58 Introduction On July 4, 1776, the "founding fathers" of the United States ratified the Declaration of Independence and set forth to create a nation based on the freedom of its citizens. Less then two years later, on March 11, 1778, Lieutenant Gotthold Frederick Enslin became the first known man to be drummed out of the military of the United States for sodomy.1 Since this time the Armed Forces of this nation have continued to discharge solders from its ranks for their sexual practices. In time this regulation of action was expanded to include regulation of the private thoughts and desires of military personnel. These regulations for close to two centuries continued unchallenged, until 1968, Don Slater, a gay activist, established the Committee to Fight Exclusion of Homosexuals from the Armed Forces. This was the beginning of the fight for many gay men, lesbians and bisexuals to end the United States military ban against their service, that has become increasingly difficult for the military to sustain. From the creation of the United States Armed Forces until World War I the standing army of this nation remained small during peacetime. It was during military build-up in the early Twentieth Century that the Congress passed the Articles of War of 1916, the first complete revision of military law since 1806. It was in this revision that the Congress included the first sodomy laws for the military. In 1922, the first regulation of sexual thought and propensity was established as a result of a scandal at a Navy base in Newport, Rhode Island. These regulations continued to evolve to reflect the changing attitudes of society and needs of the military. With the birth of the modern gay and lesbian rights movement on June 27, 1969 and the end of the Vietnam War in 1973, several military personnel facing separation hearings for the first time mounted constitutional challenges to the military's policies. These challenges kept pace with many of the early gay-rights victories of the early nineteen- seventies. These early victories and the optimism that accompanied them, however, were short-lived. The organization of the religious right and social conservatives, in the late nineteen-seventies, ushered in a new era of political and social conservatism that dominated the nineteen-eighties. The Department of Defense, in response to the court defeats in the 1970s and the new political power of the social right issued Department of Defense Directives 1332.14 and 1332.20. These new directives departed from the trend in much of the western world towards greater social acceptance of gay men, lesbians and bisexuals. It was during this time of increased social conservatism that science began in earnest to study the causes of homosexuality. This preliminary research tended to confirm what many in the gay and lesbian community have claimed for years, most importantly that sexual orientation is not a choice or something learned or thought but an immutable trait derived from physiological differences. This is not only important in a social context, but becomes more important in the legal arena. The immutability of a trait that is the basis for discrimination against a minority is a consideration for what level of judicial scrutiny is to be used in constitutional challenges to discriminatory statutes or practices. It was also during the nineteen-eighties that the modern gay-rights movement received its most important judicial defeat, the finding by the United States Supreme Court that Georgia's law prohibiting sodomy is not unconstitutional. While this case did not address the military's policies it gave the anti-gay forces judicial ammunition from the nations highest court. It has also provided the military with justification for its continued ban against gay men, lesbians and bisexuals. The fight to end the ban against gay men, lesbians and bisexuals in the military did make some progress in the nineteen-eighties, most importantly in the case of Army Sgt. Perry Watkins. In a series of cases Watkins was able to estopp in the military from discharging him. The U.S. Court of Appeals for the Ninth Circuit reached this decision without addressing whether or not the military's ban against gay lesbian and bisexual service members is constitutional. While the Watkins' decision was not a complete victory by the gay-lesbian-rights forces it provided the movement with an important decision showing that the is not invincible on this issue. This decision was built up on in the case of Carolyn "Dusty" Pruitt, Captain U.S. Army Reserve (U.S.A.R.). The U.S. Court of Appeals for the Ninth Circuit ruled that the military must provide justification for its discriminatory policy. While this justification has been upheld in similar cases in the past, when the military has provided no justification courts have simply relied on military deference and upheld the policy. This requirement has placed greater importance on the military's justification, which is becoming impossible to support in an empirical manner. In the case of Navy Petty Officer Volker Keith Meinhold Judge Terry Hatter of the U.S. District Court for the Southern District of California built on the appeals court decision in Pruitt's case and made the military attempt to justify its exclusionary policy. The military was unable to justify its policy before the court, and Judge Hatter ruled the policy unconstitutional under the Fifth Amendment and barred the military from discharging any member on the basis of sexual orientation. This ban was short-lived; the Supreme Court overruled Judge Hatter's blanket order but let stand the order to reinstate Meinhold pending appeal by the government. Less the a year later, the United States Court of Appeals for the District of Columbia Circuit provided another blow to the military in its ruling for expelled Naval Academy Midshipman Joseph Steffan. In its decision the appeals court found that the military's policy banning gay, lesbian and bisexual service members is unconstitutional under the Fifth Amendment and ordered the Naval Academy to graduate and the Navy to commission Steffan. Although the three decisions in the cases of Pruitt, Meinhold and Steffan were important psychological victories, the election of President Clinton has made their legal precedents less important. The rewriting and claimed liberalization of the military regulations concerning sexual orientation have replaced the old policy which these decisions concerned. Hence, much of the litigation must start over. The advances made in the pre-Clinton challenges are not all lost, however, for much of the policy that was declared unconstitutional by the courts has been carried over into the new policy. Chapter One Historical Background and the Pre-Clinton Policy plus an Examination of Homosexuality Introduction Regulation of sexual conduct and orientation in the United States Armed Forces has existed for most of the 20th Century. The breadth and enforcement of such regulations has changed many times depending on the era and the social climate. These regulations of sexual conduct and orientation can be divided into two distinct areas. One area is that of the criminal sodomy laws; the other is the attempted regulation of personal thought and desires. Many of those who have fallen victim to these regulations have challenged their enforcement on varying grounds with mixed success. It was out of these challenges and a return to a more conservative political era that Department of Defense Directives 1332.14 and 1332.30 were born. It is ironic that, at the same time that many of these regulations were being conceived, science began in earnest to study homosexuality. I. Historical Background of the Pre-Reagan United States Military Policy The military did not implement its first stated policy concerning homosexual conduct until 1917. Before this date dismissals for sexual conduct were made under the other rules, such as conduct unbecoming. The first references to simple sexual orientation were not made until 1922. The policies were modified several times before the presidency of Ronald Reagan and Department of Defense Directives 1332.14 and 1332.20. One of the reasons for the modifications under President Reagan were constitutional challenges brought in the 1970's. A. Laws Concerning Sodomy The Articles of War of 1916 were the first complete revision of military law since the Articles of War of 1806; they were implemented on March 1, 1917. These Articles contained the first military sodomy laws; the ninety-third article concerned "'miscellaneous crimes and offences,' [and] proscribed assault with intent to commit any felony, including assault with intent to commit sodomy."2 This statute was not a criminalizing of sodomy itself; it only made assault with intent to commit sodomy illegal. Elaboration and guidance concerning this statute was given in the Manual for Courts-Martial in 1917, which stated: Sodomy consists in sexual connection with any brute animal, or in sexual connection, per anum, by a man with any man or women. (Wharton, vol. 2, p. 538.) Penetration of the mouth of the person does not constitute this offense. Both parties are liable as principals if each is adult and consents; but if either be a boy of tender age the adult alone is liable, and alone is sufficient. An assault with intent to commit this offense consists of an assault on a human being with intent to penetrate his or her person per anum.3 Congress passed new Articles of War in 1920 following World War I. The new articles made sodomy a separate offence and expanded it to include oral contact as well. The expansion of this sodomy law concerning oral contact, however, did not apply to the assault statute. The 1920 law concerning sodomy remained unchanged until it was revised and codified in Article 125 of the Uniform Code of Military Justice was adopted in 1951. This was done as part of a reorganization of the nations military and their laws. It stated that: "[a]ny person subject to this chapter who engages in unnatural carnal copulation with another person of the same or opposite sex or with an animal is guilty of sodomy. Penetration, however slight, is sufficient to complete the offence."4 The Manual for Courts- Martial in 1951 elaborated on Article 125 and provided the following: It is unnatural carnal copulation for a person to take into his or her mouth or anus the sexual organ of another person or of an animal; or to place his or her sexual organ in the mouth or anus of another person or of an animal; or to have carnal copulation in any opening of the body, except the sexual parts, with another person; or to have carnal copulation in any opening of the body of an animal.5 Article 134 of the Uniform Code of Military Justice concerns assault with intent to commit sodomy. Articles 125 and 134 have remained substantially unchanged since 1951; alterations in the maximum punishments allowed have been the only major changes. As of 1992, the maximum penalty for sodomy without aggravating factors was up to five years imprisonment and hard labor.6 At least recently, courts-martial concerning sodomy usually involve only cases in which there are "aggravating factors such as assaultive conduct, coercion, involvement of a minor, or abuse of rank."7 The maximum punishment in sodomy cases with aggravating circumstances is 20 years imprisonment and hard labor. The Uniform Code of Military Justice continues to technically apply, though rarely enforced, to military retirees; hence they are still subject to Article 125 and Article 134.8 B. Pre-Reagan Administrative Discharge The American Psychiatric Association in 1973 removed homosexuality from its list of psychiatric disorders, and the American Psychological Association and the American Public Health Association passed similar resolutions in 1975.9 Because before 1973 homosexuality was considered a psychiatric disorder that could be "treated" or "cured," the military's early policies were often rooted in this belief. Beginning in 1922, enlisted personnel in the Army10 who were charged with or suspected of homosexual acts were discharged under "Section VIII." The general heading for this discharge was "'inaptness or undesirable habits or traits of character.'"11 The specific traits or habits are not named and the discharges were most often honorable. In cases such as homosexuality or sexual perversion however, the Section VIII discharges were without honor. This new policy of targeting personnel with suspected homosexual conduct absent of proof can be traced to scandals such as the one that took place at the Naval Training Station in Newport, Rhode Island. In 1919 the Navy Department began to receive reports that a group of gay sailors who called themselves the "Ladies of Newport" were attending many of the social functions in area. In response an investigation was initiated by the Navy in which it recruited thirteen new enlistees to attend local bars and entrap gay sailors. Chief machinist's mate Ervin Arnold, who was placed in charge of the new recruits told his men: You people will be on the field of operation... You will have to use your judgment whether or not a full act [of sodomy] is completed. If that being the fact, it might lead to something greater. You have got to form that judgment at the time you are on the field with that party.12 As evidence of homosexual behavior was compiled the scope of the investigation was expanded to included many other bases on the Eastern seaboard. A prominent local civilian, Newport Episcopal priest Samuel N. Kent, was arrested and charged as a result of the Naval investigation. With the onset of a civilian trial the method of investigation, using young recruits to solicit homosexual advances, became public when two members of the Navy testified that Kent had performed sexual acts on them. This created an even larger scandal. The scandal resulted in the establishment of a court of inquiry and an investigation by the Senate Naval Affairs Subcommittee.13 Between 1945 and 1949 the official military policy concerning gay men and lesbians changed three times. On January 12, 1950, the newly created Department of Defense issued Army Regulation 600-443, "Personnel; Separation of Homosexuals." This new regulation divided homosexuals into three classes. Class I homosexuals were defined as personnel engaging in activates involving "assault or coercion as characterized by force, fraud, intimidation, or the seduction of a minor (regardless of the minor's cooperation)."14 Personnel in this class were required to face a general court-martial. Class II homosexuals were personnel "who either engaged in or attempted to engage in homosexual acts."15 Enlisted personnel in this class could accept a dishonorable discharge and officers could submit a letter of resignation in lieu of general court-martial. Class III homosexuals were those "who exhibited, professed, or admitted homosexual tendencies, but who had not committed any provable acts or offences... [and] also included personnel who committed homosexual acts outside military jurisdiction."16 Personnel in Class III were given either a general or an honorable discharge. The regulation was liberalized in 1955 and 1958, providing greater opportunity for Class II and III homosexuals to receive honorable or general discharges. A psychiatric examination was required in the Army after 1966, prior to separation for homosexuality from the armed forces.17 C. Pre-Reagan Constitutional Challenges In 1970, the Army regulation concerning homosexuality was integrated into the regulations for standard unfitness and unsuitability discharges. The whole range of unsuitability and unfitness regulations in 1972 became chapters 13 and 14 of Army Regulation 635-200. This change was important because separation boards convened under Army Regulation 635-200 could recommend retention of personnel and commanders were allowed to reverse a decision made by a separation board. This created a loophole for some gay and lesbian personnel. The Army's official policy in litigation, in fact, was that it maintained discretion to retain gay men and lesbians until February of 1978. The Navy and Air Force did not have such exceptions stated their regulations; but in the course of litigation in 1974 the Navy claimed that its policy was not mandatory.18 The frequency or use of such discretion is not documented. The first challenges to the constitutionality of the military regulations came in 1973; before 1973 the court challenges raised procedural and administrative questions in reference to dismissals. This is the same year that the Supreme Court in upheld the right of women to have abortions on demand in their first trimester of pregnancy in Roe v. Wade;19 in doing this the court expanded the privacy doctrine.20 The first of a series of decisions in the 1970's was Doe v. Chafee;21 in which a federal district court applied the "rational-nexus" test to a military discharge proceeding.22 This is the same test that the federal government had failed when it was required by the court to prove that gay and lesbian civil servants were not good employees. Several other cases followed the Doe decision. In 1974, Leonard Matlovich, a noncommissioned Air Force officer and decorated Vietnam veteran, "came out" to his superiors. In 1977, Vernon "Copy" Berg, an Annapolis graduate and ensign in the Navy, "came out" to his superiors. Both were discharged from the military and lost their constitutional challenges in the U.S. District Court for the District of Columbia. On appeal their cases were combined by the appellate court. The court remanded the case back to the district court, demanding that the Navy and Air Force give a reasoned explanation why Berg and Matlovich did not receive exemptions. The appeals court did, though, uphold the military's right to discharge gay men and lesbians. A federal district court in Saal v. Middendorf23 ruled unconstitutional the Navy's policy because it presumed that gay men and lesbians were unfit per se. The judge was not convinced that the Navy policy was not, mandatory as it claimed. This did not mean that the Navy could not discharge gay men and lesbians, but "individual service men and women had a due process right to be judged on their individual merits and to be free of a policy of mandatory dismissal."24 On the Navy’s appeal the Saal case was combined with Beller v. Middendorf25 and Miller v. Rumsfeld.26 The U.S. Court of Appeals for the Ninth Circuit in its decision reversed the district court ruling in Saal and affirmed the decisions for the military in the Beller case. At about the same time the Department of Defense issued its new directives 1332.14 and 1332.20 and Berg and Matlovich reached out-of-court settlements with their respective services.27 The case of Miriam Ben-Shalom began in 1976 when she was discharged from the Army Reserves because she is a lesbian. Her sexual orientation was known by her commander and was ignored until she announced it to the press upon her graduation from drill instructor school. Her court case would last 15 years. In 1980, a federal district court ordered the Army to reinstate Ben-Shalom because it had violated her First Amendment rights. The Army's response to this shocked many in the legal community; they ignored the court order and refused to reinstate Ben-Shalom. Their official explanation several years later was to claim they did not understand the court order. After a period of over two years, Ben-Shalom filled a contempt suit against to Army to force them to reinstate her into the reserves. The Army in response re-filed its appeal that it had withdrawn in 1980. In 1987 the U. S. Court of Appeals for the Seventh Circuit, in Chicago, upheld the lower court's order and tersely addressed the Army's claim that it did not know how to interpret the district court's order. We are baffled by the Secretary's [of the Army] asserted confusion over the word "reinstatement" in the 1980 order. The district court specifically ordered that the Army "reinstate [Ben-Shalom] as a member of the Army Reserves with all duties, responsibilities and privileges earned prior to her discharge." The order could hardly be clearer.28 The Army Reserves only relented and reinstated Ben-Shalom when threatened with a $500-a-day fine for contempt of court. In 1988, The appeals court, sitting en banc, after a full hearing ruled that the Army Reserves did not violate Ben-Shalom's First Amendment right when they dismissed her; Ben-Shalom appealed to the Supreme Court. On February 26, 1990, the Supreme Court denied cert.29 II. Department of Defense Directives 1332.14 and 1332.20 Department of Defense Directives 1332.14 and 1332.20 provided the basis for most of the dismissals of gay and lesbian service members from their inception in the early 1980s until January 29, 1993. The enforcement of these directives has also been questioned; civil rights activists have felt that false accusations have been made and enforced in the fashion of a "witch hunt." In addition, these directives have come under fire because much of the rationale for their existence has been contradicted by historical facts and governmental reports. A. Directives 1332.14 and 1332.20 Department of Defense Directive 1332.14 (DOD 1332.14) concerns the administrative discharge of gay and lesbian enlisted personnel; it was issued on January 28, 1982. Department of Defense Directive 1332.20 (DOD 1332.20) is essentially the same as DOD 1332.14 except that it relates to officers. The military’s stated purpose for these directives is as follows: Homosexuality is incompatible with military service. The presence in the military environment of persons who engage in homosexual conduct or who, by their statements, demonstrate a propensity to engage in homosexual conduct, seriously impairs the accomplishment of the military mission. The presence of such members adversely affects the ability of the Military Services to maintain discipline, good order, and morale; to foster mutual trust and confidence among service members, to ensure integrity of the system of rank and command; to facilitate assignment and worldwide deployment of service members who frequently must live and work under close conditions affording minimal privacy; to recruit and retain members of the Military Services; to maintain the public acceptability of military service; and prevent breaches of security.30 In the same directive, DOD 1332.14, the military provides its definition of a homosexual, a bisexual, and a homosexual act: (1) Homosexual means a person, regardless of sex, who engages in, desires to engage in, or intends to engage in homosexual acts; (2) Bisexual means a person who engages in, desires to engage in, or intends to engage in homosexual and bisexual acts; and (3) A homosexual act means bodily contact, actively undertaken or passively permitted, between members of the same sex for the purpose of satisfying sexual desires.31 In addition DOD 1332.14 provides a few exceptions to this rule. If all the requirements are met, the service can retain a member if: (a) Such conduct is a departure from the member's usual and customary behavior; (b) Such conduct under all circumstances is unlikely to recur; (c) Such conduct was not accomplished by the use of force, coercion, or intimidation by the member during military service; (d) Under the particular circumstances of the case, the member's continued presence in the service is consistent with the interest of the Service in proper discipline, good order, and morale; and (e) The member does not desire to engage or intend to engage in homosexual acts.32 Once a person has been identified as gay or lesbian under DOD 1332.14 and 1332.20 there are a few courses of action for the military. There are three types of discharge for service members: honorable discharge, general discharge, and discharge under other then honorable conditions (generally known as a "dishonorable discharge"). An honorable discharge is appropriate "'when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for military personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.'"33 A general discharge is awarded when "the member's service 'has been honest and faithful, but 'significant negative aspects of the member's conduct or performance of duty outweigh positive aspects of the member's military record.'"34 A discharge under other then honorable circumstances will be issued when "separation is based upon one or more acts or omissions or upon a pattern of behavior that 'constitutes a significant departure from the conduct expected of members of the Military Services.'"35 Under DOD 1332.14 and DOD 1332.20, a gay or lesbian service member could not be given an other-then honorable discharge unless fraudulent enlistment or aggravating factors are found. The significance of a discharge other than fully honorable on an ex-soldiers’ life can depend on their after- service employment plans. A less than honorable discharge can make finding employment more difficult, especially if a security clearance is required. Some state and federal employment opportunities require a fully honorable discharge. To receive an other than honorable discharge can carry many adverse consequences. Beside the problems of seeking after service employment, recipients will be barred from buried in a national cemetery or from retaining service bars, medals and ribbons. After-service benefits such as medical treatment and educational or scholarship benefits are withheld. B. Enforcement of DOD 1332.14 and 1332.20 Few people would claim that any branch of the military is effective in discharging all or stopping enlistment of gay men and lesbians; the military itself does not claim that its policies are that effective. What DOD 1332.14 and DOD 1332.20 were effective in doing was to keep the majority of gay men and lesbians “in the closet." Statistics in fact show that nearly 80 percent of gay men and lesbians who serve in the military complete their tours without detection. In addition, the study has shown that gay men are just as likely as non-gay men to enlist and lesbians are even more likely to enlist than are heterosexual females.36 Historical records of discharge rates do not exist. The Army, for example, did not keep records of the discharge of gay men and lesbians until mid-1960s. Studies published in 1971 by Williams and Weinberg suggests that between the end of World War II and the mid-fifties about 2,000 people per year or one out of every 1,500 (0.066%) service members, were discharged for homosexuality. The same study suggests, from the mid-fifties through the sixties that between 2,000 and 3,000 service members per year were discharged for homosexuality.37 More recent figures for 1985 through 1989 show that 6,670 enlisted personnel and 102 officers were discharged for homosexuality. This statistically, is a lower rate of discharge then in the 1960s; the statistics are deceptive, though, because they do not reflect every person to be discharged for homosexuality. Many gay men and lesbians submit resignations and "voluntarily" leave the military to avoid discharge proceedings, these members are often not represented in these figures. Statistics have also shown that not all services treat men and women similarly because women are more likely to be discharged in some branches of the service. This reflects the general antagonism felt by many women from some of their male counterparts who feel that women do not belong in the military; this belief is particularly strong in the Navy and Marine Corps. This antagonism can be intensified if a female service member is unmarried or refuses to consent to sexual relations with male co-workers. The presence of these two extenuating factors can and does often result in accusations of homosexuality. In addition, minorities discharged for homosexuality are less likely to receive honorable discharges.38 III. Existence and Causes of Homosexuality Alfred C. Kinsey first published Sexual Behavior in the Human Male on January 5, 1948. In this work Kinsey studied the sexual behavior of 5,300 men. This was one of the first modern studies of sexual behavior. More recently researchers and scientists have concentrated on searching for genetic or physical factors that could "cause" homosexuality. A. The Kinsey Reports The Kinsey reports are actually two separate reports, one published in 1948 the other in 1953. The first published was Sexual Behavior of the Human Male; written by Alfred C. Kinsey, Wardell B. Pomeroy and Clyde E. Martin of Indiana University. The second, Sexual Behavior in the Human Female, was written by the Staff of the Institute for Sex Research at Indiana University under Kinsey's direction. These reports, when published and more recently, are criticized for their content and their statistical validity has been questioned for. Even with these criticisms the reports and the Institute have remained the preeminent sources for insight into human sexual behavior. Sexual Behavior in the Human Male is the published findings of the sexual behavior 5,300 Caucasian males, predominantly from the northeastern United States. The report includes statistics on most most aspects of sexuality, including incidence of heterosexuality, homosexuality, asexuality, and bestiality in men from adolescence to old age; we will look only at the incidence of homosexuality and homosexual acts or desires. One of the problems of studying the incidence of gay men or gay sexual acts or desires is trying to define what constitutes such. To do this, Kinsey created a seven-point scale ranging from 0 through 6. Both on psychologic reactions and overt experience, individuals rate as follows: 0. Exclusively heterosexual with no homosexual 1. Predominantly heterosexual, only incidentally homosexual 2. Predominantly heterosexual, but more than incidentally homosexual 3. Equally heterosexual and homosexual 4. Predominantly homosexual, but more than incidentally heterosexual 5. Predominantly homosexual, but incidentally heterosexual 6. Exclusively homosexual with no heterosexual39 Kinsey found a much greater incidence of homosexuality and homosexual experience then was previously thought or admitted to exist. According to the Kinsey data "37% of the total male population has at least some overt homosexual experience to the point of orgasm between adolescence and old age."40 It was also found that 13% "of all males (approximately) react erotically to other males without having overt homosexual contacts after the onset of adolescence."41 When these two figures are combined it equals 50% hence, 50% of the male population has either had a overt homosexual experience or has reacted erotically to other men. This 50% of the male population could have been excluded from serving in the United States Military under DOD 1332.14 and DOD 1332.30, depending on the interpretation. Additional findings of the Kinsey report are that: 30 per cent of males have at least incidental homosexual experience or reactions (i.e., rate 1 to 6) over at least a three-year period between the ages of 16 and 55... 25 per cent of the male population has more more than incidental homosexual experience or reactions (i.e., rates 2-6) for at least three years between the ages of 16 and 55... 18 per cent of the males have at least as much of the homosexual as the heterosexual in their histories (i.e., rate 3-6) for at least three years between the ages of 16 and 55... 13 per cent of the population has more of the homosexual than the heterosexual (i.e., rates 4-6) for at least three years between the ages of 16 and 55... 10 per cent of the males are more or less exclusively homosexual (i.e., rate 5 or 6) for at least three years between the ages of 16 and 55... 8 per cent of the males are exclusively homosexual (i.e., rate 6) for at least three years between the ages of 16 and 55. 4 per cent of the white males are exclusively homosexual throughout their lives, after the onset of adolescence.42 If the first Kinsey Report is correct, in order for the DOD directives not to be enforced in a random and capricious manner at least 30% of the male population could not serve in the military. In 1953, Kinsey's Institute for Sex Research at Indiana University published Sexual Behavior in the Human Female. The report was based on the interview responses of 5,940 white females and other outside information. The findings were similar to those in Sexual Behavior in the Human Male, but the incidence of homosexual contact was lower. The definition of homosexuality used for women was the same as used previously for men. The study found that cumulative incidences, category 1-6, of homosexual responses reached 28% in females; while only 13% had had overt contact to the point of orgasm. In addition, fewer females had prolonged homosexual contacts than was found in the study of men.43 Only about 1-3% of women were exclusively lesbians throughout their lives.44 B. The Causes of Homosexuality Attempts by geneticists and other scientists to determine what causes homosexuality in some men and women is met with skepticism from many in the scientific community. Regardless of this skepticism, many continue to pursue such research with varying results and goals. Some studies have identified genetic similarities between men with similar sexual orientations and some studies have identified fetal factors with links to sexual orientation. In a recent study of 76 self-acknowledged gay men and 26 families of gay men, a high correlation of men with similar sexual orientation is found between brothers and relatives on the maternal side. In this sample gay men are more then six times as likely to have a gay brother than a heterosexual man. A gay man is over three time more likely to have a gay maternal uncle than a heterosexual man, but a gay man is not more more likely to have a gay paternal uncle. A gay man is also almost four times as likely to have a gay maternal cousin, aunt's son, than a heterosexual man. If the gay man has a gay brother the percentages increase that he will have a gay maternal uncle and maternal cousin, aunt's son. This high correlation is strong evidence that there may be some genetic trait passed to gay men through the maternal side of their families.45 This is indicated by the higher percentage of gay relatives on the maternal side then in the general population or on the paternal side. With this background, the researchers in this study were able to find an X chromosome linkage in chromosomal region Xq28. While this is only a preliminary study its findings are cause for an expanded study.46 Other studies have linked increased incidence of gay sons to mothers who suffered severe stress during pregnancy. It is believed that higher adrenalin levels in the mother, which are caused by stress, lower testosterone levels in the male fetus. Testosterone is, they believe, linked to sexual orientation. In addition, some have linked alcohol, marijuana, and barbiturate use by pregnant mothers to an increased probability of gay offspring; this is because these substances "block masculinization of the nervous system during neuro-organization."47 The use of diethylstilbesterol, a synthetic estrogen used to reduce the risk of miscarriage, by pregnant women is linked with increased incidence of lesbian daughters. This research has enabled scientists to breed animals in laboratories with a higher rate of homosexual orientation.48 What is important to note, though, is that all of this research is preliminary and very few in the scientific community believe that there is one trigger to sexual orientation, but that sexual orientation is caused by a multiple number of factors. This type of research has become very controversial in both the scientific, gay and lesbian communities especially with the onset of increased manipulation of fetal genetic tissue. The thought of screening or manipulating fetal genetic tissue to create a child with a desired sexual orientation or abort a child because he or she may be predisposed to an unwanted sexual orientation raises numerous ethical issues. This is especially true in a country with no national standards on genetic manipulation. In addition, many in the gay and lesbian communities believe that they are how they are and that to try to determine why might mark the return to the medical belief that they can or should be "cured" of their "deviant" behavior" Conclusion As history shows the societal and military prejudice against people with a non-heterosexual orientation is long standing in the United States. This prejudice is manifested in Article 125 of the Uniform Code of Military justice, Department of Defense Directives 1332.14 and 1332.20 and their predecessors. The presence of scientific data that refutes the claims by many in military and society in general that homosexuality is a chosen trait by a few remains unheeded. Evidence of this prejudice in the military and society is well shown in the hostile environment in which gay and lesbian civil rights litigation currently exists. Chapter Two Bowers v. Hardwick and Watkins v. United States Army Introduction When the United States Supreme Court handed down its decision in the case of Bowers v. Hardwick49 in 1986 it delivered a large setback to many in the gay and lesbian rights movements. While this case only passed judgment on the constitutionality of sodomy laws, it has provided ammunition for many who discriminate against or fight to limit the rights of gay men and lesbians. It also provided many in the judiciary who are opposed to gay and lesbian- rights, be it personally or judicially, a constitutional decision to hide behind. As a result the Courts ruling in Hardwick is important to any investigation into the legal struggle of gay men and lesbians. Three years later, the first major defeat given of the military's gay and lesbian exclusion policy was handed down by the Court of Appeals, and upheld by the Supreme Court, in the case of Perry Watkins. In a en banc decision, a panel in the Ninth Circuit estopped the Army from discharging an openly gay soldier. While the majority decision was made without addressing the constitutional issues of the military's gay and lesbian exclusion policy, it was the first time such a decision was handed down. In addition, it showed that homosexuals do have constitutional rights that are protected by the courts. This is important because many were concerned that the Hardwick decision would be interpreted to preclude homosexuals from redress in the courts on gay and lesbian issues. I. Bowers v. Hardwick 478 U.S. 186 (1985) In August 1982, Michael Hardwick was arrested and charged with violating a Georgia law50 which criminalizes the act of sodomy. Hardwick was arrested when the police were trying to serve him with an arrest warrant for failure to appear in court on a charge of drinking in public. The police went to Hardwick's house to serve the warrant and were let in by a roommate; they found Hardwick in his room having having sex with another man. The district attorney, after a preliminary hearing, decided not to pursue an indictment of Hardwick before a grand jury. Hardwick and his attorney, though, had already filed a suit claiming that the Georgia law pertaining to consensual sodomy was a violation of several of Hardwick's constitutionally protected rights. John and Mary Doe joined the suit; they were a married couple who wished to engage in heterosexual sodomy. The federal district court granted the states motion for dismissal on the grounds that Hardwick had failed to state a claim on which relief could be granted and John and Mary Doe had no proper standing. The ruling against Hardwick was reversed by a divided panel of the U.S. Court of Appeals for the Eleventh Circuit; the ruling against John and Mary Doe was affirmed. The appeals court ruled that the district court had erred in granting the state's motion for dismissal. It ruled that, Hardwick had proper standing because as a practicing homosexual he was in imminent danger of arrest under the statute. The appeals court went on to hold that the Georgia law violated the U.S. Constitution. The appeals court relied on the Supreme Court's decisions in Griswold v. Connecticut,51 Eisenstadt v. Baird,52 Stanley v. Georgia53 and Roe v. Wade54 when appeals court ruled that the Georgia law violated Hardwick's fundamental right to privacy. Bowers, the attorney general of Georgia, appealed this ruling to the United States Supreme Court; which reversed the appeals court's decision. A. Supreme Court's Decision in Hardwick On June 30, 1986, the Court delivered its decision in Bowers v. Hardwick, written by Justice Byron White. The first issue addressed by Justice White was the scope of the Court's decision. Though the Court in essence upheld the law against both consensual heterosexual and homosexual conduct, the Court stated the "issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy...."55 While Hardwick was arrested for violating the sodomy laws with another man, the Court is been criticized for viewing this purely as a concern of gay men. The thought that only gay men violate this law is at best naive, for many studies of sexual behavior between men and women show that contact between mouth and genitalia is common.56 The Court went on to identify the differences between the Hardwick case and such cases as Griswold v. Connecticut and Roe v. Wade, which they said dealt with the right to decide whether or not to bear children, not a fundamental right to engage in sexual activity. The Court went on to say that no "connection between family, marriage, or procreation on the one hand and homosexual activity on the other has been demonstrated by either the Court of Appeals or by respondent."57 In fact, there is no fundamental right to privacy stated in the Constitution; it is only interpreted from the Due Process Clause inherent in the Fifth and Fourteenth Amendments. Because of this, the Court must strive "to assure itself and the public that announcing rights not readily identifiable in the Constitution's text involves much more then the imposition of the Justices' own choice of values on the States...."58 Such implied rights that are considered fundamental liberties must be "'implicit in the concept of ordered liberty' such that 'neither liberty nor justice would exist if [they] were sacrificed.'"59 A different formulation for an implied fundamental right is "characterized as those liberties that are 'deeply rooted in this Nation's history and tradition.'"60 According to the Court, then, "neither of these formulations would extend a fundamental right to homosexuals to engage in acts of consensual sodomy."61 The Court majority pointed out that, at the time of the ratification of the Bill of Rights, sodomy was prohibited by the original thirteen colonies and common law. When the Fourteenth Amendment was passed in 1868, only 5 of the 37 states did not have sodomy laws on the books. In 1960, every state in the Union had criminal sodomy laws, and when this case was decided, the District of Columbia and 24 states still had criminal sodomy laws. "Against this background, to claim that a right to engage in such conduct is 'deeply rooted in this Nation's history and tradition' or 'implicit in the concept of ordered liberty' is, at best, facetious."62 The Court went on to dismiss Hardwick's reliance on Stanley v. Georgia. It noted that Stanley was a First Amendment case and emphasized that the decision was "firmly grounded" in the Constitution. The fact that consentaneous sodomy is a victimless crime does not afford it any protection either. Drug laws apply equally to people in their homes as they do on the street. The Court concluded that while there is not a fundamental constitutional right to engage in consensual homosexual sodomy, Georgia must show a rational basis for this law. This rational basis is found by the court in the "notions of morality" expressed by a majority of the electorate in Georgia and 25 other states.63 Chief Justice Warren Burger and Justice Lewis Powell both wrote concurring opinions in which they joined the Court's decision. In his concurrence, Chief Justice Burger stressed the historical background to sodomy laws, the moral aspect of the sodomy law and the states' legislative authority. Justice Powell found "no substantive right under the Due Process Clause such as that claimed by respondent Hardwick, and found to exist by the Court of Appeals."64 Justice Powell did express concern, however, about the implications of the law under the Eighth Amendment, prohibiting cruel and unusual punishment. A prison sentence, especially one of long duration, "would create a serious Eighth Amendment issue."65 B. Dissent of Justice Blackmun Justice Harry Blackmun in his dissent viewed Hardwick's claim not as a question of whether or not there is a fundamental right to engage in homosexual sodomy; "[r]ather, this case is about 'the most comprehensive of rights and the most valued by civilized men,' namely, 'the right to be left alone.'"66 In addition, just because the Georgia law is expressing a moral judgment that may be familiar, this familiarity is not a valid reason for upholding its constitutionality. Justice Blackmun, quoting the late Justice Holmes, stated that it is: revolting to have no better reason for a rule of law than that ... it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.67 Blackmun said further that the Court in its opinion had distorted the question presented by Hardwick. Blackmun first addressed the fact that the Court focused obsessively on homosexuality. The Georgia law supposedly prohibits both homosexual and heterosexual sodomy, yet the Court did not focus on the whole issue before it. In addition, Hardwick's standing for this case may significantly rest on the fact that Georgia only seemed to be willing to enforce this law against homosexuals. Second, Blackmun did not agree with the Court's refusal to consider whether the Georgia law violated the Eighth or Ninth Amendment or the Fourteenth Amendment's Equal Protection Clause. The fact that Hardwick did not raise these questions did not mean that they should not be addressed by the Court, because "'a complaint should not be dismissed merely because a plaintiff's allegations do not support the particular legal theory he advances...'"68 In part two of his dissent, Blackmun addressed the privacy issue raised by Hardwick. The justice identified two lines of reasoning taken by the Court in the past. First, certain personal decisions are just that and should be left to the individual to make. These decisions have, in the past, included the right to choose whether or not to bear children, because pregnancy affects one's life so dramatically and because sexual intimacy is so important to human life. The Court's ruling in in this case denied Hardwick that choice of intimate association with whom he chooses. Second, there are certain places in which the privacy interests are given without regard to the activities that might take place in them; one such place is the home. The Fourth Amendment gives special significance to the notion that "protecting the physical integrity of the home is more then merely a means of protecting specific activities that often take place there."69 It was in such protection of the home that Stanley v. Georgia was grounded, not the First Amendment. Blackmun concluded his dissent with an examination of the rational basis set forth by the state of Georgia and the Court. The Justice first addressed the State's claim that it was only protecting the health and general welfare of its citizens. As Justice Blackmun noted, the state had provided no evidence that the actions it was prohibiting have any detrimental effect on the persons engaged in this activity or on others. The second claim by the state and the Court was that the state was trying to maintain a decent society by prohibiting what has been condemned for hundreds if not thousands of years. Justice Blackmun responded by stating that traditional Judeo-Christian values do not provide adequate justification for law; for "[a] State can no more punish private behavior because of religious intolerance then it can punish such behavior because of racial animus."70 This, Justice Blackmun concluded, is what Georgia and the Court are doing because they "fail to see the difference between laws that protect public sensibilities and those that enforce private morality."71 Justice Blackmun was joined by Justice William Brennan, Justice Thurgood Marshall and Justice John Paul Stevens in this dissent. C. Dissent of Justice Stevens In a separate dissent, Justice Stevens focused on two questions: first, can Georgia prohibit sodomy against heterosexual couples; second, if not, can the state prohibit sodomy only against homosexuals? On the first question Justice Stevens made two points grounded in the Court's past decisions. First, the fact that the governing majority of a state traditionally views a particular act as immoral does not constitute a sufficient reason for upholding a law that prohibits that act. Second, married persons cannot be legislatively prohibited in their intimate practices even though they do not intend to produce offspring. This was the ruling in Griswold and was extended to unmarried couples in Carey72 and Eisenstadt. Justice Stevens' second question was thus: if the past rulings of the Court protect heterosexual couples from Georgia Code Ann. 16-6-2, which prohibits sodomy, can this law be selectively enforced against homosexuals? If the state wishes to apply this law selectively, then it has the burden of justifying its actions. There are only two possible answers. One response would be that homosexuals are not equal to heterosexuals in the eyes of the law and do not have the same interest as heterosexuals in deciding how to live their lives. This possibility is plainly unacceptable. The second justification would be that the state law is supported by a neutral and legitimate interest; neither the state nor the courts has provided such a justification.73 II. Watkins v. U.S. Army et al. 875 F.2d 699 (9th Cir. 1989) Sgt. Perry J. Watkins brought suit against the United States Army to estopp them from discharging him because of his self-admitted homosexuality. This case differs from many others because Watkins served for 14 years while being openly gay, including admitting that fact on his draft service enlistment form. The Army had on several occasions ignored his self-admitted homosexuality until 1981. In a series of cases in the Ninth Circuit, an en banc panel upheld the district court's original ruling that the Army was and could be estopped from dismissing Watkins. In addition, in a very interesting concurring opinion, by Judge William A. Norris she proposed to give gay men and lesbians the protection of "strict scrutiny." A. Historical Record of Watkins' Military Service and Lower Court Rulings In August of 1967, Watkins was drafted into the Army; he was 19 years old. At this time he marked "yes" on the Army's preinduction medical form in response to a question that asked if he had homosexual tendencies. Despite this admission and the regulations barring homosexuals from enlistment, he was marked "qualified for enlistment." In 1968, as part of a criminal investigation into sodomy charges, Watkins signed an affidavit stating that he had been gay since age 13 and that he had committed sodomy with two other service members since his enlistment. Even with this admission, the Army dropped its investigation due to lack of evidence. In 1970, when his first enlistment period ended, Watkins left the service and his reenlistment eligibility code was marked "unknown." A year later Watkins' requested his eligibility code to be corrected to read "eligible for reentry" which would allow him to reenlist. In 1971 Watkins' reenlistment code was revised to read "eligible for reentry." In 1972, Watkins' reenlisted for a second three year tour. That same year, security clearance was denied to Watkins because of his acknowledged homosexuality; at this time the Army again investigated Watkins for allegedly committing sodomy. The investigation as before was dropped due to lack of evidence. In 1975, Watkins reenlisted for a six-year term. That same year, a board of officers was convened by the Army to determine whether or not Watkins should be discharged for his homosexual tendencies. Based on testimony from Watkins' commanding officer and review of his service record, a four officer board unanimously recommended his retention "'because there is no evidence suggesting that his behavior has had either a degrading effect upon unit performance, morale, or discipline, or upon his own job performance.'"74 The Army accepted this recommendation, and in November of 1977 Watkins was given a security clearance for information classified as "Secret." On March 15, 1979, Watkins again in an interview acknowledged that he was gay. This resulted in the revocation of his security clearance in 1980. The Army attempted to discharge him, in accordance with Army regulation 635-200, in 1981 on a review board's recommendation; the board, however, rejected all evidence brought by the Army that Watkins had committed sodomy after 1968. In May of 1982, before Watkins' discharge was complete, U.S. District Judge Rothstein enjoined the Army from discharging Watkins. Judge Rothstein reasoned that the Army had placed Watkins in double jeopardy, barred by Army regulations, because of the 1975 discharge proceedings. In the process of oral argument before the district court, the Army stated that if it was enjoined from discharging Watkins it would refuse him reenlistment in 1982. On October 5, 1982, the district court enjoined the Army from refusing Watkins reenlistment because he admitted that he was gay. On November 1, 1982, the Army admitted Watkins with the proviso that if the Army won its appeal his reenlistment would be void. The Army won its appeal in 1983. A three judge appeals panel ruled that the "equity powers of the federal courts could not be exercised to order military officials to violate their own regulations absent a determination that the regulations were repugnant to the Constitution or the military's statutory authority."75 The case was remanded to the district court for argument on the issue of whether the Army's regulation that called for the dismissal of gay men and lesbians absent of criminal conduct was constitutional. The seconed district court, on remand, denied Watkins' motion for summary judgment76 and granted summary judgment to the Army. The court ruled that the Army's regulations were not repugnant to statutory authority or to the Constitution. Watkins appealed the seconed district court's ruling. A seconed three judge appeals panel, in a divided decision, reversed the seconed district court's 1988 ruling. The panel held that the Army's reenlistment regulations violate the constitutional guarantee of equal protection of the laws because they discriminate against persons of homosexual orientation and because the regulations are not necessary to promote a legitimate compelling governmental interest.77 The Army appealed the ruling the seconed three judge appeal panel to the full court of the 9th Circuit, which granted review.78 B. En Banc Decision in Watkins Arguments were held before the full court on October 12, 1988; the court gave its decision on May 3, 1989. The court found for Watkins and reversed the decision by the first appeals panel that had held that the court could not estop the Army from discharging Watkins. The court reached this conclusion without reviewing the constitutional issues raised in the second appeals panel. In reaching this decision the court had to answer three questions: does Watkins pass the test for the review of military policies and procedures, Mindes test, if it applies; does Watkins meet the standards for equitable estoppel79 against the government; and third, does Watkins case contain the traditional elements of estoppel.80 The Mindes test is a standard for review of military policies and procedures established in Mindes v. Seaman.81 The Fifth Circuit articulated this test for determining if a particular internal military decision should be reviewed. Mindes cautioned that a court should not review internal military affairs in the absence of (a) an allegation of the deprivation of a constitutional right or an allegation that the military has acted in violation of applicable statutes or its own regulations and (b) exhaustion of available intraservice corrective measures. If the plaintiff meets both prerequisites, the court must weigh several factors to determine whether to grant review. These factors are (1) the nature and strength of the plaintiff's claim; (2) the potential injury to the plaintiff if review is refused; (3) the extent of interference with military functions; and (4) the extent to which military discretion or expertise is involved.82 The court followed an earlier precedent set in Helm v. State of California83 that in cases of equitable estoppel the court does not have to apply the Mindes test. The doctrine of equitable estoppel addresses the same concerns set forth in the Mindes test; hence, the Mindes test must only be applied in cases involving a constitutional claim. This decision, by the full court, in the Watkins' case did not address the constitutional questions.84 The court found that Watkins satisfied the requirements for equitable estoppel against the government. The Supreme Court has established no set standard for the question of whether the federal government is or is not subject to estoppel. What the Court has established is that heightened deference must be given to the government and that it cannot be estopped on the same grounds as a private litigant. In this vacuum, the Ninth Circuit established its own standard for applying equitable estoppel to the government and to the military when the facts justify. Before the government will be estopped, however, two additional elements must be satisfied beyond those required for traditional estoppel. First, "[a] party seeking to raise estoppel against the government must establish 'affirmative misconduct going beyond mere negligence'; even then, 'estoppel will only apply where the government's wrongful act will cause serious injustice, and the public's interest will not suffer undue damage by imposition of the liability.'" Wagner v. Director, Federal Emergency Management Agency, 847 F.2d 515, 519 (9th Cir. 1988) (quoting Morgan v. Heckler, 779 F.2d 544, 545 (9th Cir. 1985)).85 On the question of affirmative misconduct there is no single test, hence each case must be viewed on the basis of its own particular facts. In all cases, though, affirmative concealment or affirmative misrepresentation of a material fact on the part of the government must be shown. In this case the military affirmatively misrepresented its official records, since for 14 years it marked Watkins qualified for reenlistment and indeed promoted Watkins, though he never hid the fact that he was gay. By doing this the Army violated its own rules. Second, the court states, the serious injustice of denying Watkins' estoppel outweighed any possibility of harm that might be levied against the Army or the public interest in this case. Watkins' service record clearly showed that Army had greatly benefited from his service. Watkins' service record also shows that the Army has in no way been damaged by Watkins' open homosexuality.86 After establishing that Watkins had passed the two elements required to sustain an estoppel claim against the government, the court turned to the traditional elements of estoppel. There are four traditional elements of estoppel: (1) The party to be estopped must know the facts; (2) he must intend that his conduct shall be acted on or must so act that the party asserting the estoppel has a right to believe it is so intended; (3) the latter must be ignorant of the true facts; and (4) he must rely on the former's conduct to his injury.87 There can be little argument that the Army did not know the facts: Watkins acknowledged that he was gay at induction, was denied a security clearance because he was gay, had a review board hearing that established that fact in 1975, was given a security clearance 1977 even though he acknowledged that he was gay, and twice was investigated for allegedly committing sodomy. Second, did Watkins have the right to believe that the Army actions, and not its written regulations, exhibited its real intentions? Yes, said the court: the fact that Watkins repeatedly acknowledged that he was gay and the Army repeatedly ignored or waived this admission for fourteen years established that Watkins could rely on the Army's actions, not their regulations. Third, was Watkins unaware of the true facts? Though the "true fact" is that the Army maintains that its policy against gay service members in non-waivable; the fact that it was repeatedly waived for Watkins means we cannot charge that Watkins had knowledge of this fact. Fourth, did Watkins rely on the Army's conduct concerning his admission that he was gay in a manner which caused him injury? Yes, the fact that the Army started litigation after 14 years and not sooner has harmed Watkins. This is because for 14 years Watkins sacrificed skills that would be necessary to reach the same position in civilian life for skills necessary to attain his position in the Army.88 C. Concurring Opinions Two concurring opinions were written, one by Circuit Judge Norris the second by Circuit Judge Canby. Judge Norris concurred only in the majority judgment, feeling that the court could not rely on equitable estoppel against the government to decide this case. Instead she established an equal protection argument barring the military from discriminating against gay and lesbian service members. The most interesting aspect of this decision is that Judge Norris found that gay men and lesbians are a suspect class entitled to strict scrutiny, the highest level of equal protection review. Judge Canby concurred with Judge Norris' opinion except that Judge Canby believed that equitable estoppel can also be levied against the government. After establishing that the Army does discriminate on the basis of sexual orientation, not sexual acts, Judge Norris addressed the Army's claim that Bowers v. Hardwick forecloses Watkins' equal protection claim. Judge Norris points out that in Hardwick the Court ruled that there is no constitutionally protected right of privacy that covers homosexual sodomy. The Court did not address an equal protection claim, only a substantive due process claim. In addition, "nothing in Hardwick suggests that the state may penalize gays merely for their sexual orientation."89 This is the same as Robinson v. California,90 in which the Supreme Court declared a California law that criminalized narcotics addiction unconstitutional, even though the State could criminalize narcotics. In essence the Army regulation in question here is prohibiting a state of mind, this is what the Court was declaring unconstitutional in Robinson. Watkins is a "orientation" case, not a "conduct" case.91 Judge Norris then established that no federal appellate court has decided whether or not people of homosexual orientation, such as Watkins, constitute a "suspect class." Judge Norris addressed the three factors established by the Court to consider whether a group constitutes a suspect class. The first factor is whether a group has suffered a history of purposeful discrimination. Judge Norris cites many cases establishing that gay men and lesbians have been the subject of purposeful discrimination, such as: Rowland v. Mad River Local School District,92 High Tech Gays v. Defense Industrial Security Clearance Office93 and Ben-Shalom v. Secretary of the Army.94 In addition, the Army in its own brief has conceded this point. In conclusion, this discrimination is no less then that received by other groups which have been extended this protection, such as people of a particular race or national origin and aliens. The second factor established by the Court is in reality a cluster of factors. The basic question is whether the discrimination is so grossly unfair that it is sufficiently inconsistent with the ideals of equal protection to be termed "invidious." In considering this question of gross unfairness, the Court has considered four things, the first three of which are: (1) whether the disadvantaged class is defined by a trait that "frequently bears no relation to ability to perform or contribute to society" (2) whether the class has been saddled with unique disabilities because of prejudice or inaccurate stereotypes; and (3) whether the trait defining the class is immutable.95 First, one's ability to perform is in no way related to one's sexual orientation this was clearly shown by Watkins service record. The Army itself had conceded that there was not a "scintilla" of evidence showing that Watkins' open sexual orientation has had any negative effect on his or his unit's performance.96 The fact that there was no evidence that Watkins' sexual orientation had had any effect on his or his unit's performance suggests that the Army's regulation is based on inaccurate stereotypes. Judge Norris agrees with Justice Brennan that "discrimination against homosexuals is 'likely ... to reflect deep-seated prejudice rather than ... rationality.'"97 The Army tries to justify this by claiming that they are not prejudiced but are only upholding a ban against people who society feels engage in immoral behavior plus those who engage in acts of sodomy in violation of the law. The Army, though, cannot seem to understand that this is a case concerning sexual orientation, not sexual acts. Sexual orientation has never been illegal, and any attempt to make it illegal would present grave constitutional problems. In addition, much of the sexual contact engaged in by gay men and lesbians is not considered by Army regulations to be illegal. Thus to claim that the only sexual gratification available to gay men and lesbians available is illegal is fictitious.98 Judge Norris continued, the third factor that has been set down by the Court is that the indicator of the trait is immutable. The immutability of homosexual orientation is as immutable as racial heritage. The causes of sexual orientation that differ form the "norm" are not fully understood. Scientific research does show that whatever the reason, we have little control over sexual orientation, and once acquired it is largely "impervious" to change. To attempt such a change would be an enormous and traumatic effort, if possible at all, be it from homosexual orientation to heterosexual orientation or from heterosexual orientation to homosexual orientation. While it is conceivable that one might be able to change sexual orientation with shock therapy, it is also conceivable you could change the physical characteristics that help define African Americans or Hispanics with skin pigmentation injections. These radical and traumatic processes though have never been considered viable solutions, by the courts, to racial discrimination.99 The final factor that needs to be considered in order to qualify a group for suspect classification, as established by the Supreme Court after the first three conditions have been met, is whether the group lacks the political power necessary to obtain relief. The very fact that homosexuals have historically been underrepresented in and victimized by political bodies is itself strong evidence that they lack the political power necessary to ensure fair treatment at the hands of government.100 In addition, when people "come out of the closet" and to try to effect a political change their efforts often result in failure, for they fall victim to the same discrimination they are trying to defeat. Heterosexual politicians find it hard to empathize with problems that affect the gay and lesbian communities. The fact that the Army claims that it must keep this ban to "maintain the public acceptability of military service"101 also lends credence to this theory of political isolation.102 After Judge Norris established that people of homosexual orientation constitute a suspect class, she set forth to determine whether the Army's ban against people with homosexual orientation is "'necessary to promote a compelling governmental interest.'"103 In addition, because this is a military regulation, more deferential treatment must be given than to comparable civilian governmental laws. Congress has outlawed only sodomy in its laws concerning the military, not sexual orientation. No evidence, from the debates on the military's criminal sodomy law, reflects an intent of such discrimination. Nor do any of the reasons put forth by the Army constitute compelling governmental interests; these reasons are in fact all too familiar to those used to separate African American solders from white solders in the past.104 Conclusion While Hardwick is not a case that involves the military directly its importance in gay and lesbian rights litigation involving the military is great. While its role can be seen in Watkins it plays a more prominent role the cases of Dusty Pruitt, Keith Meinhold and Joseph Steffan. In all of these case the constitutionality of the policy as a whole is under review. One of the main defences by the military is that it is only discharging personnel who have propensity violate the Article 125 which prohibits sodomy, which can be prohibited constitutionally. The case of Perry Watkins is important to future litigation in several aspects. The first, that it is one case that has been won by gay and lesbian rights activists at the expense of the military. More importantly the Watkins case established that gay men and lesbians have recourse against the military. Third, the military can be ordered by the courts reverse an order on constitutional grounds and be barred from repeating it. This is now well established with the affirmation of the 9th Circuits' ruling in this matter by the Supreme Court, which denied cert to the military's appeal. 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.105 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.106 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.107 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.108 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.109 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."110 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.111 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.112 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.113 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.'"114 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....'"115 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 judgment116 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."117 Pruitt filed an appeal; the appeals court delayed review until it issued its en banc decision in Watkins v. United States Army.118 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.119 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.120 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."121 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'"122 are sufficient to constitute an equal protection claim.123 The Army responded to this challenge by citing Beller v. Middendorf,124 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."125 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.126 Fourth, one of the justifications the Navy offered in Beller was the tension "between known homosexuals and other members who 'despise/detest homosexuality.'"127 Since that decision in 1980, the Supreme Court has handed down its decision in Palmore v. Sidoti,128 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."129 The Court, in 1985, in its ruling of City of Cleburne v. Cleburne Living Center, Inc. 130"made clear that this principle is not confined to instances of racial discrimination reviewed under strict scrutiny."131 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.132 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."133 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.134 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 Injunction135 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.136 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.137 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."138 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."139 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."140 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."141 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."142 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.143 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."144 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.]145 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.146 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.147 On July 20, 1989, District Judge Oliver Gasch refused the Navy's motion for dismissal.148 On November 15, 1989, Judge Gasch dismissed Steffan's suit for his failure to answer a question asked by the Navy during discovery.149 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."150 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.151 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.152 He found that the Navy and other Department of Defense regulations that ban homosexuality "establish classifications that rationally further legitimate state purposes."153 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."154 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."155 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. Zech156 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."157 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.158 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.159 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.160 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...'"161 In addition "[o]ur whole constitutional heritage rebels at the thought of giving government the power to control men's minds."162 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."163 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.164 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. 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.165 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.166 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.167 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.168 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.'"169 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.170 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 bases171 and the requirement that Air Force members must obtain command permission before they can circulate a petition on base.172 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.173 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."174 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. Conclusion From the Revolutionary War to the present day gay men, lesbians and bisexuals have been faced with a dilemma, if you wish to serve your country in the military you must hide from it who you really are. This has resulted in the creation of underground networks of gay service personnel on military bases, ships, and around the globe. It has also resulted in the harassment of gay, lesbian and bisexual service members that would not be tolerated if it were not for their prohibited sexual orientation. By maintaining this ban the military has lost many well trained and dedicated personnel. It is impossible to calculate the loss of this policy has had on the effectiveness of the armed forces, it has resulted though in shortages of needed military specialists. For example, in the late 1980s the Department of Defense discharged several Arabic linguists, the result was a shortage of Arab-speaking personal during the Gulf War. This resulted in the National Security Agency contacting some of the interpreters with gay related discharges to plead for their return.175 The financial cost to the military and the government is no easier to determine. In 1984 the General Accounting Office issued a report that it cost the Department of Defense $22.5 million in 1983, in lost training and recruitment expenses, to maintain its policy of separating gay men, lesbians and bisexuals. This was achieved by multiplying the cost of training a soldier for their first duty station by the number of gay and lesbian related discharges. The Army for example claimed that it cost $12,299 to train a solder.176 What this does not represent is that most gay and lesbian related discharges are of service members who have served for more the a few years and those discharged with out being labeled "gay related." A 1988 Defense Personal Security Research Education Center Report found that the average length of service of a gay or lesbian service member before discharge for homosexuality from 1974 through 1983 was 5.6 years.177 This means most service members discharged have completed more then basic training. For example, the cost of training one military pilot alone is in the millions and the cost of attending a service academy is $150,000. When the Armed Forces institutionalized its first sodomy law in 1917 and its first sexual orientation exclusion policy in 1922 the nation was not sympathetic towards or even aware of homosexuality. The idea of men loving men and women loving women was not something discussed in "polite" society, homosexuality was a disease. Since that time much in society and the Armed Services has changed, homosexuality has come out of the closet and is entering the main stream of society. Gay men, lesbians and bisexuals have become more open about their sexuality to society and those around them. It is with this new openness that the demand for gay, lesbian and bisexual civil rights has become heard. Just as in every other aspect of society gay men, lesbians and bisexuals in the military want and deserve their civil rights. This means the ability to serve openly with out the fear of dismissal and prejudice because of who they love. One of the main battle grounds in the fight to end this discrimination felt by service personnel has and will continue to be the courts of this nation. From the first round of cases raised by people such as Leonard Matlovich and Copy Berg the military has been fighting a battle that it knows it will loose. Top military men and lawyers have conceded since the beginning that their policies are flawed and that they will loose the battle in court, and that one day gay men, lesbian and bisexuals will serve openly in the military. In addition, many privately do not object to this inevitability.178 Regardless of this private belief they continue to tote the military line, in public, that open homosexuality is incompatible with military service. Table One Discharge rates for the United States Army, Navy, Marine Corps and Air Force for fiscal years 1985 to 1987. Army Navy Marine Air Corps Force Enlisted 829 or 1825 or 213 or 644 or Males .05% .13% .04% .043% Enlisted 354 or 382 or 90 or 220 or Females .17% .27% .33% .1% Male 11 or 30 or 6 or 41 or Officers .004% .02% .01% .01% Female 3 or 4 or 0 7 or Officers .007% .02% .02% Total 1197 2241 309 912 Source: T. Sarbin & K. Karols, Nonconforming Sexual Orientations and Military Suitability 8-9 (1988) (draft study of the Defense Personnel Security Research and Education Center), quoted in Major Jeffrey S. Davis, "Military Policy Toward Homosexuals: Scientific, Historical, and Legal Perspectives," Military Law Review 131 (Winter 1992): 66. Table Two Relationship Homosexual / Percent Total Random probands (n = 76) Father 0/76 0 Son 0/6 0 Brother 14/104 13.5 Maternal 7/96 7.3 uncle Paternal 2/119 1.7 uncle Maternal 4/52 7.7 cousin, aunt's son Maternal 2/51 3.9 cousin, uncle's son Paternal 3/84 3.6 cousin, aunt's son Paternal 3/56 5.4 cousin, uncle's son Sib-pair probands (n = 38) Maternal 6/58 10.3 uncle Paternal 1/66 1.5 uncle Maternal 8/62 12.9 cousin, aunt's son Maternal 0/43 0 cousin, uncle's son Paternal 0/69 0 cousin, aunt's son Paternal 5/93 5.4 cousin, uncle's son Population frequency Uncles and 14/717 2.0 cousins of female probands The low population frequency (2.0%) is likely due to the "more stringent definition [of homosexuality] applied here, it was considered more accurate [then other definitions of homosexuality] for this analysis..." Source: Dean H. Hamer, Stella Hu, Victoria l. Magnuson, Han Hu, Angela M. L. Pattatucci. "A Linkage Between DNA Markers on the X Chromosome and Male Sexual Orientation." Science 16 (July 1993): 322. Cases Cited Able v. United States, U.S. District Court, E.D. New York No. CV 94-0974, April 4. Westlaw, WL112117. Beller v. Middendorf, 4 Mil. L Rep (Pub. L. Educ. Inst.) 2218 ( 1976 N.D. Cal.) Beller v. Middendorf, 632 F.2d 788 (9th Cir. 1980) Beller v. Middendorf, 452 U.S. 905 (1981), cert. denied Ben-Shalom v. Secretary of the Army, 703 F. Supp. 1372 (1989) Bowers v. Hardwick, 478 U.S. 186 (1985) Bramlet v. Wilson, 495 F.2d 714 (8th Cir. 1974) Carey v. Population Services International, 431 U.S. 678 (1977) City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985) Conley v. Gibson, 355 U.S. 41 (1957) Doe v. Chafee, 355 F. Supp. 112 (N.D. Cal. 1973) Dronenberg v. Zech, 741 F.2d 1388 (D.C. Cir. 1984) Eisenstadt v. Baird, 405 U.S. 438 (1972) Griswold v. Connecticut, 381 U.S. 479 (1965) Helm v. State of California, 722 F.2d 507 (9th Cir. 1983) High Tech Gays v. Defense Industrial Security Clearance Office, 688 F. Supp 1361 (1987) High Tech Gays v. Defense Industrial Security Clearance Office, 895 F.2d 563 (9th Cir. 1990) Jacobson v. United States, 112 S.Ct 1535 (1992) Meinhold v. Department of Defense et al., 808 F. Supp. 1453 (S. Dist. Ca. 1992) Meinhold v. Department of Defense et al., 808 F. Supp. 1455 (S. Dist. Ca. 1993) Miller v. Rumsfeld, 6 Mil. L. Rep (Pub. L. Educ. Inst.) 3001 (N.D. Cal. 1977) Miller v. Rumsfeld, 632 F.2d 788 (9th Cir. 1980) Miller v. Rumsfeld, 454 U.S. 855 (1981), cert. denied Mindes v. Seaman, 453 F.2d 197 (5th Cir. 1971) Palmore v. Sidoti, 466 U.S. 429 (1983) Paris Adult Theature I v. Slaton, 413 U.S. 49 (1973) Pruitt v. Cheney et al., 943 F.2d 989 (U.S. App. 9th Cir. 1991) Pruitt v. Cheney et al., 963 F.2d 1160 (U.S. App. 9th Cir. 1992) Robinson v. California, 370 U.S. 660 (1962 S.Ct 1417) Roe v. Wade, 410 U.S. 113 (1973) Rowland v. Mad River Local School District, 470 U.S. 1009 (1985) Saal v. Middendorf, 427 F. Supp. 192 (N.D. Cal. 1977) Stanley v. Georgia, 394 U.S. 557 (1969) Steffan v. Cheney, Civil Action No. 883669 (OG) (1991 U.S. Dist.) Steffan v. Cheney, 733 F. Supp. 115 (D.C. Cir. 1989) Steffan v. Cheney, 733 F. Supp. 121 (D.C. Cir 1989) Steffan v. Cheney, 920 F.2d 74 (U.S. App. D.C. 1990) Steffan v. Cheney, 780 F. Supp. 1 (D.C. Cir 1991) Steffan v. Aspin, U.S. Court of App. for the Dist. of Columbia No. 91-5409, 16 Nov 1993. Lexis, Mead Data Central, Inc., Lexis 29521. United States Department of Defense v. Meinhold, Supreme Court of the United States A-373, 29 Oct. 1993. Lexis, Mead Data Central, Inc., Lexis 6922. Watkins v. United States Army et al., 875 F.2d 699 (9th Cir. 1989) Bibliography "A Judicial Blow to the Military's Anti-Gay policies: Pruitt v. Cheney 943 F.2d 989 (9th Cir. 1991)," Harvard Civil Rights-Civil Liberties Law Review 27, (1992): 244-261. Davis, Major Jeffrey S., "Military Policy Toward Homosexuals: Scientific, Historical, and Legal Perspectives," Military Law Review 131, (Winter 1992): 55- 108. Editors of the Harvard Law Review, Sexual Orientation and the Law. Cambridge: Harvard University Press, 1989. Fein, Bruce. "Gays in the Military; Clinton is constitutionally bound to execute existing federal law, including the Uniform Code of Military Justice, which prohibits heterosexual or homosexual sodomy." The Recorder, 17 February 1993, 9. Goldman, T.R.. "Setting the Terms of the Military-Ban Debate: The Message is simple: gay rights are civil right. But selling the idea won't be easy." The Recorder, 9 February 1993, 1. Hunter, Dean H., Stella Hu, Victoria L. Magnuson, Nan Hu, Angela M.L. Pattatucci, "A Linkage Between DNA Markers on the X Chromosome and Male Sexual Orientation." Science 16 (July 1993): 321-327. Hunter, Nan D., "Life After Hardwick," Harvard Civil Rights- Civil Liberties Law Review 27, (1992): 531-554. Hunter, Nan D, Sherryl E. Michaelson, and Thomas B. Stoddard. Rights of Lesbians and Gay Men: The Basic ACLU Guide to Gay Persons Rights. 3d ed., Carbondale: Southern Illinois University Press, 1992. Meinhold v. Untied States Department of Defense et al., (U.S. S. Dist Ca.), 6 October 1992, No. CV 92-6044, Plaintiff's Opening Brief. Morgan, Ted. FDR A Biography. New York: Simon and Schuster, 1985. Phillips, Don. " Courts Traditionally Defer to Military; California Gay Ruling May Signal Judges' Growing Impatience." The Washington Post, 30 January 1993, A13. Pruitt v. Weinberger et al., (U.S. S. Dist. Ca.), 7 March 1988, No. CV 83-3025, Appellants' Opening Brief. Rivera, Rhonda R., "Queer Law: Sexual Orientation Law in the Mid-Eighties Part I," University of Dayton Law Review 10:3, (1985): 459-560. Rivera, Rhonda R., "Queer Law: Sexual Orientation Law in the Mid-Eighties Part II," University of Dayton Law Review 11:2, (1986): 275-398. Schmitt, Eric. "U.S. Opposes Court Interference in Gay Troop Ban," The New York Times, 5 March 1993, 14(A). Schroeder, Patricia. "Reshaping the Service; Face Facts: Gays and Lesbians Have Served With Distinction," The Connecticut Law Tribune, 22 February 1993, 19. Shilts, Randy. Conduct Unbecoming: Lesbians and Gays in the U.S. Military Vietnam to the Persian Gulf New York: St. Martin's Press, 1993. Steffan, Joseph. Honor Bound: A Gay American Fights for the Right to Serve His Country New York: Villard Books, 1992. Stoddard, Thomas B., "Lesbian and Gay Rights Litigation Before a Hostile Federal Judiciary: Extracting Benefit From Peril." Harvard Civil Rights-Civil Liberties Law Review 27, (1992): 555-573. Tuller, David. "Military's Ban on Gays Illegal, Judge Rules Decision in the Case of Moffitt Field Sailor." The San Francisco Chronicle, 29 January 1993, A1. Weinstein, Henry. "Judgement Calls: Ruling on Gays is in Keeping with Bold Stands," Los Angeles Times, 6 February 1993, 1(B). Wolinsky, Mark and Kenneth Sherrill, eds. Gay and the Military: Joseph Steffan versus the United States. Princeton: Princeton University Press, 1993. Zirin, James D.. "Is it a Gay Life in the U.S. Navy?," The New York Times, 9 February 1993, Features. _______________________________ Footnotes 1 Randy Shilts, Conduct Unbecoming: Lesbians and Gays in the U.S. Military Vietnam to the Persian Gulf (New York: St. Martin's Press, 1993), 11. 2 Major Jeffrey S. Davis, "Military Policy Toward Homosexuals: Scientific, Historical, and Legal Perspectives," Military Law Review 131 (Winter 1992): 72. 3 Manual for Court-Martial, United States, 1917, para. 443; quoted in Major Davis, 73. 4 Uniform Code of Military Justice art. 125 (1951); quoted in Major Davis, 73. 5 Manual for Courts-Martial, United States, 1951, para. 204; quoted in Major Davis, 73. 6 Nan D. Hunter, Sherryl E. Michaelson, and Thomas B. Stoddard, The Rights of Lesbians and Gay Men: The Basic ACLU Guide to Gay Persons Rights, 3d ed., (Carbondale: Southern Illinois University Press, 1992), 38. 7 Major Davis, 74. 8 Hunter, Michaelson, and Stoddard, 38. 9 The Editors of the Harvard Law Review, Sexual Orientation and the Law (Cambridge: Harvard University Press, 1989), note 44, 6. 10 While each branch of the service has their own regulations concerning discharge of gay men and lesbians they are substantively similar because all are based on the same Department of Defence Directives. While they are not completely interchangeable an understanding of one will provide a substantial understanding of the other(s). 11 Major Davis, 74. 12 Ted Morgan, FDR A Biography (New York: Simon and Schuster, 1985), 235. 13 Ibid., 235-245. 14 Ibid., 76. 15 Ibid. 16 Ibid. To be “out side military jurisdiction” is a place were common or local law is most often appled; such as during shore leave or furlow. 17 Ibid. 18 Ibid., 76-77. 19 410 U.S. 113 (1973). 20 This is also an important case for in the formulations of legal arguments against sodomy laws. This will be more fully discused later in Chapter Two. 21 355 F. Supp. 112 (N.D. Cal 1973). 22 The rational nexus test of Norton v. Macy, 417 F.2d 1161 (D.C. Cir. 1969), requires that their be a rational basis for the discharge of a homosexual civil service employee. 23 427 F. Supp. 192 (N.D. Cal. 1977) 24 Rhonda R. Rivera, "Queer Law: Sexual Orientation Law in the Mid-Eighties Part II," University of Dayton Law Review, n.s. 11:2 (1986) 290. 25 4 Mil. L. Rep (Pub. L. Educ. Inst.) 2218 (N.D. Cal. 1976), aff'd, 632 F.2d 788 (9th Cir. 1980), cert. denied, 452 U.S. 905 (1981). 26 6 Mil. L. Rep. (Pub. L. Educ. Inst.) 3001 (N.D. Cal. 1977), aff'd, 632 F.2d 788 (9th Cir. 1980), cert. denied, 454 U.S. 855 (1981). 27 Ibid., 288-291. 28 Shilts, 642. 29 If one wishes to have their case reviewed by the U.S. Supreme Court you petition the Court for certiorari, ie. you ask them to grant a review of your case. If you are granted review it is called "granting cert" if your petition is denied it is termed "cert denied." "Cert" is simply a shortened version of word "certiorari." 30 Department of Defence Directive 1332.14 31 Ibid. 32 Ibid. 33 Hunter, Michaelson, and Stoddard, 39. 34 Ibid. 35 Ibid. 36 Defense Personal Security Research Education Center Report No. PERS-TR-89-002, Dec. 1988; cited in Hunter, Michaelson, and Stoddard, 41. 37 Major Davis, 66. 38 Hunter, Michaelson, and Stoddard, 41; See Table One for more complete figures. 39 Alferd C. Kinsey, Wardell B. Pomeroy, Clyde E. Martin, Sexual Behavior in the Male Human, (Philadelphia: W.B. Saunders Company, 1948), 638. 40 Ibid., 650. (emphasis omitted) 41 Ibid. (emphasis omitted) 42 Ibid., 650-651. (emphasis omitted) See appendix C for a complete table. 43 Staff of the Institute for Sex Research, Indiana University, Sexual Behavior in the Human Female (Philadelphia: W.B. Saunders Company, 1953), 475. 44 Ibid., 488. 45 Dean H. Hamer, Stella Hu, Victoria L. Magnuson, Han Hu, Angela M. L. Pattatucci. "A Linkage Between DNA Markers on the X Chromosome and Male Sexual Orientation." Science 16 (July 1993): 322; for a complete results see Table Two. 46 Ibid., 326. 47 Major Davis, 60. 48 Ibid., 60-61. 49 478 U.S. 186 (1985). 50 Georgia Code Ann. 16-6-2 (1984) reads in part as follows: "(a) A person commits the offense of sodomy when he performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another.... "(b) A person convicted of the offense of sodomy shall be punished by imprisonment for not less then one nor more then 20 years...." 51 381 U.S. 479 (1965). The Court ruled that use of birth control by married couples is protected by a fundamental right of privacy. 52 405 U.S. 438 (1972). The Court ruled that the use of contraceptives by unmarried couples was included in the scope of fundamental privacy. 53 394 U.S. 557 (1969). The Court overturned a Georgia law that prohibited the possession of "obscene" materials in the privacy of one's own house on First and Fourteenth Amendment grounds. 54 410 U.S. 113 (1973). The Court ruled that the Constitution protected the right of women to have an abortion on demand in the first trimester, as part of the fundamental privacy doctrine. 55 Bowers v. Hardwick, 478 U.S. 186, 190 (1985). 56 See Kinsey, p. 369, and Institute for Sex Research, p. 267. 57 Bowers, 191. 58 Ibid. 59 Ibid., 191-192; quoting Palko v. Connecticut 302 U.S. 319, 325, 326 (1937). 60 Bowers, 192; quoting Moore v. East Cleveland 431 U.S. 494, 503 (1977). 61 Bowers, 192. 62 Ibid., 194. 63 Bowers, 195-196. 64 Bowers v. Hardwick, 478 U.S. 186, 197 (1985) (Powell, J., concurring). 65 Ibid. 66 Bowers v. Hardwick, 478 U.S. 186, 199 (1985) (Blackmun, J., dissenting). 67 Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 469 (1897), quoted in Bowers, 199 (Blackmun, J., dissenting). 68 Bowers, 199 (Blackmun, J., dissenting), quoting Bramlet v. Wilson, 495 F. 2d 714, 716 (CA8 1974). 69 Ibid., 206. 70 Bowers, 211-212. 71 Ibid., 212. 72 Carey v. Population Services International, 431 U.S. 678 (1977). 73 Bowers v. Hardwick, 478 U.S. 186, 214-220 (1985) (Stevens, J., dissenting). 74 Watkins v. U.S. Army 875 F. 2d 699, 702 (9th Cir. 1989) 75 Ibid., 704. 76 Summary judgment is when the judge declares a winner in a law suit with out having a full trial based on the merits of the case. This is done most often when the facts of the case are not in dispute. For example in the Watkins' case the fact that Watkins is gay was not in dispute, the constitutionality of the Army 'sregulation was. This was at the time when ample precedent existed that the Army's regulation was not unconstitutional, hence, the judge saw no reason to retry the issue again. 77 Watkins, 704. 78 Ibid., 701-704. 79 Equitable estoppel is, in this case, the doctrine by which the government my be estopped (see note 80) from taking action against a person or party that will cause that person or party harm becouse of affirmative misconduct in the past. 80 Estoppel is the doctrine that prevents a person or orginization, in this case the Army, from future conduct that might cause anouther person or orginization harm becouse of past conduct of the person or orginization that is being harmed. 81 453 F.2d 197, 201 (5th Cir. 1971). 82 Watkins, 705; citations omitted. 83 722 F.2d 507, 509-10 (9th Cir. 1983) 84 Watkins, 705-706. 85 Ibid., 707. 86 Ibid., 706-709. 84 Ibid., 709. 88 Ibid., 709-711. 89 Watkins, 716. 90 370 U.S. 660, 82 S.Ct 1417 (1962) 91 Watkins, 712-724. 92 470 U.S. 1009, 1014 (1985) 93 688 F.Supp 1361, 1369 (1987) 94 703 F.Supp. 1372 (1989) 95 Watkins, 725; citation omitted. 96 Ibid. 97 Rowland, 470 U.S. at 1014, 105 S.Ct at 1376-77 (Brennan J. dissenting from denial of cert. (quoting Player, 457 U.S. at 216 n. 14, 102 S.Ct at 2394 n.24)); quoted in Watkins, 725. 98 Ibid. 99 Ibid., 725-726 100 Ibid., 727. 101 Army Regulation 635-200, 15-2(a), quoted in Watkins, 727. 102 Watkins, 726-728. 103 Dunn v. Blumstein, 405 U.S. 330, 342, 92 S.ct. 995, 1003, 31 L.Ed.2d 274 (1972) (quoting Shapiro, 394 U.S. at 634, 89 S.Ct. at 1331); quoted in Watkins, 728. 104 Watkins, 728-729. 105 963 F.2d 1160 (1992 U.S. App.) 106 808 F. Supp. 1455 (1993) 107 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. 108 Article I Section 9 of the U.S. Constitution prohibits the government from passing a bill of attainer. 109 Pruitt v. Weinberger et. al No. 87-5914, App ellant's Opening Brief 110 Constitution, art. I, sec.. 9. 111 Meinhold v. U.S. Department of Defence et.al No. CV 92-6044, Appellant's Opening Brief 112 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. 113 Pruitt, Opening Brief 114 Pruitt v. Cheney 963 F.2d 1160, 1163 (1992 U.S. App.) 115 Ibid., 1161. 116 Renoticed her motion for summary judgment means that Priutt refiled her motion for summary judgment (see note 76). 117 Ibid. 118 Ibid., 1161-1162 119 617 F. Supp 170, 172, 144, (E.D. Cal. 1985) 120 Pruitt 863, 1163-1164. 121 Conley v. Gibson 355 U.S. 41, 45-46 (footnote omitted), quoted in Pruitt, 1164. 122 Pruitt, 1164. 123 Ibid. 124 632 F. 2d 788 (9th Cir. 1980), cert. denied, 452 U.S. 905, 454 U.S. 885 (1981) 125 Pruitt, 1165. 126 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). 127 Beller 632 F.2d at 811, quoted in Pruitt, 1165. 128 466 U.S. 429 (1983) 129 Ibid., 433. 130 473 U.S. 432 (1985). 131 Pruitt, 1165. 132 Ibid., 1164-1166. 133 Ibid., 1166-1167. 134 See conclusion of Chapter Three for more recent decisons in Dusty Pruitts case. 135 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. 136 Meinhold v. Department of Defence 808 F. Supp 1453, 1455 (1992) 137 Navy Military Personal Manual 3630400(1). Quoted in Meinhold v. United States Department of Defense, 808 F. Supp. 1455, *1457 138 "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 139 Ibid., 56. 140 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 141 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 142 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 143 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 144 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 145 Meinhold's Exhibit 12, p. 874, PP 4 & 7. Quoted in Meinhold v. United States Department of Defense, 808 F. Supp. 1455, *1458 146 See the Chapter Three conclusion for more up to date information. 147 Steffan, Lexis 29521, 2. 148 Steffan v. Cheney, et al. 733 F. Supp. 115 1989 U.S. Dist. 149 Steffan v. Cheney, et al. 733 F. Supp 121 1989 U.S. Dist. 150 Ibid., 127. 151 Steffan v. Cheney et al. 920 F. 2d. 74 1990 U.S. App. 152 708 F. Supp. 1 1991 U.S. Dist 153 Steffan v. Cheney 708 F. Supp. 1, 48 1991 U.S. Dist 154 Ibid., 38. 155 Steffan, Lexis 29521, 1. 156 741 F.2d 1388 (D.C. Cir. 1984), in which the D.C. Circuit upheld the discharge of a Navy petty officer for sodomy. 157 Steffan, Lexis 29521, 8. 158 Ibid., 9. 159 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. 160 Steffan , Lexis 29521, 10. 161 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. 162 Stanley v. Georgia 394 U.S. 557, 565 (1969), quoted in Steffan, Lexis 29521, 11. 163 Steffan, Lexis 29521, 12. 164 Ibid., 165 Able v. United States, U.S. District Court, E.D. New York No. CV 94-0974, April 4, 1994. Westlaw, WL112117. 166 "President Announces Policy on Gays in the Military" Navy News Service 19 July 1993, NAVNEWS 050/93. (emphasis added) 167 Shilts, 710-711. 168 Ibid., 627-628. 169 Franco v. Kelly, 854 F.2d 584, 589 (2d Cir. 1988), quoted in Able. 170 475 U.S. 503 (1986). 171 Greer v. Spock, 424 U.S. 828 (1976) 172 Brown v. Glines, 44 U.S. 348 (1980) 173 Able, 5. 174 Ibid. 175 Ibid., 474. 176 Ibid., 472. 177 Hunter, Michaelson, and Stoddard, 59. 178 Shilts, 6.