James Lee MILLER, Plaintiff-Appellant, v. Donald H. RUMSFELD, Secretary of Defense et al., Defendant-Appellees.
No. 77-1671.
United States Court of Appeals, Ninth Circuit.
May 15, 1981.
80-90
ORDER
The panel as constituted in the above case has voted to deny the petition for rehearing of 632 F.2d 788.
The suggestion for a rehearing en banc having been submitted to a vote of the full court, there is no majority in favor of the suggestion.
The petition for rehearing is denied and the suggestion for a rehearing en banc is rejected.
Among those judges of the court voting to hear the case en banc were Judges Booch-ever and Norris, who file the following dissents from the rejection of the en banc suggestion.
BOOCHEVER, Circuit Judge, concurring in part with Circuit Judge NORRIS’ dissent from the court‘s rejection of the suggestion for rehearing en banc:
Because I believe that this case presents issues of exceptional importance, I join Judge Norris in dissenting from the court‘s rejection of the suggestion of rehearing en banc. I further agree with the substance of Part III of Judge Norris’ dissent. Assum-ing that the Navy‘s professed interests are legitimate, they cannot survive either the strict scrutiny test applicable to fundamen-tal rights or the “heightened solicitude” test used by the Beller panel.
* Honorable A. Sherman Christensen, Senior United States District Judge for the District of Utah, sitting by designation.
NORRIS, Circuit Judge, dissenting from the court‘s rejection of the suggestion for rehearing en banc:
In Beller v. Middendorf, 632 F.2d 788 (9th Cir. 1980), a panel of this court upheld as constitutional a Navy regulation which re-quires the mandatory discharge of any member who has engaged in an act of ho-mosexuality, without regard to individual fitness for service. As Part I of my opinion argues, the Beller panel seriously miscon-strues the proper methodology of substan-tive due process analysis. Part II considers the question—avoided by the Beller panel—which is crucial to the proper due process analysis: whether private consensual homo-sexual activity is protected as an aspect of the fundamental right of privacy. Part III analyzes the Navy‘s justifications for the regulation and demonstrates that they are so wholly inadequate that the regulation is unconstitutional even under the Beller pan-el‘s approach to substantive due process. Because I believe that these are issues of exceptional importance, I must dissent from this court‘s refusal to rehear Beller en banc.
I.
The Supreme Court has stated bluntly that “[s]ubstantive due process has at times been a treacherous field ....” Moore v. City of East Cleveland, 431 U.S. 494, 502, 97 S. Ct. 1932, 1937, 52 L. Ed. 2d 531 (1977). Mindful of the excesses of the Lochner1 era, the Court has approached a revival of substantive due process with understanda-ble caution and restraint. In Poe v. Ullman, 367 U.S. 497, 81 S. Ct. 1752, 6 L. Ed. 2d 989 (1961), Justices Douglas and Harlan, although differing sharply over the form such review should take, urged in separate dissenting opinions that the Court resurrect substantive analysis under the Due Process Clause. Justice Douglas, wary of the spec-ter of the Lochner era, observed that “[t]he error of the old Court . . was not in enter-
Four years later, in Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965), the Court struck down as viola-tive of substantive due process a Connecti-cut statute prohibiting the use of contracep-tives. The Court explicitly rejected the Lochner approach. Id. at 482, 85 S. Ct. at 1680. To guard against the dangers of the Lochner era, wherein the Court sat “as a super-legislature to determine the wisdom, need, and propriety of laws that touch[ed] economic problems, business affairs, or so-cial conditions,” id., the Griswold Court adopted a categorical approach. The Court distinguished ordinary laws, which would be reviewed with great deference to the legis-lature, from laws which infringe activities implicating “fundamental constitutional guarantees.” Id. at 485, 85 S. Ct. at 1682. These latter regulations the Court would closely scrutinize under the Due Process Clause. The Connecticut statute at issue in Griswold, because it infringed the funda-mental right of privacy and could not with-stand strict scrutiny, violated substantive due process.
Although individual justices have disap-proved of the fundamental rights approach adopted in Griswold and have suggested different approaches to substantive due process analysis, the Court has yet to aban-don it. See, e. g., Roe v. Wade, 410 U.S. 113, 155, 93 S. Ct. 705, 728, 35 L. Ed. 2d 147 (1973) (“Where certain fundamental rights are involved, the Court has held that regu-lations limiting these rights may be justi-fied only by a ‘compelling state interest,’ . . and that legislative enactments must be narrowly drawn to express only the le-gitimate state interests at stake“). In Beller, a panel of this court nevertheless reject-ed the fundamental rights approach in fa-vor of a “balancing” approach to substan-tive due process analysis. This court, in choosing not to rehear Beller en banc, en-shrines as the law of this circuit a method of substantive due process analysis which the Supreme Court has scrupulously de-clined to adopt.
The Beller panel acknowledges that, as recently as Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), the Court was firmly committed to the fundamental rights approach. See 632 F.2d at 807. It suggests, however, that the Court‘s sub-stantive due process analysis subsequently has become more complex. See id. “Recent decisions,” the panel concludes, “in-dicate that substantive due process scrutiny of a government regulation involves a case-by-case balancing ....” Id. Thus the panel, despite acknowledging that the plaintiffs’ attacks on the Navy regulation “were based on the claim that the conduct prohibited by the regulation was protected as an aspect of the fundamental right of privacy,” id. at 807, insists that “this case does not require us to address the question whether consensual private homosexual conduct is a fundamental right,” id. The panel offers three citations for this proposi-tion. First, the panel cites Zablocki v. Re-dhail, 434 U.S. 374, 98 S. Ct. 673, 54 L. Ed. 2d 618 (1978). Zablocki, however, provides no support whatsoever for a balancing ap-proach. The Court found that the Wiscon-sin statute at issue in Zablocki directly in-terfered with a fundamental right—the right to marry. Id. at 383, 384, 386, 387, 98 S. Ct. at 679, 680, 681. Indeed, the Court specifically relied on Griswold, supra—the seminal case in the Court‘s development of the fundamental rights approach—for its substantive due process analysis. Id. at 384, 98 S. Ct. at 679. The Zablocki Court reemphasized the most significant compo-nent of that approach: “When a statutory classification significantly interferes with the exercise of a fundamental right, it can-not be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those in-terests.” Id. at 388, 98 S. Ct. at 682.
Second, the Beller panel cites the concur-ring opinion of Justice Stewart in Zablocki, and in particular Justice Stewart‘s quota-tion of Justice Harlan‘s concurring opinion in Williams v. Illinois, 399 U.S. 235, 90 S. Ct. 2018, 26 L. Ed. 2d 586 (1970). Both Justice
Finally, the Beller panel cites Moore v. City of East Cleveland, supra. Moore dem-onstrates that the Court is struggling with the substantive due process doctrine: the case produced six opinions. Justice Powell‘s plurality opinion does not, however, aban-don the fundamental rights approach. In-deed, citing Griswold, supra, and Roe, supra, the Court distinguished the two catego-ries of substantive due process cases. First, the cases involving regulations which do not infringe fundamental rights, in which regu-lations are upheld if they “b[ear] a rational relationship to permissible state objectives.” See 431 U.S. at 498-99, 97 S. Ct. at 1934-35. Second, the special cases involving regula-tions which infringe fundamental rights, where “the usual judicial deference to the legislature is inappropriate.” See id. The Court drew upon this fundamen-tal/non-fundamental distinction to explain its decision in Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S. Ct. 1536, 39 L. Ed. 2d 797 (1974). The Court observed that the statute held invalid in Moore, unlike the somewhat similar statute upheld in Belle Terre, “slic[ed] deeply” into a fundamental right. See 431 U.S. at 498-99, 97 S. Ct. at 1934-35.
The Beller panel simply strikes off on its own down the balancing path; it is not in any sense accurate to suggest that the recent decisions of the Supreme Court com-pel or even allow this. The problem with the panel‘s balancing approach—the reason, I suggest, that the Supreme Court has re-frained from adopting it—is that it is inher-ently standardless. The panel‘s opinion in Beller demonstrates the result of a stan-dardless approach to substantive due proc-ess analysis: judges are left “free to roam where unguided speculation might take them.” Poe v. Ullman, supra, 367 U.S. at 542, 81 S. Ct. at 1776 (Harlan, J., dissenting).
The Beller panel observes that there are “important analytic and rhetorical similari-ties” between substantive due process and equal protection analysis. 632 F.2d at 807. Thus it acknowledges that “where the Government seriously intrudes into matters which lie at the core of interests which deserve due process protection, then the compelling state interest test employed in equal protection cases may be used by the Court to describe the appropriate due proc-ess analysis.” Id. at 808. This, of course, is the fundamental rights test used by the Supreme Court. The Beller panel implicitly holds that the conduct in question is not within that core of interests, for it con-cludes that the proper scrutiny of the Navy regulation “lies somewhere between” the strict scrutiny engaged in by the Court in Roe, and the deferential rational relation-ship test. Id. What this standard is that “lies somewhere between” the Supreme Court‘s two traditional substantive due process standards, the Beller panel fails to articulate. It deems the conduct in ques-tion deserving of some undefined “height-ened solicitude,” id. at 810, but provides absolutely no indication how this elevated constitutional status bears on infringing regulations, i. e., how strong a conflicting government interest must be in order to justify infringement, and how closely relat-ed to the government‘s interest an infring-ing regulation must be in order to be consti-tutional. These critical factors remain a mystery under its balancing approach. The only identifiable bounds of substantive due process under the panel‘s approach are “the predelictions of those who happen at the time to be Members of this Court.” Moore, supra, 431 U.S. at 502, 97 S. Ct. at 1937.
In Moore the Supreme Court demonstrat-ed its commitment to the fundamental rights approach despite the difficult ques-tions it presents—and a balancing approach avoids. The Court had to decide whether
II.
Society‘s attitudes toward various aspects of sexuality and personal autonomy have changed enormously in recent years. As social issues have become legal issues, the Supreme Court has redefined the bounds of the government‘s power to prohibit certain activities or types of behavior. The Beller panel acknowledged that there is “substan-tial academic comment which argues that the choice to engage in homosexual action is a personal decision entitled, at least in some instances, to recognition as a fundamental right and to full protection as an aspect of the individual‘s right of privacy.” 632 F.2d at 809. Indeed, there is. See, e. g., D. Bazelon, Probing Privacy, 12 Gonzaga L. Rev. 587, 616-17 (1977); K. Karst, The Freedom of Intimate Association, 89 Yale L.J. 624, 682-86 (1980); D. Richards, Sexual Autonomy and the Constitutional Right to Privacy: A Case Study in Human Rights and the Unwritten Constitution, 30 Has-tings L.J. 957, 1014-18 (1979); Note, The
The Supreme Court has not yet addressed the question whether private consensual ho-mosexual activity is constitutionally pro-tected as an aspect of the right of privacy. In Doe v. Commonwealth‘s Attorney, 425 U.S. 901, 96 S. Ct. 1489, 47 L. Ed. 2d 751 (1976), the Court issued a summary affirm-ance of a three-judge district court‘s denial of injunctive and declaratory relief against a Virginia sodomy statute. The district court held that private consensual homosex-ual activity between adults is not protected by the right of privacy. 403 F. Supp. 1199 (E.D. Va. 1975). There is strong reason to believe, however, that the Supreme Court‘s summary affirmance was not a judgment on the merits, but rather was predicated solely on a lack of standing. There had been no prosecution initiated or even threatened against the plaintiffs in Doe. The language of subsequent Court opinions tends to confirm this interpretation of Doe. In Carey v. Population Services Interna-tional, 431 U.S. 678, 694 n.17, 97 S. Ct. 2010, 2021 n.17, 52 L. Ed. 2d 675 (1977), the Court observed that
Appellees argued that the state‘s policy to discourage sexual activity of minors is itself unconstitutional, for the reason that the right to privacy comprehends a right of minors as well as adults to engage in private consensual sexual behavior. We observe that the Court has not definitive-ly answered the difficult question wheth-er and to what extend the Constitution prohibits state statutes regulating such behavior among adults.
Indeed, Justice Powell, in his dissenting opinion in Carey, suggested that the Court‘s opinion subjected “all state regulations af-fecting adult sexual relations to the strict-est standard of judicial review.” Id. at 703, 97 S. Ct. at 2025. After Carey, courts and commentators have been understandably reluctant to consider Doe a decision on the merits. See, e. g., People v. Onofre, 51 N.Y.2d 476, 434 N.Y.S.2d 947, 415 N.E.2d 936 (1980) (sodomy statute prohibiting pri-vate consensual homosexual activity vio-lates the constitutional right of privacy); L. Tribe, American Constitutional Law, § 15-13 at 943 (1978).6
The Supreme Court‘s “modern” substan-tive due process decisions, beginning with Griswold in 1965, present a relatively com-pact body of law. Virtually all of those decisions deal with intimate private deci-sions regarding personal association and control over one‘s physical person. Careful analysis of those decisions indicates that their “force and rationale,” Moore, 431 U.S. at 501, 97 S. Ct. at 1936, should be applied to find private consensual homosexual activity protected as a fundamental right.
In Griswold, supra, the Court held that a state statute prohibiting the use of contra-ceptives violated a constitutional right of privacy emanating from the specific guar-antees of the Bill of Rights. The Court focused on the “notions of privacy sur-rounding the marriage relationship.” 381 U.S. at 486, 85 S. Ct. at 1682. Thus in Griswold, the Court held that a married couple may engage in sexual activity for other than procreative purposes unfettered by state attempts to discourage such con-duct by prohibiting the use of contracep-tives.
Two years after Griswold, in Loving v. Virginia, 388 U.S. 1, 87 S. Ct. 1817, 18 L. Ed. 2d 1010 (1967), the Supreme Court held invalid, as infringing the fundamental right to marry, a Virginia miscegenation statute. The Virginia statute sought to prevent the “corruption of blood” it feared would result from sexual relations between marriage partners of different races. In effect, the Loving Court held that a state may not prohibit adults from voluntarily entering into a legal relationship in which, under Griswold, their right of private sexu-al intimacy would be protected.
If under Griswold the distribution of con-traceptives to married persons cannot be prohibited, a ban on distribution to un-married persons would be equally imper-missible. It is true that in Griswold the right of privacy in question inhered in the marital relationship. Yet the marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional make-up. If the right of privacy means any-thing, it is the right of the individual, married or single, to be free from unwar-ranted governmental intrusion into mat-ters so fundamentally affecting a person as the decision whether to bear or beget a child.
405 U.S. at 453, 92 S. Ct. at 1038 (emphasis in original).
Thus in Eisenstadt the Court effectively prohibited states from burdening the deci-sion by unmarried persons to engage in sexual activity by making it more difficult for them to avoid a pregnancy. This signif-icantly refocused the right of privacy re-garding an individual‘s decision to engage in sexual activity. The scope of this right was extended in Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), in which the Court held that a woman‘s choice to have an abortion is protected as an aspect of the fundamental right of privacy: Whereas Griswold and Eisenstadt prohibit-ed the government from inhibiting sexual activity by hindering an individual‘s efforts to reduce the chance that his or her sexual activity would result in pregnancy, Roe pro-hibited the government from inhibiting sex-ual activity by legislating that women could not choose to terminate pregnancies which did result. Justice Stewart, in his concur-ring opinion, adopted the rationale of Abele v. Markle, 351 F. Supp. 224, 227 (D. Conn. 1972), to explain the Roe Court‘s extension of the individual‘s right of control over inti-mate personal decisions regarding the body. ” ‘Certainly the interests of a woman in giving of her physical and emotional self during pregnancy and the interests that will be affected throughout her life by the birth and raising of a child are of a far greater degree of significance and personal intimacy than the right to send a child to private school protected in Pierce v. Society of Sisters, 268 U.S. 510, 45 S. Ct. 571, 69 L. Ed. 1070 (1925), or the right to teach a foreign language protected in Meyer v. Ne-braska, 262 U.S. 390, 43 S. Ct. 625, 67 L. Ed. 1042 (1923).’ ” 410 U.S. at 170, 93 S. Ct. at 735, quoting Abele v. Markle, supra. This approach places the focus of the substantive due process inquiry on the significance and intimacy of a personal decision to the indi-vidual. So perceived, the fundamental rights to use contraceptives and to termi-nate an unwanted pregnancy subsequently have been extended to minor women. See Carey, supra; Planned Parenthood of Mis-souri v. Danforth, 428 U.S. 52, 96 S. Ct. 2831, 49 L. Ed. 2d 788 (1976); Bellotti v. Baird, 443 U.S. 622, 99 S. Ct. 3035, 61 L. Ed. 2d 797 (1979).
The Griswold line of substantive due process cases—Griswold, Loving, Eisen-stadt, Roe, Danforth, Carey—indicates a consistent commitment by the Court to the view that the Due Process Clause protects the right of mature individuals to make personal choices in intimate private matters relating to one‘s sexual activity. Thus a mature individual has a fundamental right to choose a marital—and thus sexual—part-ner, to reduce the risk of pregnancy from sexual activity engaged in outside of a mar-riage relationship, and to terminate a preg-nancy resulting from sexual activity en-gaged in outside a marital relationship. Both Roe and Eisenstadt cogently demon-strate that the right of privacy in sexual
It is of no significance that the conduct in question may be condemned as immoral by a majority in our society. In Stanley v. Georgia, 394 U.S. 557, 89 S. Ct. 1243, 22 L. Ed. 2d 542 (1969), the Supreme Court indi-cated that even socially condemned activity is protected from infringement if carried out in private, absent some demonstrable external effect.7 Griswold, Eisenstadt and Roe—each of which holds invalid a statute reflecting a societal judgment that the pro-hibited activity was immoral—make clear that the right of privacy guaranteed by the Due Process Clause is not dependent on societal approval. The Supreme Court has emphasized that it has not yet decided the question whether the right of privacy pro-tects the private sexual behavior of con-senting adults. See Carey, 431 U.S. at 694 n. 17, 97 S. Ct. at 2021 n. 17. Unless the Court “closes [its] eyes to the basic reason why certain rights . . . have been accorded shelter under the Fourteenth Amendment‘s
due process clause,” Moore, 431 U.S. at 501, 97 S. Ct. at 1936, it cannot avoid applying the “force and rationale,” id., of its prece-dents involving intimate personal decisions regarding sexuality to find private consen-sual homosexual activity protected by the fundamental right of privacy.
III.
The Beller panel acknowledges that the reasons which led the Supreme Court to protect certain intimate personal decisions suggest that private consensual homosexual activity be afforded “heightened solicitude” under the Due Process Clause. 632 F.2d at 810. As discussed in Part I of this opinion, supra, an unbroken line of substantive due process decisions by the Supreme Court mandates that “heightened solicitude” un-der the Due Process Clause must take the form of strict scrutiny of infringing regula-tions. That scrutiny requires a critical analysis of the strength of the govern-ment‘s interests, and the availability of less restrictive alternatives for achieving the government‘s legitimate goals.8
A. The Existence and Strength of the Navy‘s Interests
A Civil Service mandatory discharge rule for homosexuals was held invalid in Norton v. Macy, 417 F.2d 1161 (D.C. Cir. 1969). The court stated that “a policy of excluding all persons who have engaged in homosexual conduct from government employ” would be “inherently absurd” and violative of due process. Id. at 1167 n. 28. “[T]he notion that it could be an appropriate function of the federal bureaucracy to enforce the ma-jority‘s conventional codes of conduct in the
Military necessity, to be sure, is a weighty governmental interest. “But the concept of military necessity is seductively broad and has a dangerous plasticity. Be-cause they invariably have the visage of overriding importance, there is always the temptation to invoke security ‘necessities’ to justify an encroachment on civil liberties. For that reason, the military-security argu-ment must be approached with a healthy skepticism . . . .” Brown v. Glines, 444 U.S. 348, 369, 100 S. Ct. 594, 614, 62 L. Ed. 2d 540 (1980) (Brennan, J., dissenting). The Beller panel was easily seduced. It accepted with-out critical scrutiny the Navy‘s statement of its interests and the importance of those interests. The panel made no attempt to respond to the devastating observations of Judge Schwarzer regarding those professed interests, see Saal v. Middendorf, 427 F. Supp. 192 (N.D. Cal. 1977).9 The Beller panel cites Glines, supra, for the proposition
that “[r]egulations which might infringe constitutional rights in other contexts may survive scrutiny because of military necessi-ties.” 632 F.2d at 811. This use of Glines is rather disingenuous, however, since the panel failed to follow the Supreme Court‘s example and critically examine the alleged military necessity. The Glines Court up-held the regulations at issue only after close scrutiny; the Beller panel gives the Navy regulation no critical scrutiny at all. The regulations upheld in Glines prohibited con-duct which reasonably could be deemed a clear danger to military loyalty or a materi-al interference with the accomplishment of a military mission. 444 U.S. at 355, 100 S. Ct. at 600. Contrast the meager finding of the Beller panel that the prohibited ac-tivity has some “rational” connection to concerns which have “some basis in fact.” 632 F.2d at 808-09 n. 20, 812. Nowhere did the Glines Court indicate that the regula-tions before it could have been sustained on so tenuous a connection to so speculative a concern. Moreover, the regulations upheld in Glines were extremely narrowly tailored, requiring a case-by-case determination by the Air Force whether the legitimate mili-tary concerns were implicated. Contrast the Navy regulation upheld in Beller, which sweeps as broadly as possible, requiring dis-charge for a single act of homosexuality—whether engaged in while in the Navy or before leaving civilian life—without any ex-amination whether the Navy‘s concerns are implicated in the particular case or whether the member is otherwise fit for service.
Considered with proper detachment rath-er than knee-jerk acquiescence, the military necessity argument is revealed not to be supported by the record in Beller. The Beller panel identifies four Navy interests which implicate the service‘s ability to effi-ciently accomplish its mission:
- protection of the “the fabric of mili-tary life,” id.;
- preservation of the “the integrity of the recruiting process,” id.;
maintenance of the “discipline of per-sonnel in active services,” id.; and - assurance of the “acceptance of men and women in the military, who are sometimes stationed in foreign coun-tries with cultures different from our own,” id.
The Navy contends, and the Beller panel uncritically agrees, that the regulation fur-thers these interests because:
- tension will arise between homosexu-als and heterosexuals, because the “great majority of naval personnel . . . despise/detest homosexuality,” 632 F.2d at 811 and n.22;
- undue influence caused by emotional relationships among homosexuals will “subvert” the proper performance of duties or chain of command, id.;
- the ability of homosexuals to perform supervisory or command duties will be “degraded” by their inability to “maintain the necessary respect and trust,” id.; and
- recruiting effort will be adversely af-fected by parents’ concerns about their children “associating with indi-viduals who are incapable of main-taining high moral standards,” id.
First and fundamentally, the Beller panel is simply wrong in accepting all of these as legitimate interests. The Navy is not in the business of promoting its own moral views or shielding the moral sensibilities of Navy personnel and citizens of host nations. Rather, as the Supreme Court has bluntly stated, “the primary business of . . navies [is] to fight or be ready to fight wars should the occasion arise.” Toth v. Quarles, 350 U.S. 11, 17, 76 S. Ct. 1, 5, 100 L. Ed. 8 (1955). Admittedly, to prepare for this vital role the Navy permissibly may “insist upon a respect for duty and a discipline without counterpart in civilian life.” Schlesinger v. Councilman, 420 U.S. 738, 95 S. Ct. 1300, 43 L. Ed. 2d 591 (1975). Never, however, has the Navy offered anything to indicate that maintenance of such discipline war-readi-ness requires that the private lives of Navy members meet the approval of other mem-bers, citizens of host nations, or the Navy itself. Intolerance is not a constitutional basis for an infringement of fundamental personal rights. Yet intolerance or a pre-sumption of intolerance is at the very root of each of the dangers which the Navy asserts is posed to its interests by homosex-uals.
Moreover, careful consideration of these professed concerns reveals them to be so weak that they cannot possibly survive any form of heightened scrutiny, much less the strict scrutiny which is appropriate. None of the problems accepted by the Beller pan-el is in any way confined to homosexual activity. All, in fact, are at least as pro-nounced with respect to other groups not subject to mandatory discharge, such as women and racial minorities. “In other words, the problems which the Navy enu-merates to support blanket exclusion of per-sons who engage in homosexual acts are problems which are endemic to a heteroge-neous society such as the Navy and with which it deals in the ordinary course of its operations on a case-by-case basis.” Saal v. Middendorf, 427 F. Supp. at 201. “Without impairment of its efficiency or effective-ness, it has abandoned the stereotypes of the past that have stigmatized women and members of minority races in favor of judg-ing the fitness of individuals on their mer-its.” Id. at 203. With respect to other conduct or personal traits, the Navy has an elaborate system for case-by-case determi-nations of fitness. Yet for homosexual ac-tivity—ironically an extremely personal form of human conduct—the Navy‘s ap-proach remains wholly untailored. The fit-ness of these plaintiffs, and the absence of the feared problems from their cases, has never been denied by the Navy.
The Navy could assert identical fears as a basis for the blanket discharge or rejection of groups other than homosexuals, and the unconstitutionality would be unquestioned. The Navy recently has witnessed “tensions and hostility” between members of various racial groups, many of whom may “detest” and “despice” other races. Yet obviously the Navy could not constitutionally bar all blacks from service, regardless of whether
Similarly, emotional relationships may—and surely do—occur between male and fe-male Navy personnel. Yet the Navy obvi-ously may not bar all women from service simply because some emotional relation-ships might negatively affect proper com-mand relationships. The same can be ob-served of the Navy‘s fear of the inability of some personnel to gain the respect and trust of those they command. This problem could—and no doubt does, in some instanc-es—arise because the commander is black or is a woman. Yet the Navy obviously could not constitutionally bar all blacks or all women even if they were not respected by the majority of Navy personnel.
The other problems accepted by the Bel-ler panel as justifications for discharging all homosexuals are posed to at least as great an extent by people who engage in conduct which is not grounds for mandatory dis-charge. Parents of potential Navy recruits may be—and no doubt are—concerned about many things their children may en-counter in the Navy. It is simply absurd, however, to suggest that the possibility of association with homosexuals is so major a concern of parents that mandatory dis-charge of homosexuals from the Navy is required. Certainly parents are more con-cerned about their children associating with persons who use dangerous illegal drugs. Yet drug abuse, like gambling, alcoholism, and adultery, is not grounds for mandatory discharge. Moreover, homosexuals partici-pate in all walks of life. They are in Boy and Girl Scouts, on high school faculties and athletic teams, and in church groups; they work in factories, stores, restaurants, and offices. In short, parents can shield their children from incidental association with homosexuals only by shielding them from the world.
The Navy also professes a concern that homosexual members will offend citizens of host nations. As noted, I do not accept that the Navy has a legitimate interest in pro-tecting the sensibilities of intolerant per-sons in foreign countries. Even if such an interest does exist, however, the Navy regu-lation bears only the most tenuous relation-ship to it. Persons in host nations are more likely to be offended by more noticeable characteristics such as race or sex, or such frequently public behavior as drug use or drunkenness, than by the private activity prohibited by the Navy. Never have the plaintiffs contended that the Navy could not discharge members for public homosex-ual conduct.
The Navy regulation, ultimately, cannot prevent the problems which the Navy fears even with respect only to homosexuals. Much of the tension and hostility, absence of trust and respect, offended sensibilities, and parental apprehension which concerns the Navy, flows not from the fact of a private sex act, but rather from related public behavior. Yet much potentially of-fensive public behavior other than actual sexual activity is beyond the Navy‘s power to control. Public expressions or encour-agements of homosexuality as a personal philosophy, and public displays of behavior-al tendencies or traits commonly perceived as homosexual, clearly are more likely than private conduct to arouse hostility, create tension, or offend sensibilities. Yet such disruptive public behavior may not constitu-tionally be prohibited by the Navy. See benShalom v. Secretary of the Army, supra.
B. The Possibility of a Less Restrictive Alternative
The Beller panel‘s analysis is similarly uncritical with regard to the possibility of less restrictive alternatives to the mandato-ry discharge rule. Without any supporting analysis or discussion, it simply rejects as impractical the possibility of “achieving the Government‘s goals by regulations which turn more precisely on the facts of an indi-vidual case ....” 632 F.2d at 810. This has no support in the record. As noted, the Navy already uses individual fitness hear-ings as a wholly adequate method of deal-ing with the very types of concerns ex-pressed in Beller when they occur in the context of conduct or behavior other than homosexuality. The panel gives no expla-
IV.
The Beller panel‘s opinion has two basic flaws. First, it seriously misapplies sub-stantive due process analysis, rejecting, in favor of some standardless balancing proc-ess, the fundamental rights approach estab-lished by an unbroken line of Supreme Court decisions. This error in methodology has significance extending far beyond the specific legal issue presented by the Navy regulation. Given unwarranted credence by this court‘s refusal to rehear the case en banc and delineate the correct approach to substantive due process analysis, the panel‘s approach will create confusion and conflict in the law of this circuit. Second, the opin-ion, despite the panel‘s assertions, reflects no solicitude whatsoever for the conduct in question. It accepts the claim of military necessity uncritically, gives virtually no scrutiny to the Navy‘s professed interests, requires virtually no showing of connection between the Navy‘s regulation and the goals identified, and upholds the constitu-tionally protected activity despite the clear existence of a practical, less restrictive al-ternative. In sum, the Beller panel‘s opin-ion is wholly unsupported in the law.