Chapter Four Interim Policy, New Policy and Their Effect on Current Litigation Introduction President Clinton in his 1992 campaign for office made a promise to end the ban against gay men and lesbians serving in the United States military. With his victory, the realization that the ban could fall created a political fire storm that that only subsided on January 30, 1993, when a compromise was reached with congressional leaders. The resulting compromise delayed the the issuing of a presidential order until July 1993; this would give Congress time to hold hearings on the issue and allow the orderly implementation of a new policy. This new policy, most commonly called "don't ask, don't tell," was not well received because it still does not allow service members to serve openly. This restriction is viewed by many to be inconsistent with the court rulings on this issue in cases such as Meinhold and Steffan. The first case to be heard under the new policy is Able v. United States.1 Interim Policy and New Policy The interim policy announced on February 3, 1993, by then Secretary of Defense Les Aspin in essence put the whole debate on hold. The interim policy had two basic aspects. The first was the suspension of all discharge proceedings that were currently in process. The subjects of these discharge proceedings were to be placed on administrative leave. This essentially relieves the service member of all duty without pay but does not formally discharge them from the military. All new cases that appear were to be handled the same way; the suspected gay man or lesbian was to be placed on administrative leave pending the creation of the new policy. Second, recruiting stations for the military services were to stop asking new recruits if they were homosexual or bisexual and the question was to be removed from enlistment forms. The new policy was announced on July 19, 1993 by President Clinton. This policy was then codified by the Congress in the National Defense Authorization Act for the Fiscal Year 1994, 10 U.S.C. s 654, the military budget. By codifying the new policy any change outside of a declaration of unconstitutionality by the courts now requires congressional approval. This is an attempt by a majority of Congress to keep Clinton or a future president from changing the policy by executive order. The new policy differs from the pre-Clinton policy in only two aspects. First, service members and recruits will no longer be asked if they are homosexual or bisexual. Second, sexual orientation alone will not be grounds for discharge "absent of conduct." In conjunction, no investigation may be initiated solely to determine the sexual orientation of a service member. The problems with this new policy are numerous. Service members are still barred from stating "I am gay" or "I am a lesbian." In addition, they still can not show affection to a same-sex lovers such as holding hands, embracing or kissing. This, according to the new policy, shows a propensity to engage in homosexual acts that are still prohibited by military law. This regulation is not limited to being on duty or being on base but applies 24 hours a day, 365 days a year. These are limitations that are not put on heterosexual service members. They can state their sexual preference and show affection to their lovers or the objects of their affection without repercussions. In essence, this new policy codifies the old policy as it was enforced by many commanders: do not tell and do not make it obvious. The largest problem with the new policy is its implementation; it leaves much to the commander's discretion. This discretion includes what is to be deemed credible information that a service member has engaged in prohibited conduct. Information such as: a service member associating with known gay men or lesbians, presence of a service member at a gay bar, the possession of gay or lesbian literature and attending a gay rights or gay pride rally in civilian clothes is not to be considered creditable information. This information, though, when compounded with an accusation of prohibited can provide corroborating evidence to initiate an investigation. Navy guidelines on what constitutes credible information is: Credible information of homosexual conduct exists when the information, considered in light of its source and all attendant circumstances, supports a reasonable belief that a service member has engaged in such conduct. It requires a determination based on articulable facts, not just a belief or suspicion.2 This discretion possessed by the commander, coupled with the lack of empirical evidence needed for such investigations to begin, leaves the new policy very vulnerable to abuse. This possibility for abuse is even more troubling when combined with the past performance of of many base commanders and the investigative services of the military branches. Former Secretary of Defence Richard Cheney on several occasions issued orders to the Joint Chiefs of Staff and other high ranking defence officials to end purges and the demand for the repayment of tuition for dismissed gay or lesbian ROTC and academy graduates. These orders were ignored by the Joint Chiefs of Staff, base commanders and investigative services.3 Randy Shiltz, in Conduct Unbecoming, chronicles many civil rights violations by the investigative services of the military, especially the Naval Intelligence Service (NIS). The NIS is a civilian agency and has an abysmal records on civil rights in conjunction with investigations of gay and lesbian service members. The NIS repeatedly conducts investigations that include lying, psychical intimidation and abuse and/or psychological intimidation and abuse. This abuse includes: use of illegal wiretaps of both service member and civilian phones, the illegal opening of personal mail, the illegal search of service member and civilian dwellings, the interrogation of suspects without properly informing them of their constitutional rights, the refusal to provide an attorney when requested, fabrication of written statements and confessions, prolonged deprivation of sleep, and the confinement of uncooperative suspects in closets or similar confined ares for prolonged periods of time. When the NIS was forced to provide Petty Officer Third Class Terry Knox's defense attorney with a copy of its manual for interrogations disturbing similarities were found with Malleus Maleficarum. Malleus Maleficarum is an instruction manual written by Fathers Jacobus Sprenger and Henry Kramer, in 1484, for inquisitors in the German states on how to interrogate suspected witches.4 Information that is obtained by such abuses would never be allowed to be presented in a civilian court of law. The object, though, of such abuses by the NIS is to force a suspect to resign from the military and provided names of other gay men or lesbians. If the suspect refuses the ill gotten evidence is often allowed as evidence although many of the convictions are later overturned by appeal. Unlike civilian trials, though, service members are not allowed to remain out on bail pending appeal. The slow pace of "justice" for gay men and lesbians in the military means that their sentences are often complete before they are acquitted. Effects of New Policy on Litigation The most dramatic effect of the new policy in the fight to end the ban against gay men and lesbians in the military is its effect on litigation started under the pre-Clinton policy. The creation of a new policy means that most of previous judicial advances, made under the pre-Clinton policy, have little direct effect on new litigation. The exception, though is the Pruitt case. The most important aspect of this case, thus far, is the ruling that the court can and should review a claim such as that brought by Pruitt. This decision by the appeals court, and endorsed by the Supreme Court, will have a beneficial effect on litigation under the new policy. The rulings in Meinhold and Steffan will continue to be important for the individual who initiated the suit and for those discharged under the old policy. The inability to establish direct precedent, through, between Meinhold and Steffan does not make their cases totally unusable from a legal perspective. The effect of the new policy on the suit brought by Dusty Pruitt is minimal. The case of Dusty Pruitt is currently completing discovery. After the denial of cert by the Supreme Court to the military's appeal the beginning of discovery was delayed by the district court. The court wanted to allow the political process to run its course in relation to this issue. When the new policy was announced the court began discovery because the "conduct" for which Pruitt was discharged is still prohibited. In the case of Keith Meinhold the new policy should also have little effect. The major basis for Judge Hatter's ruling was the prohibition of service by gay men and lesbian based solely on sexual orientation. This ruling is based on the fact that the military regulation had no rational basis. This lack of rational basis is based on the vast evidence that shows no negative connection between sexual orientation and military suitability. In fact, the new policy contradicts the Hatter judgment. The ruling stated that there is no rational basis for the military to ban people with a homosexual orientation absent of conduct. The new policy, while claiming not to dismiss service members because of sexual orientation alone, still it applies a different standard of conduct for gay men and lesbians than it does for heterosexuals. This differentiation in prohibited conduct must still be supported by a rational basis. The Hatter judgment finds no rational basis for any differentiation between prohibited conduct of heterosexual and gay or lesbian service members. The D.C. Circuit in the case the case of Joseph Steffan held a similar view to that of Judge Hatter in the Meinhold case. The Court of Appeals however used a different reasoning, citing previous case law to find that the Army could not propagate societal prejudice. The most important part of the Steffan decision in regard to the new policy is the proposition that the Secretary that the Navy would permit a celibate homosexual. This is what the new policy seems to be aimed at. The presence of gay men or lesbians in this rationale is not an impediment to unit efficiency. Even with this exception the court still found that the military policy is unconstitutional. The Future of Litigation If the reasoning of the D.C. Circuit that was handed down in the Steffan decision is upheld the new policy will have serious constitutional problems. When these problems of legal precedent are combined with the findings in the Meinhold decision the new policy enters the courts in an troubled position. The important variable in both of these decisions are the judges. Judge Hatter, the author of the Meinhold decision, Chief Judge Mikva, Judge Wald and Judge Edwards, the three judge appellate panel for the Steffan case, all have a history of liberal judicial decisions. The D.C. Circuit has in the past been less than sympathetic to suits brought by gay men and lesbians in the search for equal protection. The final word on the future of the military ban will be given by the United States Supreme Court, which has been reluctant to address the issue in the past. They have denied cert in every case involving gay men and lesbians serving in the military. This reluctance, though, is likely to end because of the increasing number of suits being filed in the federal court system. This has resulted in differing decisions and a lack of a standard to be applied in the district and appellate courts. The question, though, is what case will eventually reach the court? The chances of the Court accepting cert on Meinhold or Steffan is unlikely. The Court in the past has been reluctant to hear a case that will have no direct precedent on future litigation. The cases of Dusty Pruitt, Keith Meinhold and Joseph Steffan will have little direct impact as precedent which will limit their chances of review before the Court. Cases have already been raised challenging the new policy. Able v. United States The case of Able v. United States is, in actuality, a suit brought by six service members challenging the constitutionality of the new policy. The plaintiffs are: Lieutenant Colonel Jane Able, Petty Officer Robert Heigl, First Lieutenant Kenneth Osborn, Sergeant Steven Spencer, Lieutenant Richard von Wohld and Seaman Werner Zehr. Each of these service members are gay or lesbian but their sexual orientation had not, until the filing of this suit, been known to their services. On April 4, 1994, U.S. District Judge Nickerson issued a decision which enjoined the Department of Defense from investigating, discharging or taking other punitive or adverse actions against the plaintiffs, until the completion of the suit. In this decision both the First and Fifth Amendment claims of the plaintiffs are addressed. The First Amendment claim of the plaintiffs is different in this case then in the Pruitt case. In this case the plaintiffs have not been discharged for their speech nor was any investigative action taken by the Armed Services before the case was filled. So, Not only do the new regulations bar them from stating their sexual orientation in public but the regulations bar them from stating it in the process of the hearing. To state this in the process of the hearing is grounds for dismissal from the Armed Services. This is plainly evident in the case of Heigl. He was informed by his commanding officer that he was being recommended for discharge because of the declaration that he is homosexual that was made because of the initiation of this cases. If Judge Nickerson had not issued this order Heigl would have been separated solely because of this suit and, in essence, would have been denied access to the courts. The guarantee of safe access to the courts for the redress of grievances is "'among the most precious of the liberties safeguarded by the Bill of Rights.'"5 The statement "I am a homosexual" also contains a "nonspeech" element as an act of identification. This in the past is where the courts have, such as in the case of Pruitt, been reluctant to find relief for gay or lesbian service members. This is because, the Supreme Court has ruled that the government can regulate speech if there is a sufficiently important governmental interest in regulating the "nonspeech" element. When the case involves the military the greater deference is given to the government such as in the case of Goldman v. Weinberger.6 In this case the Court found that the military could constitutionally bar a Jewish service member from wearing a yarmulke while on duty and in uniform. In addition, the Supreme Court has ruled that military can bar political speeches and demonstrations form military bases7 and the requirement that Air Force members must obtain command permission before they can circulate a petition on base.8 In the present case their is a marked difference though, the regulations in contention not only apply on base but in every aspect of their life. More importantly, [t]his court holds that there is a serious question as to whether a regulation goes beyond what is reasonably necessary to protect any possible government interest when it inhibits six service members from continuing to speak in court to make a constitutional challenge.9 In addressing the equal protection claim of the plaintiffs Judge Nickerson assumes that the regulation must only pass the rational basis standard for this motion. This leaves open the possibility of the use of a higher standard later. This is the area law, of which standard to use and the constitutionality of discrimination on the basis of sexual orientation, have been well addressed in the courts in cases under the previous policy. The suits have had differing results and these differing results signify the seriousness of the questions which the court will not try to answer now. "It is enough to say that the allegedly new policy makes the same distinction between homosexuals and heterosexuals as did the prior policy."10 These findings are only preliminary and serve to bar the military from taking action until the conclusion of the suit; it, none the less, is a blow to the military. Most importantly, because one of the requirements of preliminary injunction is that the plaintiffs must show, based on the merits, a likelihood of success. The likelihood, according to Judge Nickerson, is high. This injunction is similar to the injunction granted by Judge Hatter against the Navy given in the Meinhold case. Conclusion The hopes of many gay, lesbian and civil rights activists ended on January 30, 1993 with the announcement by President Clinton of the delay in implementing his campaign promise. The announcement of the new policy not meet with the enthusiasm from civil rights activists; the most telling response was the filling of a constitutional challenge within days of its release, the Able case. This challenge is not the only one nor are they going to cease as long as the the military policy continues to arbitrarily discriminate on the basis of sexual orientation. _______________________________ 1 Able v. United States, U.S. District Court, E.D. New York No. CV 94-0974, April 4, 1994. Westlaw, WL112117. 2 "President Announces Policy on Gays in the Military" Navy News Service 19 July 1993, NAVNEWS 050/93. (emphasis added) 3 Shilts, 710-711. 4 Ibid., 627-628. 5 Franco v. Kelly, 854 F.2d 584, 589 (2d Cir. 1988), quoted in Able. 6 475 U.S. 503 (1986). 7 Greer v. Spock, 424 U.S. 828 (1976) 8 Brown v. Glines, 44 U.S. 348 (1980) 9 Able, 5. 10 Ibid.