before the court; her statement that she is a lesbian is protected under the First Amendment. This First Amendment claim is in fact predominantly what her opening brief unsuccessfully addresses. Keith Meinhold also raised an additional constitutional issue, that the Navy's policy violates Article I, Section 9 of the Constitution.4 Joseph Steffan's opening brief is predominantly devoted to addressing his Fifth Amendment claim. The major difference between Pruitt's opening brief and those of Meinhold and Steffan is its reliance on the First Amendment. Her statement "I am a lesbian" is what she was discharged for because the Army assumes that those who state that they are gay or lesbian engage in homosexual conduct in violation of military law. Pruitt began by citing Department of Defense reports, the experiences of her own and that of other serve members who have served openly without affecting the morale or discipline of the unit. Pruitt then argued that the statement "I am a lesbian" is protected because it constitutes political speech which touches upon a matter of public concern. The public concern is the elimination of homophobia in society in general and within the military. In addition, to deny the right of one to "come out" to society as a whole restricts the ability to "come out" to oneself. This has the same stigma of denying ethnic Americans the right to use their native language or culture in order to be accepted into society. Thus the regulation of the Army that prohibits the statement that one is gay or lesbian burdens the right to free speech more than is necessary to further an important governmental interest.5 As Keith Meinhold points out, Article I Section 9 of the Constitution prohibits the the government from legislatively determining guilt and inflicting punishment, "No Bill of Attainer ... shall be passed."6 Meinhold argues that to discharge a service member solely on their sexual orientation, not their sexual conduct, is to punish him without trial. This is because in his case he was not afforded a proper hearing in which any evidence of wrong doing was presented and was punished in the absence of conduct.7 The Fifth Amendment claim of all three, Pruitt, Meinhold and Steffan, are based on the same basic principal. They all argue the Department of Defense regulations, and their own services' regulations, promotes private biases against gay men and lesbians. These bias are unfounded and is not related to a legitimate governmental interest. To allow the military to continue to propagate these private biases is to lend governmental legitimacy that is not permissible under current Supreme Court rulings.8 II. Pruitt v. Cheney, 963 F.2d 1160 (9th Cir. 1992) Reverend Dusty Pruitt joined the Army in 1971 and served on active duty until 1976. At that point, Pruitt left the Army to pursue studies as a Methodist minister but remained in the Army Reserve. Throughout her active and reserve service she received high marks and good personnel reports. Just before she was to be promoted to the rank of major, an article appeared in the Los Angeles Times in which she admitted that she was a lesbian. This article prompted the Army to initiate an investigation into the charge that she was a lesbian, stop her promotion to major and revoke her security clearance. As a result of these actions Pruitt turned to the civil courts for relief. A. Background Pruitt joined the Army as a Lieutenant in 1971 and served in a number of facilities. In December of 1972, she received the Army Commendation Medal and was transferred to the U.S. Army Recruiting Main Station in Dallas, Texas. While there, she received a perfect score on the yearly Officer Evaluation Report; shortly thereafter she was promoted to the rank of captain. After leaving the active service in 1976 and joining the reserves, she was transferred to the Nuclear, Biological and Chemical School at Fort Drum in New York where she served as a instructor. On January 27, 1983, the Los Angeles Times published an interview with Pruitt entitled "Pastor Resolves Gay, God Conflict: Church Works to Heal Homosexual's Religious Scars." In this article, she discussed the personal conflicts that she has had to resolve as a lesbian and a minister and an Army officer. This article also concentrated on her work as a pastor at the Metropolitan Community Church in Los Angeles, which has a predominantly gay and lesbian congregation. One week after this article was published Pruitt was notified that she was under investigation for her sexual preferences and that the Army was suspending her impending promotion to Major.9 On April 4, 1983, Pruitt filled a suit in district court claiming that the Army was violating her First Amendment rights by attempting to discharge her. Pruitt argued that her speech in the published article was protected under the First Amendment because it was political speech and touched on a matter of public concern; hence she could not be discharged solely on her admission of being a lesbian. The district court denied a motion by the Army to dismiss until the completion of its administrative investigation. On April 17, 1984, Pruitt was advised by the Army that it intended to revoke her security clearance "on the ground that 'substantial evidence of record [supports] the conclusion that you are a practicing homosexual (lesbian) as defined by paragraph 2-38, AR 135-175.'"10 Pruitt responded with letter to the Army stating: "'I am a homosexual. I do not believe that as a homosexual woman, I am a security risk; therefore, I cannot see what the matter of my being a homosexual has to do with my security clearance....'"11 On September 7, 1985, an Army administrative board was convened at which time they decided that enough evidence existed to conclude that Pruitt was a lesbian as defined under Army Regulation 135-175. The recommendation was accepted by the review authority of the Army and Pruitt was honorably discharged on July 9, 1986. Pruitt renoticed her motion for summary judgment12 and the Army responded by renewing its motion for summary judgment. The district court granted the Army's motion, while denying Pruitt's, "stating that the Army's determination that homosexual personnel are incompatible with its military mission is entitled to substantial deference."13 Pruitt filed an appeal; the appeals court delayed review until it issued its en banc decision in Watkins v. United States Army.14 B. Panel Decision by Appeals Court The appeals court rejected Pruitt's First Amendment claim. It ruled that Pruitt was not discharged for her speech, which is a threshold requirement for raising such a challenge, see Johnson v. Orr.15 While it is true that many of the statements made in the Los Angeles Times article constitute political speech, and most of the substance is protected under the First Amendment, she was discharged for her orientation, not this speech. The Army regulation provides for the discharge of service members who have a propensity to engage in homosexual conduct. The statement that she is a lesbian, by Pruitt, is grounds for discharge by the Army's rationale.16 After the court dismissed Pruitt's First Amendment claim it turned to the Equal Protection doctrine, even though Pruitt only made general allegations that her discharge was unconstitutional. The fact that Pruitt did not state a claim does not disqualify her from relief "unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."17 The district court did not give this deference to Pruitt in the original hearing. The appellate court ruled that accusations made by Pruitt, "for example, that 'the defendants do systematically remove homosexuals who are similarly situated to the plaintiff from the Armed Services ... on the basis of thoughts, speech and status'"18 are sufficient to constitute an equal protection claim.19 The Army responded to this challenge by citing Beller v. Middendorf,20 in which the Ninth Circuit upheld the discharge of three enlisted Navy personnel for sodomy. The court responded by noting that "Beller, however, is distinguishable in three respects, and its holding is weakened in a fourth."21 First, Beller was not a status case but a conduct case. The fact that the Army can discharge service members for certain conduct in not challenged here; nor is there any evidence presented that Pruitt engaged in any prohibited conduct. Second, the Navy had submitted evidence to support the due process underpinnings of its regulations, which the Army has not done in this case. In fact, the Army has provided no evidence justifying its regulation. In addition, Beller was an appeal from several summary judgments. Third, Beller was a case concerning substantive due process, this is an area where the courts have been reluctant to tread since the late 1930s.22 Fourth, one of the justifications the Navy offered in Beller was the tension "between known homosexuals and other members who 'despise/detest homosexuality.'"23 Since that decision in 1980, the Supreme Court has handed down its decision in Palmore v. Sidoti,24 in which the Court unanimously ruled that "[p]rivate biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect."25 The Court, in 1985, in its ruling of City of Cleburne v. Cleburne Living Center, Inc. 26"made clear that this principle is not confined to instances of racial discrimination reviewed under strict scrutiny."27 In light of this, the reasoning given by the Navy in Beller should not be accepted today as a matter of law without being examined. The appellate court next addressed the Army's reliance on High Tech Gays v. Defense Industries Security Clearance Office, in which the 9th Circuit upheld the Department of Defense practice of subjecting gay civilian defense workers to expanded security clearance investigations. The court noted that it upheld the government's rational basis in this case, because the government in fact presented a rational basis that foreign intelligence agencies, most notably the KGB, had a practice of targeting homosexuals. The court noted that there is nothing in this decision which proposes that the government should not have to provide a rational basis. In Pruitt, the Army has presented no justification for its policy.28 The last argument presented by the Army in Pruitt's appeal is that the courts should defer to military judgment in such cases. The court recognized that heightened deference should be given to the military in its decisions. This, however, does not mean that all suits brought against the military should not be considered, even though some decisions are not fit for judicial review. "If we now deferred, on this appeal, to military judgment by affirming the dismissal of the action in the absence of any supporting factual record, we would come close to denying reviewability at all."29 In light of this reasoning the court upheld the district court's ruling on Pruitt's First Amendment claim. It reversed the district court's ruling that Pruitt had failed to state a claim on which relief could be granted and the summary judgment granted to the Army. The case was remanded to the district court for hearings in line with the appeal courts ruling. The Army petitioned the court for a rehearing en banc but was denied.30 III. Meinhold v. United States Department of Defense, et al. 808 F. Supp. 1445 (S. D. Cal. 1992) Volker Keith Meinhold joined the United States Navy at the age of 17 and served with distinction until his discharge in 1992. He was discharged after he announced that he is gay during an interview on ABC World News Tonight in 1992. After this announcement, the Navy began discharge procedures against Meinhold. In the process of these hearings, the Navy violated many of its own procedural regulations. After his discharge Meinhold filled suit in federal district court in California. In his suit he raised several constitutional questions. District Judge Terry Hatter, building on the 9th Circuit's decision in Pruitt found that the Navy's discriminatory policy against service members with a homosexual orientation is unconstitutional. A. Background In April of 1980, at the age of 17, Meinhold joined the Navy; at no time during this enlistment process did the Navy inquire about his sexual orientation. At the end of his basic training, in which he graduated first in his company, Meinhold was meritoriously promoted. After basic training Meinhold attended Aviation Apprentice Training, where he again graduated first in his class. After a brief assignment at VS-32, a sonar school, Meinhold was nominated to attend officer candidate school by his commanding officer and was again promoted; in addition Meinhold was selected for the Navy's color guard. At the completion of his assignment at VS-32, Meinhold attended Naval Air Crewman Candidate School where he again graduated first in his class. In 1983 Meinhold was selected to attend the anti- submarine warfare operations center school in Virginia. After this assignment he was stationed in the Philippines. In July of 1985, Meinhold left the Navy to attend college. Immediately after leaving the Navy, Meinhold began to receive requests from the Navy to re-join the service; in October of 1985 he reenlisted. During his reenlistment process the Navy never inquired into Meinhold's sexual orientation; he was assigned to Moffit Field in California. Upon Meinhold's return, his rank and expertise continued to rise, he was promoted again and was made a Master Training Specialist. On May 19, 1992, in part of an interview on ABC's World News Tonight he acknowledged that he was gay. Meinhold's sexual orientation by this time was well known inside his unit and by the base commander at Moffit Field. The following day Meinhold was informed that because of his statement on national television, he was being considered for administrative discharge. On June 29, 1992, the administrative board was convened to consider Meinhold's discharge. During the hearing of this administrative board the Navy violated many of its own procedural safeguards. Contradictory interpretations of the Navy's regulation concerning homosexuality were presented. Over the objection of Meinhold's counsel the Navy introduced an unsworn statement of alleged misconduct conducted by Meinhold. No notice was given to the defense of such a statement and no chance to dispute or cross-examine its maker was given. In the Navy's closing arguments it urged the board to recommend discharge, in part, on the fact that Meinhold did not testify on his own behalf or deny the charge. In addition, the Navy's counsel joined the board, in direct violation of Navy regulations, in its closed deliberations. Meinhold, on October 6, 1992, filed a Verified Complaint and Motion for Preliminary Injunction31 against the United States Department of Defense and the Navy, requesting immediate reinstatement. On November 10, 1992, Judge Hatter issued a preliminary injunction against the Navy, reinstating Meinhold until a decision on the full merits of the case could be issued.32 B. District Court's Decision After the trial on the merits, Judge Hatter released his decision on January 29, 1993; he found for the plaintiff, Meinhold. The reasoning for his decision was divided into three parts. First, he found that even though Meinhold did not exhaust his possible intraservice procedures, that lapse was unimportant in this case. While there were many procedural errors committed by the Navy's review board, there is no evidence that its decision would change. Second, the fact that the military policy was based solely on status, not on conduct, violated the equal protection clause inherent in the due process clause of the Fifth Amendment. The military did not provide a factual record to support its reasoning in this policy as it related to its permissible goals and the court there for did not need to defer to "military judgment" under Pruitt v. Cheney. Third, Judge Hatter examined the military's rationale for their ban. He starts: The Navy contends that its ban against gays and lesbians is rationally related to its goals of maintaining discipline, good order and morale; fostering mutual trust and confidence among service members; the need to recruit and retain service members; and maintaining public acceptability of the Navy.33 The rationale of homosexuals being a security risk he dismissed because of a statement by Secretary of Defense Dick Cheney on December 6, 1992 to the contrary. Judge Hatter then went on to examine the factual record provided by the military, which consisted of a report by the United States General Accounting Office (GAO). This report stated that the military's rationale is "not capable of being determined authoritatively by scientific means or proven studies."34 The conclusion of the report stated that the military's policy is based on "military judgment [which is] inherently subjective in nature [and not susceptible to] scientific or sociological analysis."35 This was the rationale struck down in the Pruitt decision. Judge Hatter then went on to review the factual basis of the ban, though it was not provided by the defense. He started with a 1957 report commissioned by the Secretary of the Navy to review its policy regarding homosexuality. The report found no "visible supporting data [to support the conclusion that gays and lesbians] cannot acceptably serve in the military."36 Then, in 1976, the Chief of Naval Personnel told the Judge Advocate General in a memorandum that "no empirical proof exists at this time [to support the Navy's contention that] homosexuality has an adverse effect upon the completion of the [military] mission."37 Judge Hatter continued by citing a 1988 report commissioned by the Department of Defense to study homosexual veterans. The report concluded that "having the same-gender or an opposite- gender orientation is unrelated to job performance in the same way as being left- or right-handed."38 In 1989, another Department of Defense commissioned study of the suitability of homosexuals for military service concluded that sexual orientation was irrelevant-if not advantageous. [H]omosexuals more closely resemble those who successfully adjust to military life than those who are discharged for unsuitability... [H]omosexuals show preservice suitability-related adjustment that is as good or better then the average heterosexual.39 In 1990, in an Administrative Message, Vice Admiral Joseph S. Donnell, Commander of the Surface Atlantic Fleet, stated: "[e]xperience has ... shown that the stereotypical female homosexual in the Navy is hardworking, career-oriented, willing to put in long hours on the job and among the command's top professionals."40 Finally, Dr. Lawrence J. Korb, who was responsible for implementing and approving the current policy as the former Assistant Secretary of Defense, stated that there is no longer any justification for the armed services' current ban on homosexuals serving in the military ... [that] each of the justifications offered in support of this policy is without factual foundation ... [and, therefore,] there is no longer any rational basis [for it.]41 In addition to this overwhelming factual evidence against the military's ban, Judge Hatter raised the fact that of all of the nations in the North Atlantic Treaty Organization, only the United States and Great Britain still bar homosexuals from service. Canada's military leaders ended their ban against homosexuals as the result of a court order on issued October 27, 1992. By order of the prime minister, the Australian military also lifted its ban of homosexuals on November 23, 1992. With consideration of this evidence against the military's policy, Judge Hatter concluded that to accept the GAO's reasoning would be to defer to "military judgment," which would result in the denial of judicial review inconsistent with the Pruitt decision.42 IV. Steffan v. Les Aspin On April 1, 1987, Joseph C. Steffan only six weeks before his graduation, on the advice of Conduct Officer Major Funk, resigned from the United States Naval Academy in Annapolis, Maryland. This was the culmination of a two- month investigation and hearing process concerning Steffan's sexual orientation. On December 9, 1988, Steffan wrote the Secretary of the Navy requesting to withdraw his resignation, to be awarded his diploma and accept his commission. On December 29, 1988, Steffan filed suit against the Navy claiming that his constitutional right to equal protection had been violated, which began a series of rulings. On November 16, 1993, a three judge panel of the United States Court of Appeals for the District of Columbia Circuit overturned the district court's ruling in favor of the Navy and declared that the Navy's discriminatory policy against homosexuals is unconstitutional. A. Background Steffan entered Annapolis in 1984, and by his sophomore year had distinguished himself as a "gifted" midshipman who had "exhibited excellent leadership." In his junior year he was selected as a regimental commander, in charge of half his class. During his senior year he was selected as battalion commander, making Steffan one of the ten highest ranking midshipman. This position put him in direct command of one-sixth of the midshipman. In addition, Steffan twice sang the national anthem at the Army-Navy game, was the premier soloist of the Glee Club and served as president and cantor of the Catholic Choir. In February of 1987, the Naval Intelligence Service began an investigation into Steffan's sexual orientation on a report from the Academy that Steffan had admitted to another midshipman that he was gay. Upon learning of this investigation, Steffan asked the academy chaplain to intercede on his behalf to attempt to allow him graduate with his class. Captain H.W. Habermeyer Jr., the Commandant of Midshipmen, advised that Steffan seek legal counsel. In a meeting, shortly thereafter between Captain Habermeyer and Steffan, he admitted that he was gay. The following day a brigade military performance board was convened, at which time Steffan again admitted that he was gay. After a closed deliberation the Board changed his military performance from "A" to "F," suspended him from class, and recommended his discharge for "insufficient aptitude for commissioned service." On April 1, 1987, an academic board, on the performance board's recommendation, after a hearing recommended that Steffan be discharged. To avoid having his Naval record marked "discharged for homosexuality," Steffan, under pressure, offered his resignation.43 On July 20, 1989, District Judge Oliver Gasch refused the Navy's motion for dismissal.44 On November 15, 1989, Judge Gasch dismissed Steffan's suit for his failure to answer a question asked by the Navy during discovery.45 The Navy repeatedly asked Steffan if he had ever engaged in homosexual conduct, which he refused to answer on advice of counsel. Steffan's counsel felt that by asking this question the Navy was trying to turn a sexual orientation case into an sexual conduct case. When Steffan refused to answer this question in direct violation of a court order, Judge Gasch ruled that "[p]laintiff cannot utilize his fifth amendment privilege as a sword to frustrate defendant's right to obtain relevant information or prepare a defense where plaintiff himself has initiated the lawsuit."46 On December 7, 1990, the Court of Appeals overturned the district court's ruling, stating that Steffan was discharged for his orientation, not on charges of sexual misconduct.47 The Navy's presumption that because Steffan is gay he must have a predilection to violate regulations of conduct is not supported; hence Steffan does not need to answer and is protected by the Fifth Amendment. The case was remanded back to the district court for continuation of discovery. On December 9, 1991, after full arguments, Judge Gasch delivered his decision in Steffan v. Cheney.48 He found that the Navy and other Department of Defense regulations that ban homosexuality "establish classifications that rationally further legitimate state purposes."49 In reaching this decision, Judge Gasch addressed the equal protection arguments proposed by Steffan and the rationale proposed by the Navy. He began by determining that the standard for review of this case was rational basis, the same used in Meinhold, but formulated his own rational basis. Judge Gasch raised, himself, the issue of AIDS and argued that "far and away the highest risk category for those who are HIV-positive, a population who will with a high degree of medical certainty one day contract AIDS, is homosexual men."50 This threat of the spread of HIV and AIDS by homosexuals endangered the health and welfare of the military to the point where banning homosexuals from it constituted a rational basis. B. Panel Decision of Appellate Court Steffan, through his counsel, appealed Judge Gasch's decision to the United States Court of Appeals for the District of Columbia; on November 16, 1993, a three judge panel handed down its decision overturning the district court ruling. Chief Judge Abner Mikva wrote the unanimous opinion of the panel. Mikva wrote "[b]ecause we find no rational basis for the Directives under which the Navy excluded Mr. Steffan solely because he truthfully admitted his sexual orientation, we hold that these Directives are facially unconstitutional."51 Mikva first disposed of the Secretary Defense's request for military deference, on which his brief relied heavily. The chief judge noted that a "strong and independent" military is necessary and important to national security but that does not mean that the court should ignore the Constitution where the military is involved. As such, the court will review this case with its "customary thoroughness." Second, the court dismissed the military's reliance on cases such as Dronenberg v. Zech52 and Bowers v. Hardwick. These and other cases cited by the military Mikva noted are different; in Steffan "the class at issue is defined by homosexual orientation, not conduct."53 Third, Mikva did not inquire what form of equal protection analysis should be used; the court simply determined that the military's regulations do not survive rational basis review. In doing this, the court left open to debate what level of scrutiny that will be employed in the future. Absent a burden upon a suspect class, the court's role is merely to ensure: (1) that the government has a legitimate purpose for distinguishing among the individuals affected; and (2) that the means chosen to effect that purpose bear some reasonable relation to it, and thus are not wholly arbitrary.... The government is under no obligation to justify its behavior .... the court must evaluate and find wanting any potentially legitimate grounds to uphold the government's actions.54 Under this standard of review Mikva first addressed the military's claim that it is only barring those with a propensity to engage in illegal conduct; noting that there is no constitutional question that such conduct can be prohibited. The Secretary at oral argument raised the fact that Steffan could have denied the presumption that he engaged in or intended to engage in homosexual conduct notwithstanding his status. The Secretary went on to claim that a person, regardless of orientation, might not desire to engage in conduct; these people were described as "celibate homosexuals." This claimed "exception" by the Secretary was the first time the court had ever heard of such a rule. In addition the Secretary, to his knowledge, had never heard of such an argument being invoked by a service member wishing to remain in the service.55 The court responded with: [n]o reference to 'celibate homosexuals' or to any supposed distinction between 'attraction' and 'desire,' can be found in the Directive. Therefore, Mr. Steffan could hardly be expected to divine the existence of this "exception" either from the language of the Directives or from past practice.56 For the purpose of argument, the court conceded this point despite its strong misgivings of the existence of such an exception. Even accepting this argument, the court determined that the Directives are far more concerned with "desires," "thoughts" and "status" then conduct. Having determined that the Directives are more concerned with "desires," "thoughts" and "status," Mikva addressed the constitutionality of such regulations. The court began by noting that many people, in the abstract, desire to do many things; this, though does not mean that they engage in or succumb to such desires. Mikva continued by stating that "a person's inclinations and 'fantasies ... are his own and beyond the reach of the government...'"57 In addition "[o]ur whole constitutional heritage rebels at the thought of giving government the power to control men's minds."58 Mikva noted that even in the crime of treason, one of the most serious crimes, one can only be held responsible for one's actions not what one might wish to do. In this case Steffan is not charged with committing any illegal conduct, but is only charged with prohibited "thoughts." The next area that is covered by the court is the effect on morale, discipline and the recruitment of heterosexuals. The Secretary does not claim that service members with a homosexual orientation will intentionally sabotage military interests or that they lack good morale or discipline. The Secretary instead is afraid of the effect that gay men and lesbians will have on heterosexual members of the armed service; namely that heterosexual soldiers will be "appalled" if they are required to serve beside gay men and lesbians. "Under rationality review, the court must presume that the Secretary's fears are well-founded, even though we may have a higher opinion of the majority of members of the armed forces then do their policy makers."59 This rationale, though, did not stand up to constitutional scrutiny under the decisions in Palmore and Cleburne in which the Supreme Court held that private biases can not be given effect by the law. A privacy argument was also proposed by the secretary; this argument has two facets. One, gay and lesbian soldiers will "stare" at or "ogle" other service members in close quarters such as showers. Second, such a fear of invasion will be felt by heterosexuals. The first rationale falls to the same distinction between action and thoughts that was dismissed earlier. In addition, it runs afoul of the secretary's own proposition of "celibate homosexuals." The second argument is based on irrational fears and stereotypes that must be dismissed under the decisions in Palmore and Cleburne. Finally, the court said it must evaluate any rationale that might be pertinent though not raised by the secretary. First, the fears of HIV and AIDS; this disease is spread by sexual contact, both homosexual and heterosexual, not by sexual orientation. Second, the contention that homosexuality or homosexual orientation makes one more susceptible to blackmail is only caused by this regulation. If service members were not forced to remain in the "closet" no such leverage could be used and to maintain this ban only increases such a risk.60 Conclusion While each of these case are still in progress the results so far are encouraging. The ruling in the case of Dusty Pruitt by the Ninth Circuit was appealed by the military to the Supreme Court, which denied cert. This denial by the Court is in effect an endorsement of the Ninth Circuit's decision. The ruling by Judge Hatter in the case of Keith Meinhold was appealed directly to the Supreme Court by the Department of Defense. The appeal was brought in an attempt to stay the implementation of Judge Hatter's ruling until conclusion of appeal. The Court agreed with the military and over turned the Hatter's blanket order to end discrimination but upheld the reinstatement of Meinhold. The case of Joseph Steffan created more of a problem for the military. The military and the Executive branch were unsure on how they should respond to the appeals court ruling. The political and legal problems of trying to defend the old policy led to request for a very limited appeal to the full circuit. The military appealed on a separation-of-powers argument that only the President with the approval of Congress can commission a military officer, not the judicial branch. This request for a limited appeal was not accepted by the en banc panel; the whole case and issue will be heard. None of these cases, Pruitt, Meinhold and Steffan, have made any progress in recent months. _______________________________ 1 963 F.2d 1160 (1992 U.S. App.) 2 808 F. Supp. 1455 (1993) 3 Steffan v. Les Aspin, U.S. Court of App. for the Dist. of Columbia No. 91-5409, 16 Nov 1993. Lexis, Mead Data Central, Inc., Lexis 29521. 4 Article I Section 9 of the U.S. Constitution prohibits the government from passing a bill of attainer. 5 Pruitt v. Weinberger et. al No. 87-5914, App ellant's Opening Brief 6 Constitution, art. I, sec.. 9. 7 Meinhold v. U.S. Department of Defence et.al No. CV 92-6044, Appellant's Opening Brief 8 Pruitt, Opening Brief; Meinhold Opening Brief; Marc Wolinsky and Kennith Sherrill, eds., Gays and the Military: Joesph Steffan versus the United States (Princeton: Princeton Univerity Press, 1993), 3-39. 9 Pruitt, Opening Brief 10 Pruitt v. Cheney 963 F.2d 1160, 1163 (1992 U.S. App.) 11 Ibid., 1161. 12 Renoticed her motion for summary judgment means that Priutt refiled her motion for summary judgment (see note 76). 13 Ibid. 14 Ibid., 1161-1162 15 617 F. Supp 170, 172, 144, (E.D. Cal. 1985) 16 Pruitt 863, 1163-1164. 17 Conley v. Gibson 355 U.S. 41, 45-46 (footnote omitted), quoted in Pruitt, 1164. 18 Pruitt, 1164. 19 Ibid. 20 632 F. 2d 788 (9th Cir. 1980), cert. denied, 452 U.S. 905, 454 U.S. 885 (1981) 21 Pruitt, 1165. 22 The Supreme Court beginning in 1937 began to retreat from its role in cases involving substantive due process, see West Coast Hotel v. Parrish, 300 U.S. 379 (1937). 23 Beller 632 F.2d at 811, quoted in Pruitt, 1165. 24 466 U.S. 429 (1983) 25 Ibid., 433. 26 473 U.S. 432 (1985). 27 Pruitt, 1165. 28 Ibid., 1164-1166. 29 Ibid., 1166-1167. 30 See conclusion of Chapter Three for more recent decisons in Dusty Pruitts case. 31 Filled a civil law suit and asked that the Navy be temporarly ordered by the court to reinstate him until the completion of a hearing on the merits of his case. 32 Meinhold v. Department of Defence 808 F. Supp 1453, 1455 (1992) 33 Navy Military Personal Manual 3630400(1). Quoted in Meinhold v. United States Department of Defense, 808 F. Supp. 1455, *1457 34 "Defense Force Management: Statistics Related to DOD's Policy on Homosexuality," United States General Accounting Office. 1992. 69. Quoted in Meinhold v. United States Department of Defense, 808 F. Supp. 1455, *1457 35 Ibid., 56. 36 Report of the Board Appointed to Prepare and Submit Recommendations to the Secretary of the Navy for the Revision of Policies, Procedures and Directives Dealing with Homosexuality. 15, March 1957. 5 Quoted in Meinhold v. United States Department of Defense, 808 F. Supp. 1455, *1457 37 Memorandum from Chief of Naval Personnel to Judge Advocate General. 2, August 1976. Quoted in Meinhold v. United States Department of Defense, 808 F. Supp. 1455, *1457 38 Theodore R. Sarbin & Kenneth K, Eoyang, Nonconforming Sexual Orientation and Military Suitability. 1988. 33. Quoted in Meinhold v. United States Department of Defense, 808 F. Supp. 1455, *1457 39 Michael a. McDaniel, Preservice Adjustment of Homosexual and Heterosexual Military Accessions. 1989, 19. Quoted in Meinhold v. United States Department of Defense, 808 F. Supp. 1455, *1457 40 Administrative Message from Commander, Naval Surface Flett, Atlantic, to the Naval Surface Fleet, Atlantic. 2, July 1992. Quoted in Meinhold v. United States Department of Defense, 808 F. Supp. 1455, *1458 41 Meinhold's Exhibit 12, p. 874, PP 4 & 7. Quoted in Meinhold v. United States Department of Defense, 808 F. Supp. 1455, *1458 42 See the Chapter Three conclusion for more up to date information. 43 Steffan, Lexis 29521, 2. 44 Steffan v. Cheney, et al. 733 F. Supp. 115 1989 U.S. Dist. 45 Steffan v. Cheney, et al. 733 F. Supp 121 1989 U.S. Dist. 46 Ibid., 127. 47 Steffan v. Cheney et al. 920 F. 2d. 74 1990 U.S. App. 48 708 F. Supp. 1 1991 U.S. Dist 49 Steffan v. Cheney 708 F. Supp. 1, 48 1991 U.S. Dist 50 Ibid., 38. 51 Steffan, Lexis 29521, 1. 52 741 F.2d 1388 (D.C. Cir. 1984), in which the D.C. Circuit upheld the discharge of a Navy petty officer for sodomy. 53 Steffan, Lexis 29521, 8. 54 Ibid., 9. 55 This stated exception is similar to an attempt by the Navy to save its former policy when reviewed in the cases of Matlovich and Berg, see Chapter One. 56 Steffan , Lexis 29521, 10. 57 Jacobson v. United States 112 S. Ct. 1535, 1542 (1992) (quoting Paris Adult Theature I v. Slaton, 413 U.S. 49, 67 (1973)), quoted in Steffan, Lexis 29521, 11. 58 Stanley v. Georgia 394 U.S. 557, 565 (1969), quoted in Steffan, Lexis 29521, 11. 59 Steffan, Lexis 29521, 12. 60 Ibid.,