Lead Opinion
Opinion for the Court filed by Circuit Judge SILBERMAN.
Concurring statement filed by Circuit Judge BUCKLEY, with whom RANDOLPH, Circuit Judge, joins.
Concurring statement filed by Circuit Judge RANDOLPH.
Statement concurring in part, dissenting in part, and concurring in the judgment filed by Circuit Judge GINSBURG.
Dissenting opinion filed by Circuit Judge WALD, with whom EDWARDS, Chief Judge, and ROGERS, Circuit Judge, join.
Joseph Steffan, a former Navy midshipman who admitted to being a homosexual, appeals from the judgment of the district court sustaining the constitutionality of the regulations pursuant to which he was discharged from the Naval Academy. We affirm.
I.
Midshipmen enrolled in the Naval Academy are subject to at least two sets of regulations relevant to homosexuality: the Naval Academy’s own regulations and the Directives of the Department of Defense applicable to the 'armed forces generally.
Academy regulations provide a number of “separation criteria” applicable to the “small minority of midshipmen” who “either [do] not perform to standards” or who “possess certain traits which are undesirable in commissioned officers.” United States Naval Academy Regulation, COMDTMIDN Instruction 1610.6F Ch-2.15.1 (July 16, 1987).
The basis for separation may include previous, prior service or current service conduct or statements. Homosexuality includes the member engaging in, attempting to engage in or soliciting another to engage in a homosexual act or acts. It also includes statements by the member that he or she is homosexual or bisexual, or the member marrying or attempting to marry a person known to be of the same biological sex.
Id. at Ch-2.15.3.c (emphasis added). The Academy regulations do not further define the term “homosexual.”
The Department of Defense Directives applicable to homosexuality are more detailed. They begin with a statement describing their “basis” which provides:
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 the 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;*683 to recruit and retain members of the Military Services; to maintain the public acceptability of military service; and to prevent breaches of security.
DOD Directive 13S2.14.H.l.a, 32 C.F.R. Pt. 41, App. A (1991) (superseded) (emphases added). The Directives mandate that a “member shall be separated ... if one or more of the following approved findings is made.” Id. at 1332.14.H.1.C. One such finding is that “[t]he member has stated that he or she is a homоsexual ... unless there is a further finding that the member is not a homosexual.” Id. at 1332.14.H.l.c.(2). And the term “homosexual” is defined as “a person, regardless of sex, who engages in, desires to engage in, or intends to engage in homosexual acts.” Id. at 1332.14.H.l.b.(l).
Joseph Steffan enrolled in the Naval Academy in 1983 and successfully completed three of his four years of training, consistently being ranked near the top of his class. During the fall of his senior year, Steffan confided in two fellow midshipmen that he was a homosexual. One of the two reported Stef-fan’s conversation to Academy officials and on the basis of this report the Naval Investigative Service began an investigation of Stef-fan’s homosexuality. Steffan was informed of that inquiry by a fellow midshipman in March 1987. When questioned by Naval investigators, Steffan “invoked his right to remain silent,” but did confide his homosexuality to a chaplain in the Academy. Subsequently, in a meeting with the Commandant of the Academy, Steffan stated that he was a homosexual.
On March 24,1987, the Academy convened a meeting of its Performance Board. At that hearing, Steffan was asked, “I’d like your word, are you a homosexual?” He replied, “Yes, sir.” Steffan was then asked whether he had “anything else to add at this point,” and he answered “no.” Based on this hearing the Performance Board recommended to the Commandant of the Academy that “Stef-fan be separated from the Naval Academy due to insufficient aptitude for commissioned service.” The Board did not state explicitly whether it was relying on the Academy’s regulations or the Directives, although its conclusion appears to paraphrase the Academy regulation’s wording. The Commandant accepted this recommendation and forwarded it to the Academic Board, chaired by the Superintendent of the Academy. That Board met on April 1 and voted to recommend Steffan’s discharge from the Academy to the Secretary of the Navy, again based on “insufficient aptitude for commissioned service.”
Following that meeting, Steffan, who was advised by counsel, reached an agreement with the Navy, the terms of which were embodied in a “statement of understanding” signed by Steffan. Steffan acknowledged in the statement that based upon the recommendation of the Academic Board, the Superintendent of the Academy would recommend his discharge. Steffan had been given a choice: either submit a “qualified resignation” or litigate and risk recommendation of a discharge. The official transcript of a midshipman who submits a “qualified resignation” reads “Resigned” rather than “Discharged” as the cause of separation. But the qualified resignation itself includes an ac-knowledgement by the midshipman that he will be recommended for discharge by the Superintendent if he does not resign. Had Steffan chosen to appeal — presumably to the Secretary of the Navy — and had the Secretary decided that discharge was in order, Steffan’s transcript would have revealed “Discharged” as the reason for his termination. Steffan chose the first option and resigned from the Academy. The statement of understanding provided that by choosing to submit his resignation Steffan forfeited “his right to show cause to higher authority why he should not be disenrolled from the Naval Academy.” The Secretary of the Navy accepted Steffan’s resignation on May 28,1987. Subsequently, the Naval Investigative Service terminated its uncompleted investigation into possible conduct-related criminal and regulatory violations by Steffan.
Roughly a year and a half after submitting his resignation, Steffan wrote the Secretary of the Navy seeking to withdraw his resignation and resume his studies at the Academy. The Superintendent of the Academy “strongly” recommended to the Secretary that he deny the request. The Superintendent’s letter noted that Steffan had made an informed
Following that denial, Steffan brought suit in district court. Perhaps because of uncertainty as to whether his discharge was based on the Academy regulations or the DOD Directives, Steffan’s complaint sought a declaration generally that “the regulations pursuant to which the Naval Academy acted are unconstitutional on their face and as applied to the Plaintiff herein.” Steffan also sought an order “enjoining Defendants from prohibiting [him] from graduating and receiving his diploma from the Academy” and “from denying [him] his commission in the United States Navy.” The district court entered summary judgment in favor of the government, and Steffan appealed.
Steffan, whose brief focuses almost entirely on the DOD Directives, argues that the military regulations lack a rational basis because they are simply an attempt to eater to the prejudices of members of the military and because they “punish” homosexuals simply on the basis of their “status” and “thoughts” rather than on the basis of conduct. Steffan concedes — and this concession frames the dispute — that the military may discharge those who engage in homosexual conduct whether on or off duty. The government contends that the regulations are a rational attempt to exclude from the military individuals who engage in, or demonstrate a propensity to engage in, homosexual conduct. The government also asserts that admission into the military of those who engage in such conduct would undermine unit cohesion. And the government defends the regulations as an attempt to protect the privacy of service members.
The record is, to say the least, confusing as to which regulation was applied to Steffan. At various times different bodies within the military hierarchy relied on either the Academy regulation or the Directives, or both. In light of this ambiguity, and because Steffan’s complaint clearly sought invalidation of any regulation on which the Naval Academy relied, we "will consider the constitutionality of both the Academy regulations and the DOD Directives, as if each alone had provided the basis for Steffan’s discharge.
II. Naval Academy Regulations
The familiar parameters of rational basis review wеre recently reiterated by the Supreme Court in Heller v. Doe, — U.S. —,
Under this line of precedent we are required to ask two questions of the regulations. First, are they directed at the achievement of a legitimate governmental purpose? Second, do they rationally further that purpose? The first of these questions is not even in dispute in this case. As we have noted, Steffan concedes that the military may constitutionally terminate service of all those who engage in homosexual conduct — wherever it occurs and at whatever time the conduct takes place.
The dispute between the parties is thus limited to the question whether the regulations (focusing now on the Academy regulations), by requiring the discharge of those midshipmen who describe themselves as homosexual — whether or not the Academy has information establishing that an individual has engaged in homosexual conduct or intends to do so — are rational. Steffan first argues that there is no necessary factual connection between such self-description and such conduct. But Steffan relies primarily on a more subtle and novel argument. Even if the government could rationally, as a factual matter, draw a connection between the statement and the conduct, other legal considerations prevent the government from so doing. The military may not, according to Steffan, “punish” homosexuals solely on the basis of their “status.” Nor may the military presume that self-declared homosexuals will actually engage in homosexual conduct, for such conduct is illegal under the Code of Military Justice. (Sodomy is prohibited under 10 U.S.C. § 925 (1988).) Such a presumption — that someone will actually break the law — is inconsistent, he argues, with our legal traditions.
We consider first whether the Academy regulation has a rational factual basis. The appropriate question, it seems to us, is whether banning those who admit to being homosexual rationally furthers the end of banning those who are engaging in homosexual conduct or are likely to do so. The Academy can treat someone who intends to pursue homosexual conduct in the same manner as someone who engages in that conduct, because such an intent is a precursor to the
Admittedly, it is conceivable that someone would describe himself as a homosexual based on his orientation or tendencies (and, perhaps, past conduct), notwithstanding the absence of any ongoing conduct or the probability of engaging in such conduct. That there may be exceptions to the assumption on which the regulation is premised is irrelevant, however, so long as the classification (the regulation) in the run of cases furthers its purpose, and we readily conclude
that it does. As then-judge Kennedy pointed out in Beller v. Middendorf,
Nearly any statute which classifies people may be irrational as applied in particular cases. Discharge of the particular plaintiffs before us would be rational, under minimal scrutiny, not because their particular cases present the dangers which justify Navy policy, but instead because the general policy of discharging all homosexuals is rational.
Id. at 808 n. 20 (citation omitted). The rule of law presupposes the creation of сategories.
The military thus may rely on presumptions that avoid the administratively costly need to adduce proof of conduct or intent, so long as there is a rational basis for believing that the presumption furthers that end. And the military certainly furthers its policy of discharging those members who either engage in, or are likely to engage in, homosexual conduct when it discharges those who state that they are homosexual. The special deference we owe the military’s judgment necessarily affects the scope of the court’s inquiry into the rationality of the military’s policy. Compare dissent at 709. Whether a certain course of conduct is rational does not depend solely upon the degree of correlation that exists between a surface characteristic and a corresponding hidden trait. For the question whether the degree of correlation justifies the action taken — i.e., whether it is rational — necessarily depends on one’s assessment of the magnitude of the problem the action seeks to avoid. The military is entitled to deference with respect to its estimation of the effect of homosexual conduct on military discipline and therefore to the degree of correlation that is tolerable. Particularly in light of this deference, we think the class of self-de
Because removing from the military all those who admit to being homosexual furthers the military’s coneededly legitimate purpose of excluding from service those who engage in homosexual conduct, Steffan’s argument at bottom must be based on the notion that the classification drawn by the military is impermissibly over-inclusive — that the military may not presume that all admitted homosexuals will engage in homosexual conduct because some homosexuals would not. However,
courts are compelled under rational-basis review to accept a legislature’s generalizations even when there is an imperfect fit between means and ends. A classification does not fail rational-basis review because it “is not made with mathematical nicety or because in practice it results in some inequality.” “The problems of government are practical ones and may justify, if they do not require, rough accommodations— illogical, it may be, and unscientific.”
Heller, — U.S. —,
Steffan seeks to end-run this analysis by arguing that a prohibition triggered simply by an admission of homosexuality is one based on “status” rather than conduct, and therefore is legally impermissible regardless of its rational relationship, as a factual matter, to the military’s objective. As the panel that initially decided this case put the point, “America’s hallmark has been to judge people by what they do, and not by who they are.” Steffan v. Aspin,
It is true that
It is asserted that one does not choose to be homosexual and that therefore
The controversy before us is quite analogous to Massachusetts Bd. of Retirement v. Murgia,
The government’s right to rely on a classification based on identifiable characteristics as a proxy for conduct was also sanctioned in New York City Transit Auth. v. Beazer,
Nevertheless, Steffan, in order to make his point, would have us see homosexual status — which is all that he should be thought to have acknowledged — as conceptually unrelated to homosexual conduct. Although there may well be individuals who could, in some sense, be described as homosexuals based strictly on an inchoate orientation, certainly in the great majority of cases those terms are coterminous.
It is true that actual lesbian conduct has not been admitted by plaintiff on any particular occasion, and the Army has offered no evidence of such conduct. Judge Gordon found no reason to believe that the lesbian admission meant that plaintiff was likely to commit homosexual acts. We see it differently. Plaintiffs lesbian acknowl-edgement, if not an admission of its practice, at least can rationally and reasonably be viewed as reliable evidence of a desire and propensity to engage in homosexual conduct. Such an assumption cannot be said to be without individual exceptions, but it is compelling evidence that plaintiff has in the past and is likely to again engage in such conduct. To this extent, therefore, the regulation does not classify plaintiff based merely upon her status as a lesbian, but upon reasonable inferences about her probable conduct in the past and in the future. The Army need not shut its eyes to the practical realities of this situation, nor be compelled to engage in the sleuthing of soldiers’ personal relationships for evidence of homosexual conduct in order to enforce its ban on homosexual acts, a ban not challenged here.... The Army need not try to fine tune a regulation to fit a particular lesbian’s subjective thoughts and propensities.
Ben-Shalom v. Marsh,
The dissent insists that homosexual self identification and homosexual conduct are not coterminous, or at least have not been proved “in this case or any other case” to be coterminous. Dissent at 709. As we have already noted, however, the dissent’s reasoning — that the government’s failure to produce evidence (“demonstrate”) that its inference is “rooted in reality” undermines its position — is predicated on an incorrect view of constitutional law, for which the dissent miscites Heller, see id., and relies on recent district court decisions challenging the military’s ban on homosexuals which simply represent an undisciplined rebellion against the governing constitutional doctrine. Id. at 711-12. It is not the government’s burden to establish the .exact degree of correlation between those who describe themselves as homosexual and those who engage in homosex
The government’s understanding of what is meant when an individual identifies himself or herself without qualification as a homosexual .is identical to the view of Judge Reinhardt, perhaps the federal judiciary’s most vocal proponent of constitutional protections for homosexuals in military or civilian life. See, e.g., Reinhardt, The Court and the Closet: Why Should Federal Judges Have to Hide Homosexuality?, Washington Post, Oct. 31, 1993, at C3. In his dissent in Watkins v. United States Army,
Even if we define the class as those who have a ‘homosexual orientation,’ its members will consist principally of active, practicing homosexuals....
... To pretend that homosexuality or heterosexuality is unrelated to sexual conduct borders on the absurd. What distinguishes the class of homosexuals from the class of heterosexuals is not some vague ‘range of emotions,’ but the nature of the member’s sexuаl proclivities or interests ....
... Whether the group is defined by status or by conduct, its composition is essentially the same.
Id. at 1360-61 & n. 19.
We need not endorse Judge Reinhardt’s unequivocal position or his harsh criticism of the reasoning that is now relied upon by our dissenting colleagues. It is sufficient to recognize that the government’s presumption, as embodied in the Academy regulations, is certainly rational given that the human sexual drive is enormously powerful and that an open declaration that one is a homosexual is a rather reliable indication as to the direction of one’s drive.
The dissent would employ the military’s new policy, adopted in 1993, (which of course is not formally before the court) as an indication that the military has implicitly conceded that the Academy regulations (and former DOD Directives) were irrational. That proposition is a non sequitur. In fight of the extremely deferential nature of rational basis review, there would always be a range of policy choices that would meet that standard. A shift from one of those choices to another hardly suggests that the government believes the former was unconstitutional. In any event, under the new policy, Steffan’s statement — which we again emphasize is what this ease is about — would be taken to mean just what the Academy Board apparently thought it meant. The new Directives provide that a “statement by a Service member that he or she is a homosexual ... creates a rebuttable presumption that the Service member engages in homosexual acts or has a propensity or intent to do so.” DOD Directive 1332.14.H.l.b.(2) (Dec. 22, 1993). To be sure, under the new policy, the government explicitly disavows any concern with a service member’s totally private homosexual “orientation,” meaning his “sexual attrac
Certainly, individuals like Steffan who identify themselves as homosexual in a military setting — where a declaration of homosexuality is grounds for discharge — convey the impression that they are not in doubt as to the direction of their sexual drive. The inference drawn by the government in this sort of case is thus even stronger than it might be in civilian life, where it is more conceivable that an individual would experiment with such an identification. The dissent asserts that the fear of discharge would prevent a self-identified homosexual from actually engaging in homosexual conduct, see dissent at 712, but its reasoning overlooks the point that such fears, if present, would presumably also have discouraged the initial statement, particularly if a person were unsure of his or her identification and its relationship to the military’s definition. Given that the military’s response is the same in each case — discharge—it is unclear why the dissent thinks the deterrent would affect only the later decision.
Even if the assumption that declared homosexuals will engage in homosexual conduct is reasonable in certain contexts, Steffán maintains that it is nevertheless impermissible for the military to act on that assumption; it implies that service members will engage in criminal misconduct — violate the Uniform Code of Military Justice. Steffan argues that suсh an assumption flies in the face of core traditions of American jurisprudence. Although Steffan’s argument has a certain superficial attractiveness, it seems to us that upon close examination it is more clever than real. First of all, the Academy regulations reach all homosexual conduct — a category of actions that may include conduct that is not illegal under the Code, which proscribes sodomy. More important, we think that when a service member declares or openly admits that he is a homosexual without any explanation, the Academy may rationally take that statement, at least for purposes unrelated to criminal enforcement, as highly likely to be an admission of homosexual conduct or intent. In a discharge proceeding, the Navy need not conduct an inquisition to test whether a particular midshipman possesses an idiosyncratic view of the term. When an individual’s statement can reasonably be taken to evidence a propensity to engage in certain conduct, the military may certainly take that individual at his word.
The authority Steffan presents to support his point does not bear on his case. Steffan principally relies on Jacobson v. United States, — U.S. —,
We have said that this is not a criminal case. It is also not a First Amendment case. Steffan was not discharged from the Navy because he expressed sympathy for homosexuals or because he openly opposed the Navy’s policy of banning homosexuals, nor has he claimed a First Amendment violation. (To be sure, even the First Amendment must yield at times to the exigencies of military life. Goldman v. Weinberger,
We recognize that the government’s policy — that homosexuals (using the ordinary meaning) may not serve in the armed
III. DOD Directives
A.
The DOD Directives use somewhat different wording to define a homosexual than does the Academy regulation:
Homosexual means a person, regardless of sex, who engages in, desires to engage in, or intends to engage in homosexual acts....
DOD Directive 1332.14.H.l.b.(l), 32 C.F.R. Pt. 41, App. A (1991) (superseded). Steffan’s lawsuit takes aim primarily at the Directives because the phrase “desires to engage in” is claimed to extend the definition of homosexual into the realm of a service member’s private thoughts. The DOD regulations are unconstitutional, Steffan argues, because they allow for the еxpulsion of service members on the basis of their inner feelings alone. They are irrationally overbroad — and thus fail rational basis review — because they define the class of excludable persons to reach those who merely harbor homosexual impulses, without requiring any indications that such impulses are likely to be reflected in admittedly impermissible homosexual conduct. Steffan’s complaint purports to challenge the Directives as applied and on then-face (although his brief is ambiguous on the point).
As we have noted, however, Steffan’s counsel agreed at oral argument that the Directives constitutionally could be applied to a service member who stated that he was a homosexual and who meant by the statement that he actually engaged in homosexual conduct. This concession, that some situations exist to which the Directives may constitutionally be applied, renders Steffan’s facial challenge defective. “[Ujnder our constitutional system courts are not roving commissions assigned to .pass judgment on the validity of the Nation’s laws.” Broadrick v. Oklahoma,
Where, as here, a statute or regulation has some concededly constitutional applications, a successful challenger must demonstrate that the statute is unconstitutional as “applied to the particular facts of [his] case.” Id. at 745 n. 3,
Normally, a case such as this would arise as an appeal from a military adjudication under the Administrative Procedure Act. The APA provides a right to review agency action only to those “adversely affected or aggrieved” by such action, see 5 U.S.C. § 702 (1988), and in order to establish a grievance resulting from the application of a regulatory term, a party would first have to show whether and how that term was appliеd to him. This is all the more so when the petition for review is based on a claim of unconstitutionality. Continental Air Lines, Inc. v. Department of Transp.,
Only on appeal (almost seven years after his resignation) did Steffan fix upon the “desires” language in the definition as the root of his legal difficulty. If the Navy’s procedures (which have not been brought before us) require internal appeal before resorting to collateral challenge, see Darby v. Cisneros, —: U.S. —, —,
Still, in making an as-applied challenge, it is Steffan’s burden — and the government does make this point — to show exactly how the Directives were applied against him illegally. Steffan seeks to meet this obligation by admitting that he entertains homosexual desires and arguing that such admission alone would be sufficient under the DOD Directives to cause his termination. The difficulty with Steffan’s inventive position, however, is that even under his theory of the case he would only have a constitutional claim if his statement had meant that he harbored homosexual desires and yet had neither engaged in or intended to engage in homosexual conduct. Otherwise, the desires portion of the definition would not have been crucial to his discharge.
Steffan insists that the Navy never alleged that he engaged in homosexual acts or intended to do so. That is true but, it seems to us, quite beside the point. After all, the Navy never alleged that Steffan had homosexual “desires.” Steffan openly admitted his homosexuality, and under the circumstances there was no reason for the Navy to proceed further. If Steffan had wished to explain that his admission was based only on his desires — and not his conduct or intentions — he could have done so and joined the issue. The government would have been obliged, in that event, either to rest on his explanation (more naturally, he would have been at least asked what he meant by “desires”) or to pursue further evidence of intent or conduct. In that manner, one could subsequently determine whether the Navy had relied on only the desires portion of the definition and therefore whether it had actually been applied to Steffan.
Indeed, the government in its brief before this court, while conceding that the word “desires” may be ambiguous “in isolation,” tells us that the Department of Defense interprets the term as “conduct related,” ie., bordering on intent, and referring to the actual “prospect of future acts.” If the Directives were interpreted in this way — notwithstanding their different language — to mean essentially the same as the Academy regulations, then, as we have already held, it would pass constitutional muster. If, instead, the word “desires” were interpreted to extend the definition of homosexual to persons not likely to engage in homosexual conduct, a different question would be presented; but Steffan has not indicated, in his framing of the case, that he is affected by that possible (if far-fetched) definition.
The dissent nevertheless argues that “nothing Steffan could have said before the Performance Board would have been remotely relevant to his predicament.” Dissent at 716-17. We simply do not understand how our colleagues can so conclude. Had Steffan responded “yes” to the question whether he was a homosexual but also said that he meant only that he entertained homosexual thoughts, it is not at all clear to us what the Board would have done. The Board might well have determined that under those circumstances it should enter a “further finding that the member is not a homosexual,” as the Directives contemplate. Or, the Board might then have sought to determine the parameters of the term “desires.” Does the term mean something close to an actual intent to engage in homosexual conduct or, as the original panel in this case concluded, mere “inclinations” and “fantasies.” Steffan v. Aspin,
Steffan was, moreover, amply represented by counsel (compare dissent at 717). If he believed that he was obliged to answer the question affirmatively solely because of the “desires” portion of the DOD Directives, it surely would have occurred to his counsel that the appropriate predicate for a constitutional challenge would include an explanation of what Steffan meant — and did not mean— by his answer.
As the record stands, Steffan has made no effort either in the Academy proceeding, in his subsequent letter to the Secretary of the Navy, or even in his suit in federal court to demonstrate how the Directives’ allegedly overbroad definition of homosexual was applied to him. Putting the proceedings before the Board aside, it seems to us that Steffan has no conceivable basis, once he came to federal court with a collateral challenge, for not stating in his allegations exactly how the “desires” portion of the Directives injured him. Steffan seeks to blur the distinction between an as-applied and a facial challenge; he wishes to attack the Directives at the point he believes they are weakest legally without shouldering the burden requisite to such an attack — a demonstration that the supposedly irrationally overbroad definition had a real impact on him. This he cannot do.
To be sure, as the dissent emphasizes, dissent at 717-18, this case has been before this court before. In Steffan v. Cheney,
We decidedly did not say that Steffan’s conduct prior to his dismissal was categorically irrelevant to the case; we expressly envisioned the possibility that conduct-related issues might be “relevant” on some “other ground.” Id. Neither we nor the district court even considered at that point whether Steffan had an obligation in making an as-applied challenge to indicate that his statement embracing homosexual status was not linked to homosexual conduct, or the intent to engage in that conduct.
The dissent’s assertion that “We also specifically rejected the government’s argument that because of a ‘rebuttable presumption’ or ‘celibate homosexual exception’ in the regulations, Steffan was presumptively cаught by the conduct or intent prongs of the regulation until he demonstrated otherwise,” dissent at 718, is simply not accurate, and therefore the dissent’s contention that we have reversed the prior panel decision is incorrect. Our entire treatment of the question was contained in the following footnote:
The Government now argues that Steffan’s admission of homosexuality raised a “re-buttable regulatory presumption that he had a prediliction [sic] to commit, and had committed, homosexual acts.” This argument, not raised in the district court, finds no support in the record.
Id. at 76 n. * (emphasis added). As we contemplated, the government, on remand, did present the argument in the district court, which is why the next time the case appeared before this court, see Steffan v. Aspin,
Alternatively, we think Steffan lacks standing to bring his particular challenge to the DOD Directives. Steffan may well have Article III standing, which requires only injury in fact (his termination from the Academy) that is fairly traceable to the Directives (assuming, for purpose of this section of our opinion, that the Directives rather than the Academy regulations were the basis for his termination). But a litigant must still pass through the prudential standing barrier, and Steffan does not. Prudential standing is of course, like Article III standing, a jurisdictional concept. Normally we would focus on that issue first before considering whether Steffan brought a viable claim. But in this case the two issues are quite intertwined; it is only after a careful dissection of Steffan’s claim that it also becomes apparent that he lacks standing to litigate the issue he wishes us to decide.
Absent certain limited exceptions — such as in the First Amendment context, see, e.g., Gooding v. Wilson,
The legal right or interest on which Stef-fan rests his claim for relief is a right against discharge (which he terms “punishment”) on the basis of his thoughts or “desires” — what he sometimes calls his “status.” That claim only vindicates his own rights or interests if Steffan’s discharge was, as we have noted, due solely tо his desires. If, on the other hand, Steffan had by his statement meant that he had actually engaged or intended to engage in homosexual conduct, so as to have qualified as a homosexual under the Directives irrespective of the “desires” clause, then his challenge to that clause would vindicate no cognizable interest of his.
In order for Steffan’s claim for relief to be based on the assertion of his own right or interest, then, the legal wrong he ultimately
Taking the last point first, Steffan, as we have already explained, never obliged the Navy to give the term meaning by applying it in an adjudication. Instead, he asks us to assume a meaning, one that is sufficiently expansive to raise a constitutional issue. Perhaps, if the word “desires” had an obvious interpretation in this context Steffan’s claim might be defensible, but as oral argument made clear, that is hardly so. The possible meanings stretch from a publicly expressed passion (which would seem to be practically indistinguishable from intent) to a fleeting private imagining. Steffan does not simply ask us to speculate as to the Navy’s understanding, which would itself be inappropriate — he would have us provoke, rather than avoid, a possibly difficult constitutional issue.
Turning to Steffan — his experiences, his knowledge, and his state of mind when he answered the fateful question affirmatively— the crucial gap in his allegations is the absence of any claim that as of the time he answered he had not engaged or intended to engage in homosexual conduct. If he had, the military would have been entitled even under his constitutional theory to terminate him from the Academy. For under such circumstances, his desires would not be independent of conduct and therefore of no particular relevance to the military — or to him— when he answered the question. Steffan’s causal argument implicitly is that he, not the Board, interpreted the Directives to oblige him to answer the question “Are you a homosexual?” affirmatively, but that claim is not plausible or logical unless at the time Stef-fan’s only reason for answering yes was his desires. Understandably, Steffan has never suggested that he meant only that he harbored homosexual desires and that by desires he referred to something so removed from an intention as to constitute a pure thought. For that matter, he does not claim that he had even heard of the definition of homosexual in the DOD Directives. In sum, Steffan has not even attempted to trace his injury to the legal infirmity in the regulations he would have us address.
Steffan would have us rule on a delicate question of law in what is, in truth, a hypothetical case. For all the record shows, and for all the pleadings reveal, Steffan declared himself to be a “homosexual” because he in fact engaged in homosexual conduct. As applied to such facts, the regulations would be, by Steffan’s own admission, constitutional. Were the military to discharge someone on the basis of a statement that the member was “homosexual,” and were that member to indicate that he had neither engaged nor intended to engage in homosexual conduct, that person would be an appropriate plaintiff to bring a case focusing on the constitutionality of the “desires to engage in” clause in the Directives. This is not such a case.
So ordered.
Notes
. The Academy regulations found in the record postdate Steffan’s separation from the Academy. The parties agree, however, that these regulations are identical, so far as relevant to this appeal, to the version existing at the time of the events giving rise to Steffan’s suit.
. A panel of this court reversed the district court decision in Steffan v. Aspin,
. We dismiss Steffan's oblique suggestion, made only in a sketchy footnote and apparently abandoned during oral argument, that heightened scrutiny should be applied because homosexuals constitute a "suspect class” under the Supreme Court's test for identifying such classes. See Padula v. Webster, 822 F.2d 97, 103-04 (D.C.Cir. 1987). As we explained in Padula, if the government can criminalize homosexual conduct, a group that is defined by reference to that conduct cannot constitute a "suspect class.” See id. Indeed, Steffan as much as concedes the point by agreeing that the military can ban those who engage in homosexual conduct.
. See Dronenburg v. Zech,
. The regulations state that homosexuality "limit[s] a midshipman’s aptitude and potential for commissioned service" (emphasis added), which might suggest that it would be particularly troublesome for an officer to be a declared homosexual. But the government at oral argument expressly denied that the regulations were crafted with any specific concern for officers. In light of Goldman's admonition that we owe special deference to the "considered professional judgment" of the military officials, we do not think it open to us to draw any distinction between officers and enlisted members.
. The Board discharged Steffan solely on the basis of his admission of homosexuality. Thus, the dissent’s claim that a Naval Investigative Service inquiry into Steffan’s conduct led to “no evidence” of homosexual activity is misleading. See dissent at 701 n. 1. Steffan actually rеfused to answer conduct-related questions; for purposes of discharge, the Navy presumably would have been justified in drawing adverse inferences as to Steffan’s conduct from this refusal. Baxter v. Palmigiano,
. In Meinhold v. United States Dept. of Defense,
The Ninth Circuit accepted Meinhold’s characterization that the class of persons at issue was those "who say they are gay but have not acted in accordance with their propensity in the past.” In our view, however, the proper characterization of the class is persons who say they are gay, but as to whom the military has no additional evidence as to their conduct. The Meinhold court also did not consider the rationality of treating all persons who identify themselves as homosexuals as likely violators of the prohibition on homosexual conduct.
. The dissent would also distinguish Beazer on the basis of the district court's findings that some
. Classifications based on race or religion, of course, would trigger strict scrutiny.
. The dissent mistakenly asserts that our view on this issue is contradicted by the DOD Directives and the government's position in Selland v. Aspin,
. Lambda, the gay rights organization representing Steffan, appeared as amicus in Bowers. Arguing against the constitutionality of criminalizing homosexual sodomy, it asserted that the “regulation of same sex behavior constitutes the total prohibition of an entire way of life” because homosexuality is inexorably intertwined with "homosexual conduct.” See Amicus Curiae Briеf on Behalf of Respondents by Lambda Legal Defense and Education Fund, Inc. at 23, n. 28, Bowers v. Hardwick,
. The dissent’s reliance on Robinson v. California, supra, is also misplaced. The Court’s holding in that case that a state statute criminalizing the "illness” of narcotics addiction was cruel and unusual punishment bears little legal or factual similarity to this case. The Robinson Court had no occasion to consider the rationality of an employment decision based on statements from which the probability of future conduct can easily be inferred.
. The other cases relied on by Steffan are similarly inapposite. Noto v. United States,
.As we have said, however, the Navy’s presumption of homosexual conduct does not necessarily imply illegal acts, i.e., sodomy. Although the dissent implies that there may be significant distinctions, see dissent at 705-06 n. 8, Steffan, for his part, never distinguished in his concession between sodomy and other homosexual conduct.
. As a sex-based classification, separate quartering for men and women would be reviewed under the more stringent intermediate-level equal protection standard.
. While the Fourth Circuit did supplement its First Amendment analysis in Gay Alliance of Students v. Matthews,
. Because we find the Academy regulations rationally justified on these grounds, we see no need to discuss other possible rationales presented by the government or that we might conceive.
. Paradoxically, the court proceeded to advance its own interpretation of the "desires” language of the DOD Directives, concluding that — in order to avoid a supposed but not clearly identified constitutional issue — it must mean that a statement of homosexuality “mandates separation only when that statement should be interpreted as portraying a concrete, expressed desire to commit homosexual acts." Then, in an extraordinary reversal of the role of an appellate court, the Ninth Circuit determined, without remand to the Department or the district court, that as a matter of fact Meinhold's statement manifested no such "concrete" desire under the circumstances (presumably because made on national television). Id. at 1479.
. Our conclusion does not depend on the existence of a so-called “celibate homosexual exception." On this record, we cannot determine whether the government would have formulated
. Standing can be raised at any point in a case proceeding and, as a jurisdictional matter, may be raised, sua sponte, by the court.
. In fairness to Steffan, his counsel vigorously disputed that the term “desires” could have such a meaning. But see Meinhold,
. The dissenters disagree with our conclusions on the constitutionality of the regulations and insist that Steffan was wrongly discharged. They presumably also dissent from the implicit denial of relief. And yet they do not decide the question
. The government at no time put forth the majority's novel argument that Steffan had failed to exhaust his administrative remedies because the BCNR or some other agency could have granted relief by finding that some individuals who state “I am a homosexual" do not fit the Navy’s definition of "homosexual.” Maj. op. at 695. To the contrary, the government made clear that if Stef-fan were reinstated to the Academy, he would then “undoubtedly” be discharged. They wrote: "Officers who admit that they fit within the Navy's regulatory definition of homosexuality are inevitably discharged_ The regulation requires discharge in all cases.” Steffan,
The Ninth Circuit, in Meinhold v. U.S. Dep’t of Defense,
Concurrence Opinion
concurring in part:
I join all of the court’s opinion, except part IIIB, which holds that Steffan did not have standing to challenge the constitutionality of the Department of Defense regulations.
Steffan has never pinpointed where on the continuum between homosexual conduct and mere homosexual thoughts he placed himself at the time of his “constructive” discharge. He treats the matter as irrelevant. Our opinion in Steffan v. Cheney,
First, Steffan’s allegation is aimed at what the military officials had in their collective minds, not what Steffan had in his. Given the posture of the ease, the majority opinion’s list of “facts that would have to be true” for Steffan to have standing — whether Stef-fan read the regulations, whether he had some particular definition in mind when he said he was a homosexual, whether (unknown to officials at the Academy) he had engaged in homosexual conduct — seem to me beside the point. It is the military’s grounds for decision that are decisive. “The grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based.” SEC v. Chenery Corp.,
The second point is more significant. Stef-fan has not established, and in my view cannot establish, that the military constructively discharged him only because of what he calls
Concurrence Opinion
concurring in part, dissenting in part and concurring in the judgment:
The Supreme Court has held time and again that “[t]he judicial power of the United States defined by Art. Ill is not an unconditional authority to determine the constitutionality of legislative or executive acts.” Valley Forge Christian College v. Americans United For Separation of Church and State,
As this case comes to us on appeal, Joseph Steffan challenges only the constitutionality of the Department of Defense Directives promulgated in 1991. Steffan clearly states in his brief that his complaint is that he “was discharged from the [Naval] Academy pursuant to servicewide regulations promulgated in 1981 as part of Department of Defense Directives 1332.14 and 1332.20.” Because Steffan does not challenge the Academy’s own separate regulation concerning homosexuality, I do not believe that the court should address that regulation, much less render a constitutional decision concerning it.
The constitutionality of the Academy’s regulation is an important question that ought not be addressed until a litigant who actually claims to have been injured by its application comes before the court. As he has framed
Insofar as Steffan has brought before the court his attack upon the constitutionality of the DOD directives, I agree with Judge Sil-berman that Steffan does not have standing to sue and that he may not bring a facial challenge to those regulations. I therefore join in Part III.B of Judge Silberman’s opinion and concur in the judgment of the court.
Dissenting opinion filed by Circuit Judge WALD, with whom Chief Judge EDWARDS and Circuit Judge ROGERS join.
Dissenting Opinion
dissenting:
From the beginning, the central issue presented by Steffan’s case has always been whether the military may constitutionally exclude from membership in the services individuals who admit to homosexual orientation, without any evidence of homosexual conduct or intent to engage in such conduct. Today’s majority reformulates Steffan’s appeal to avoid this critical issue. Through ingenious but totally unjustified uses of presumptions and inferences, the court seeks to transform Steffan’s case into one concerning homosexual conduct — when in fact the Navy has never even alleged that Steffan engaged or intended to engage in such conduct. See Majority opinion (“Maj. op.”) at 695.
The linchpin of the court’s transformation strategy is its assertion that “a statement that one is a homosexual” may be “used by the Navy as a proxy for homosexual conduct — past, present, or future.” Maj. op. at 688. We disagree in the most fundamental way with that claim, and believe that in the military context, where homosexual conduct results in automatic discharge or imposition of criminal sanctions, it is inherently unreasonable to equate an admission of homosexual identity with commission of or intent to engage in homosexual conduct. Thе in banc court’s attempt to recast the case to avoid the issue that the parties, the trial court, and the original panel opinion have identified as at the core of this litigation must ultimately fail. The critical issue posed in the starkest fashion by Steffan’s case is whether a member of the armed forces may be discharged on the sole basis of an admission of his homosexual orientation. We believe that he may not and we therefore dissent.
I. BACKGROUND
This case has a long and complicated history. The majority’s summary of that history is incomplete and in important respects misleading. A fair appraisal of the competing constitutional positions demands a more thorough exposition of the underlying events and earlier stages of this litigation.
In 1983, Joseph Steffan enrolled in the United States Naval Academy. During his four years there, his superiors variously praised him as “gifted,” “professional,” an “outstanding performer” who “exhibited excellent leadership,” and an “asset to the Academy.” None questioned that he would “undoubtedly make an outstanding naval officer.”
In February 1987, less than three months before Steffan was scheduled to graduate from the Academy, the Naval Intelligence Service (“NIS”) received a report alleging that Steffan had told two fellow students that he was homosexual. The NIS began an inquiry that continued until June 16, 1987. The final report from the NIS investigation found no evidence of homosexual conduct on the part of Steffan.
In mid-March, Steffan learned of the NIS investigation from another midshipman. He
Several days later, Steffan himself approached Captain Habermeyer with a special request to see the Superintendent. Steffan explained that he wished to tell the Superintendent personally of his desire to graduate with his class in June. Captain Habermeyer asked Steffan, “Are you willing to state at this time that you are a homosexual?” Stef-fan responded, “Yes, sir.” Captain Haber-meyer informed Steffan that he would not recommend approval of his request, and that he “seriously doubted whether [the Superintendent] would permit [Steffan’s] completion of his course of study to receive his diploma.”
The following day, March 24, Captain Ha-bermeyer convened a Brigade Military Performance Board to review Steffan’s situation.
On March 26, thе Commandant referred Steffan’s case to the Academic Board, "with the recommendation that “Midshipman Stef-fan be separated from the Naval Academy due to insufficient aptitude for commissioned service.” On April 1, the Board convened. It urged Steffan to “accept a qualified resignation in lieu of discharge.” Steffan gave a brief prepared statement in which he asked that he be allowed to graduate. The Board then voted unanimously to recommend discharge to the Superintendent.
That same day, the Superintendent advised Steffan that he intended to recommend Steffan’s discharge to the Secretary of the Navy. The Superintendent, however, exercised his authority to permit Steffan the option of submitting a qualified resignation; he stated that if Steffan did so, he would forego submitting a recommendation of discharge.
Also on April 1, Steffan met with the Academy Performance Officer, Major Funk, whose duty it was to counsel midshipmen faced with the choice between qualified resignation and discharge. Major Funk stated that discharge would require noting Steffan’s admission of homosexuality on his record. Major Funk expressed his opinion that Stef-fan’s job prospects would suffer from such a notation. He repeated the Academic Board’s urging that Steffan resign rather than wait to be discharged.
On December 9,1988, Steffan wrote to the Secretary of the Navy, requesting permission to withdraw his resignation and graduate from the Academy. The Secretary referred the matter to the Superintendent of the Academy, who “strongly” recommended denying Steffan’s request. He stated that because “Mr. Steffan admitted to being a homosexual” he “had insufficient aptitude to be a commissioned officer.” In accordance with this recommendation, the Secretary disapproved Steffan’s request.
Steffan filed this action on December 29, 1988. He requested a ruling that “the regulations pursuant to which the Naval Academy acted are unconstitutional ...” on the ground, inter alia, that the government had denied him equal protection under the Due Process Clause of the Fifth Amendment by forcing him to resign after a determination of “‘insufficient aptitude’ predicated solely on [his] sexual orientation.” The complaint did not specify which regulations were at issue. Indeed, several colloquies between this court and counsel for both Steffan and the Secretary during oral argument in banc demonstrate that neither Steffan nor the government were certain precisely which regulations authorized the Navy’s “processing” of Steffan. The majority correctly notes that “at various times different bodies within the military hierarchy relied on either [the Naval Academy’s own regulations] or [a Directive promulgated by the Department of Defense], or both.” Maj. op. аt 684.
Steffan’s legal attack precipitated a flurry of opinions in the district court and in this court. In the first round, Steffan v. Cheney,
The government also argued that Steffan had failed to exhaust his administrative remedies. It claimed that if Steffan’s resignation were truly involuntary, the Board for Correction of Naval Records (“BCNR”) could afford him “complete relief by reinstating him back into the Academy.”
A second district court Opinion, Steffan v. Cheney,
In a per curiam opinion, this court (JJ. Wald, Ginsburg and Randolph) reversed and remanded. Steffan v. Cheney,
On remand to the district court, the government and Steffan cross-filed for summary judgment. The district court, in Steffan v. Cheney,
The district court was more precise, however, concerning the focus of the case. Alluding to our earlier holding that Steffan’s conduct was irrelevant to this case, Steffan,
Steffan appealed. His brief to the panel stated the principal issue to be “[w]hether the military regulations that exclude persons from the armed services solely on the basis of their status as homosexuals ... violate the constitutional guarantee of equal protection of the laws.” Appellant’s Brief at 1, Steffan v. Aspin,
The panel unanimously reversed the district court’s judgment, and ordered Steffan reinstated in military service, graduated from the Academy, and commissioned in the Navy. Steffan v. Aspin,
The panel emphasized that because the “district court [had] acknowledged that Stef-fan was discharged solely because of his status as a homosexual,” the critical issue in the case concerned the constitutionality of excluding from the serviсes a “class [of individuals] ... defined by homosexual orientation, not conduct.” Id. at 63. The panel declined to consider whether homosexual orientation constitutes a suspect classification for purposes of equal protection analysis; instead it rejected the district court’s reasoning that the government may rationally infer from a serviceman’s admission of “homosexuality”— defined by the Directives to include mere “desires” — a “propensity” to engage in repeated homosexual conduct so as to justify separation.
The government determined to forego appeal of the panel’s decision on the merits. Instead, the government asked this Court to consider in banc whether that portion of the panel’s remedial order that required Steffan to be commissioned as an officer, see Steffan, 8 F.3d at 70, violated separation of powers principles. This court voted sua sponte to rehear Steffan’s entire case, including the merits, in banc. This extraordinary measure brought this case back before us for a fourth time.
II. Analysis
A. The Importance of Steffan’s Concession
The majority declares that Steffan’s concession that “the military may discharge those who engage in homosexual conduct whether on or off duty”
B. The Issue Presented by this Case: Discharge for Orientation
The majority disposes of Steffan’s appeal by transforming his unadorned admission of “homosexuality” from a statement of homosexual orientation into a declaration of past or intended homosexual conduct, thus avoiding the difficult question this case actually presents: whether an individual may be constitutionally discharged from the military on the sole basis of an admission of homosexual orientation. This alchemy is not, of course, an original idea — the government has argued from the outset that an admission of homosexuality both raises a “presumption” of past homosexual conduct and indicates a “propensity” to engage in future homosexual conduct. The policy of excluding from the ser-viees all who profess homosexual orientation is thus — according to the government — just a way of regulating conduct.
Today’s majority, in contrast to the Ninth Circuit’s recent decision in Meinhold v. U.S. Dep’t of Defense,
C. Both Sets of Regulations Present the Same Issue
We begin our analysis by emphasizing that although Steffan was “processed” under two sets of regulations — the Department of Defense Directives and the Naval Academy’s own regulations — both present the same constitutional issue. Indeed, although the court’s new emphasis on the Navy regulations and the bifurcated structure of its opinion might suggest otherwise, the crux of its argument is the same as to both sets of regulations. It is a “Heads, we win, Tails, you lose” proposition for Steffan, but ultimately a frolic and detour in terms of constitutional analysis.
The relevant portions of the Department of Defense Directive in effect at the time of Steffan’s discharge read:
H. Homosexuality
1. Basis
a. Homosexuality is incompatible with military service. The presence in the mili*707 tary 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 among servicemembers; to ensure the integrity of the system of rank and command; to facilitate assignment and worldwide deployment of servicemembers who frequently must live and work under close conditions affording minimal privacy; to recruit and maintain members of the Military Services; to maintain the public acceptability of military service; and to prevent breaches of security.
b. As used in this section:
(1) Homosexual means a person, regardless of sex, who engages in, desires to engage in, or intends to engage in homosexual acts;
(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.
c. The basis for separation may include preservice, prior service, or current service conduct or statements. A member shall be separated under this section if one or more of the following approved findings is made:
(2) The member has stated that he or she is a homosexual or bisexual unless there is a further finding that the member is not a homosexual or bisexual.
DOD Directives 1332.14 and 1332.30, 32 C.F.R. Part 41, App. A (1991).
The Navy regulations provide that midshipmen who “possess certain traits which are undesirable in commissioned officers” “may be processed for separation in accordance with this instruction.” United States Naval Academy Regulation, COMDTMIDN Instruction 1610.6Í Ch-2.15.1 (July 16, 1987). They go on to list a number of “problems ... sufficient in and of themselves to warrant separation from the Naval Academy.” Id. at Ch-2.15.3. Among these “problems” is:
e. Homosexuality. The basis for separation may include previous, prior service or current service conduct or statements. Homosexuality includes the member engaging in, attempting to engage in or soliciting another to engage in a homosexual act or acts. It also includes statements by the member that he or she is homosexual or bisexual, or the member marrying or attempting to marry a person known to be of the same biological sex.
Id. at Ch-2.15.3.c. The Navy regulations contain no further definition of “homosexual.”
The court devotes the bulk of its opinion to the Navy regulations. The majority offers two different theories by which to equate Steffan’s bare-boned statement of “homosexuality” with past or intended homosexual conduct. First, it says the Navy could properly have concluded from Steffan’s statement that he was “likely” to engage in homosexual conduct in the future. Maj. op. at 685-86.
The court’s disposition of Steffan’s challenge to the DOD Directive is basically the same. First, the court contends that Stef-fan’s “as-applied” challenge to the regulations fails because the Navy was entitled to infer “conduct” or “intent” from his admission of “homosexuality”; he therefore has not shown affirmatively that the “desires” prong of the regulation — the prong Steffan claims is unconstitutional “as applied” — was ever actually “applied” to him. Maj. op. at 693-96. Second, Steffan lacks “prudential standing” because if the Navy discharged him on the basis of “conduct” or “intent,” inferred from his statement, then he was not harmed by the “desires” (or “orientation”) portion of the regulation.
D. Rationality Review
A government action that burdens individuals unequally but does not implicate a fundamental right or burden a “suspect” or “quasi-suspect” class is subject to “rational-basis” or “rationality” review. Rationality review requires, “at the minimum,” that legislative classifications must be “rationally related to legitimate governmental objectives.” See, e.g., Schweitzer v. Wilson,
Thus certain kinds of motivations or justifications for discriminatory government behavior have been found categoriсally “irrational.” For example, government actions depriving individuals of the equal protection of the laws on the sole basis of invidious prejudice or unreasoned antipathy can never be deemed “rational.” See City of Cleburne v. Cleburne Living Center, Inc.,
The limited role that the courts continue to exercise under rationality review thus remains a significant bulwark against unreasonable and illegitimate classifications. When government action deprives individuals of the equal protection of the laws for arbitrary reasons, or for reasons founded solely upon irrational and invidious prejudices, a court must declare the action unconstitutional under rational-basis review. Cleburne,
At the same time, however, rationality review imposes no burden on the government to make any particularized justification of its behavior. So long as the action taken is in fact reasonable, the government need not make findings or produce evidence to support its decision. Heller v. Doe, — U.S. at —,
The presence of a military branch as defendant in equal protection litigation does not eviscerate the courts’ role. It is certainly true that we accord great deference to the judgment of military decisionmakers within their areas of expertise. For example, in Goldman v. Weinberger,
Steffan’s case presents quite a different picture, however. Steffan has conceded, “for today,” that keeping individuals who engage or intend to engage in homosexual conduct out of. the military is a “legitimate” interest. The issue here is thus limited to whether the government may “rationally” infer past or future conduct from Steffan’s admission of “homosexuality.” The military has no special competence to decide this question. To the contrary, reviewing the “rationality” of such inferences — with attendant legal consequences — drawn from status to conduct falls more proрerly within the expertise of the courts. Such analyses are an important part of our work. See, e.g., Aptheker v. Secretary of State,
We must, however, take issue with the majority’s assertion that we hold the mistaken view that “the government’s position is weakened if it does not produce evidence to support (‘demonstrate’) its regulatory proposition.” See Maj. op. at 685, 689-90. No such thing. Our position is that the inferences drawn in the regulations are not in fact rational ones — we do not rely on any argument that the government has failed to support them with evidence. In particular, as we explain in greater detail later, there are fundamental impediments deeply rooted in our constitutional jurisprudence that will not permit the government to treat a service-member’s statement of homosexual identity as a proxy for proscribed homosexual conduct. Governmental actions predicated on such a presumption must therefore fail rational-basis review, quite apart from eviden-tiary disputes. That the government has never tried to demonstrate — either in this case or in any other ease upon which the majority relies — that its inference of homosexual conduct following from an admission of orientation is rooted in “realit[y],” see Heller v. Doe, — U.S. at —,
Although the questions of whether the Navy may infer past or future homosexual conduct from an admission of homosexuality are closely related, the history of this case requires that we address them separately. Inferring future homosexual conduct from an admission of homosexuality presents the now-familiar “propensity” issue — whether the admission itself indicates that an individual will “one day” actually engage in proscribed homosexual conduct.
We address this question in three parts. Initially, because the majority’s analysis rests almost entirely on its untenable conflation of homosexual status and homosexual conduct, see Maj. op. at 689-90, we emphasize that this view has been rejected both by the military itself and by expert authority. We then demonstrate that, particularly in the military, there is no “rational connection” between orientation/status and conduct as a factual or experiential matter. Finally, we point out that even if a rational connection between these concepts could be shown, the Constitution prohibits presuming, on the sole basis of an admission of homosexual status, that a servieemember will “one day” violate military regulations governing sexual conduct.
1. Military and Expert Recognition of the Orientation/Conduct Distinction
The military itself recognizes a fundamental distinction between homosexual orientation and homosexual conduct. The DOD Directives under which Steffan was separated expressly distinguish between them:
Homosexual means a person, regardless of sex, who engages in, desires to engage in, or intends to engage in homosexual acts....
DOD Directive 1332.14(H)(l)(b)(l). Because the Directives’ inclusion of individuals with homosexual “desires” — as distinct from those who engage or intend to engage in homosexual conduct — would otherwise be wholly redundant, the Directives clearly embrace an orientation/conduct distinction.
Second, an orientation/conduct distinction is found in the Secretary’s interpretation of the very DOD Directives under which Stef-fan was separated. In his brief to the in banc court, the Secretary acknowledges that under these regulations status ought not be conflated with conduct. He counsels the court not to read the regulations to require discharge in every case when a servicemem-ber states that he is a homosexual. Instead, the Secretary asks us to read into the regulations a “rebuttable presumption” for celibate homosexuals.
Third, the military’s recognition of the distinction between homosexual orientation and conduct rises to a full-blown status in the Secretary’s newest policy on homosexuals in the military. On July 19, 1993, after Stef-fan’s separation, the Secretary issued a memorandum to the Defense Department command structure, stating:
[I]t is the policy of the Department of Defense to judge the suitability of persons to serve in the armed forces on the basis of their conduct. Homosexual conduct will be grounds for separation from the military*711 services. Sexual orientation is considered a personal and private matter, and homosexual orientation is not a bar to service entry or continued service unless manifested by conduct.
Department of Defense, “Policy on Homosexual Conduct in the Armed Forces,” cited in Brief for Appellee, Addendum at 1, Stejfan v. Aspin,
Particularly in light of this change in the military’s stance toward homosexuality per se — which we must assume represents the result of the military’s best reasoning and experience
Indeed, several recent court decisions have criticized this position of the majority and the cases on which it relies, see, e.g., Ben-Sha-lom v. Marsh,
Similarly, the court in Equality Foundation of Greater Cincinnati v. Cincinnati,
2. The Lack of Any “Rational” Factual Connection Between Orientation and Conduct
Given, then, that homosexual orientation and conduct are analytically distinct concepts, the “propensity” question reduces to whether an admission of homosexuality alone, without elaboration of any kind, may rationally give rise to an inference that a particular individual will “one day” engage in homosexual conduct, regardless of the inhibitions of his or her environment. Neither the majority nor the government offers any indication that such a presumption is rooted in reality. The government’s brief baldly claims that there is a “sound factual connection between the proved and inferred facts,” Appellees’ Brief at 15, but offers no further support for this proposition. At oral argument, the government repeatedly relied on the incantation that the “nature of human sexuality” supported the inference. In Banc Transcript at 49, 55, 62, 68. The majority, for its part, simply declares: “[W]e are persuaded that in this case the correlation is more than sufficient to justify the government’s policy.” Maj. op. at 688.
We are not “persuaded.” The government’s contention in this case smacks of precisely the sort of stereotypical assessment forbidden by Stanton and Reed, see swpra at 688; at bottom, the government and the majority seem to be saying that gay service-members — unlike heterosexuals — must be presumed incapable of controlling their sexual “desires” in conformity with the law.
The irrationality of the government’s inference is particularly patent in the military, where homosexual conduct is grounds for automatic discharge and, in the case of homosexual sodomy, punishable by incarceration. Indeed, it is much more reasonable to infer that a servicemember who admits to “homosexuality” will thereafter assiduously forego homosexual conduct. After all, servicemem-bers are surely aware that statements of homosexual orientation or desire will trigger close scrutiny of their subsequent behavior for evidence of homosexual “conduct” or “intent,” as indeed occurred in Steffan’s case.
The Ninth Circuit is in agreement with this view, and has interpreted the regulation at issue here as not reaching simple, unadorned admissions of homosexuality. In so doing, it cited numerous inconsistencies in the military’s position that raised, in the court’s view there, serious doubts about the “rationality” of the same inference urged upon us here. In Meinhold,
The Meinhold court also observed that the military’s “propensity” inference treated homosexuals and heterosexuals differently for no reason. Judge Rymer wrote:
Although courts defer to the military’s judgment about homosexual conduct, and classifications having to do with homosexuality may survive challenge if there is any rational basis for them [citations omitted], at least a serious question is raised whether it can ever be rational to presume that one class of persons (identified by their sexual preference alone) will violate regulations whereas another class (identified by their preference) will not.
Id. at 1478. It is telling that the majority does not seriously attempt to distinguish Meinhold, but rather limits its criticism of the holding to two points of secondary importance. See Maj. op. at 687 n. 7 (definition of the class of persons at issue) & 694 (exhaustion of remedies).
3. The Constitution Prohibits Inferring Proscribed Conduct
Finally, and most fundamentally, presuming that servicemembers who admit to homosexual orientation will inevitably violate military regulations conflicts with bedrock principles of our legal and constitutional order. For that reason, it is inherently irrational.
The Supreme Court has repeatedly emphasized that even prior conduct does not demonstrate a “propensity” to engage in the same actions after they later become illegal. See, e.g., Jacobson v. United States, — U.S. —,—,
The “constitutional heritage” to which Justice Marshall referred in Stanley is evident in the evolution of the law of treason. Under a statute of Edward III, it was a crime to “compass or imagine the Death of ... the King.” Statute of Treasons 25 Edw. III. This became the crime of “constructive treason,” which was enforced against supposed “compassers” and “imaginers” even when no overt act (other than mere words) or agreement corroborated an intent to carry out the regicide. See, e.g. Case of Thomas Burdet, 79 Eng.Rep. 706 (1477); Trial of Sir John Perrot, 1 How.St.Tr. 1315, 1318 (1592); Trial of Thomas Hardy, 24 How.St.Tr. 199, 894 (1794) (all cited in Watts v. United States,
Our Constitution expressly repudiates constructive treason. Article III, section 3 declares: “treason against the United States Shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.” U.S. Const, art. Ill, § 3 (emphasis added). The restrictions imposed by our Constitution, limiting the definition of treason to particular conduct and requiring an “overt act” for conviction, express the fundamental constitutional principle that a person’s thoughts are his own—
This same principle was accepted even in the cases that upheld the Smith Act’s broad proscriptions of subversive activities. Despite the nation’s widespread fears of Communist threats to overthrow the state, the Supreme Court never allowed prosecutions merely for private Communist sympathies. For example, in Scales v. United States,
Similarly, in Dennis v. United States,
Thus, even Cold War fears of internal subversion could not induce the Supreme Court to countenаnce the kind of presumption that the government argues and the majority adopts here — an inference of future misconduct on the basis of an admission of inchoate “desire,” unaccompanied by any specific intent to engage in misconduct. Such an inference is repugnant to time-honored legal principles that guard the sanctity of a person’s “thoughts and desires” against governmental control.
Indeed, numerous circuits have already applied this axiom to homosexual status in the context of gay and lesbian student groups denied recognition by state universities. The universities argued that because such organizations would encourage homosexuals to congregate and fraternize, they would facilitate the commission of criminal acts — homosexual sodomy or “deviate” sex acts. See Gay Students Org. of Univ. of New Hampshire v. Bonner,
The majority’s attempt to analogize this ease to Massachusetts Bd. of Retirement v. Murgia,
To put the argument plainly, there is nothing a blind or tall person can do to negate those characteristics that disqualify him from military service. There is no will power that will spare an aging person the eventual loss of physical ability. And certainly there is no way that these people merely by conforming to the law can qualify for military service. But a servicemember who has homosexual desires can; he need only refrain from engaging in prohibited homosexual conduct, and by the Navy’s own admission he will be as “fit” as the next person.
The majority’s citation to New York Transit Authority v. Beazer,
Stripped down, the majority’s distinction is constitutionally unpalatable. Any government action with serious civil or economic consequences for an individual admitting homosexual (as opposed to heterosexual) “desire,” predicated on the assumption that only the homosexual individual will violate government regulations prohibiting certain behavior, is equally defective.
F. Inferring Past Conduct From an Admission of “Homosexuality”
The majority advances the alternative position that the Navy could — on the basis of Steffan’s admission of “homosexuality” — discharge him for past conduct, quite apart from any “propensity” to engage in future conduct. In our view, any assumption of past conduct from such an admission is subject to all the same objections made against inferring “propensity” to future conduct. And more.
A rational connection between an admission of “homosexuality” and homosexual conduct is equally lacking whether the conduct inferred is past or future; and our Constitution prohibits the government from drawing that inference in either case. The Supreme Court’s ruling in Robinson v. California— holding unconstitutional a state’s attempt to criminalize narcotics addiction in absence of proof of use — did not hinge on whether California anticipated future use or suspected past use.
The majority’s assertion that the Navy may infer that Steffan “admitted” past conduct when he acknowledged his “homosexuality” is just another variation on the same old theme — twice rejected by this court at earlier stages of this case — that the Navy can “presume” past conduct from his statement, which he is then required to explain away. The majority would place the “burden” on Steffan to have explained what he meant by “homosexual” when he first answered “yes” to the government’s inquiry as to whether he was one, and conclude that because he failed to carry that burden, he “really” meant that he had engaged in homosexual conduct. This theory is unacceptable constitutionally, rationally, and indeed borders on sophistry.
It is, moreover, inconsistent with the regulations under which Steffan was “processed.” The court seems unable to grasp that there was, under any reasonable reading of the regulations, no “burden” that Steffan could possibly have carried to forestall discharge— and therefore no “presumption” or “inference” of past conduct that could have arisen from his silence. Indeed, nothing Steffan could have said before the Performance Board would have been remotely relevant to his predicament.
The majority does not offer even a color-able explanation why this catch-22 predicament was not controlling in Steffan’s case. It argues only that if an individual who admits to being a “homosexual” goes on to explain in detail what he means by “homosexual” in his own case then the military might find that he is not a “homosexual” after all. See Maj. op. at 695. It never points to any authority under the old regulation that might have given rise to such a “hope.” Far from being “rational,” the argument is decidedly circular.
The majority’s error is thus one of 20/20 hindsight. As a court deciding a thorny appeal, we might well wish that Steffan had himself articulated the constitutional issue at his original hearing. But Steffan was not a court, nor even an attorney planning a constitutional appeal. He was a midshipman, a man who had dedicated four years to a career in the Navy, and he wished to remain in the Navy. Yet he knew that having once admitted his homosexuality, nothing he could say would keep him in service, unless it led ultimately to the determination that he was not a homosexual. By the plain language of the DOD Directive, no amount of emphasis on the word “desire” would do that. He therefore, quite understandably, said nothing further. The government cannot later— whether two years later, in district court, or seven years later in today’s majority opinion — inform Steffan that because he remained silent when further explanations would have been of no avail, his admission of homosexuality became, presumptively, an admission of conduct. It would be the worst kind of due process deprivation to retroactively apply a “presumption” or “inference” not even plausibly suggested by the regulations at the time.
This court has already recognized this fact by rejecting the government’s earlier arguments that Steffan’s discharge involved homosexual conduct. In Steffan v. Cheney,
Law of the case principles normally require a court to avoid thus disavowing an earlier “legal decision ... unchallenged in a subsequent appeal when the opportunity to do so existed.” Williamsburg Wax Museum, Inc. v. Historic Figures, Inc.,
G. Effect on Morale, Discipline, and Recruitment
Because the majority concludes that Stef-fan was properly discharged based on an inference of past or future homosexual conduct drawn entirely from his admission of homosexuality, it does not address the legitimacy of other justifications — unrеlated to conduct — offered by the government. Under rationality review the regulations pass constitutional muster if any rational basis can justify his discharge. See Heller v. Doe, — U.S. at —,
The first justification offered by the DOD Directive itself is that the mere presence of homosexuals, even those who admit only homosexual orientation or “desire,” will have a negative impact on morale, discipline and the recruitment of new servieemembers. The Directives state, in part:
Homosexuality is incompatible with military service. The presence in the military environment of [homosexuals, later defined to include mere “desirers”] ... adversely affects the ability of the Military Services to maintain discipline, good order, and morale; ... [and] to recruit and retain members of the Military Services....
DOD Directive § H.l.a.
The argument appears to be that even if military policymakers did not make the irrational inference that servieemembers who admit homosexual orientation engage in homosexual conduct, the military could nonetheless exclude those servieemembers on the ground that heterosexual servieemembers would be appalled at the requirement that they serve alongside openly gay soldiers— even those who neither engage in homosexual conduct nor intend to do so. We are not told the source of the heterosexual service-members’ presumed distaste. Perhaps the assumption is that servieemembers would make the same irrational inference of conduct as military policymakers; perhaps it is that members dislike anyone with a homosexual orientation, no matter how he be
Under rationality review, we must assume the premise that heterosexuals would not wish to serve with individuals of homosexual orientation to be well-founded, even though we may personally hold a higher opinion of our servicemembers’ maturity than do their policymakers. We must accept too the unlikely assumption that forcing heterosexuals to serve with homosexuals will, in fact, lower morale, impair discipline, and discourage enlistment — despite our experience with the utter falsity of similar predictions voiced by opponents of President Truman’s 1948 executive order requiring racial integration of the armed forces. See Dahl v. Secretary of United States Navy,
In Palmore v. Sidoti,
Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect. ‘Public officials sworn to uphold the Constitution may not avoid a constitutional duty by bowing to the hypothetical effects of private racial prejudice that they assume to be both widespread and deeply held.’
Id. at 433,
The Court extended this reasoning to rational-basis review in City of Cleburne v. Cleburne Living Center, Inc.,
Palmore, Cleburne and the fundamental constitutional principle that they embody compel us to reject the government’s argument that individuals of homosexual orientation may be excluded from the military because others may be offended or angered by their mere presence. The Constitution does not allow government to subordinate a class of persons simply because others may not like them.
H. Privacy Rationale
The Directives also offer the justification that the mere presence of individuals of homosexual orientation in the military will invade the privacy of heterosexual servicemem-bers. DOD Directive § H.l.a. This argument could mean one of two things. The concern is either that homosexual service-members will ogle their heterosexual colleagues in close quarters, or that — regardless of whether such ogling takes place — heterosexuals will experience an invasion of personal privacy merely from their own fears.
Neither argument detains us long. The argument that homosexual “desirers” will stare reproduces the flawed presumption that mere thoughts and desires will translate into offensive conduct. The contention that heterosexuals must be protected from their fears of ogling, in turn, replicates the argument that governmental action should be controlled by the prejudices and stereotypes
I. Rationales Not Offered by the Secretary
The Supreme Court’s recent decision in Heller v. Doe suggests rationality review must consider whether arguments not proffered by the government might provide a rational basis for the regulations. — U.S. at —,
A final rationale on which the Secretary does not rely, but to which the Directives allude, is the “security” threat posed by homosexuals’ alleged susceptibility to blackmail. DOD Directive § H.l.a. As Judge Norris in the Ninth Circuit has aptly pointеd out, however, the military’s policy increases the risk of blackmail by making gays and lesbians remain in the closet for fear of forfeiting their careers.
We conclude that the military’s discharge of Joseph Steffan on the sole basis of his admission of homosexuality was not rationally related to a legitimate government goal. We disagree with the majority that this case concerns only conduct, whose past or future existence may be inferred solely from the mere acknowledgement of “homosexuality.” To permit discharge on the basis of such an inference would contravene both principles of rationality review and constitutional guarantees. Additionally, we find no rational non-conduct justification for the regulations, insofar as they penalize a simple admission of homosexuality. We therefore believe that Steffan should be reinstated into military service, permitted to graduate from the Academy, and commissioned as a military officer.
For the government to penalize a person for acknowledging his sexual orientation runs deeply against our constitutional grain. It has, we believe, no precedent or place in our national traditions, which spring from a profound respect for the freedom to think and to be what one chooses and to announce it to the world. The majority’s ingenious plays on presumptions and inferences cannot disguise the injustice that lies at the heart of this case. In years to come, we will look back with dismay at these unconstitutional attempts to enforce silence upon individuals of homosexual orientation, in the military and out. Pragmatism should not be allowed to trump principle or the soul of a nation will wither. We respectfully dissent.
. In light of this investigation, we find it curious that the majority would define the class of persons at issue in this case not as those "who say they are gay but have not acted in accordance with their propensity in the past,” as the Ninth Circuit recently did in Meinhold v. United States Dep't of Defense,
. The Commandant of Midshipmen is the officer second-in-command at the Academy, responsible only to the Superintendent. The Superintendent, in turn, answers to the Chief of Naval Operations, and is subject to the policies of the Secretary of the Navy.
. The Naval Academy’s Military Performance System provides for several levels of review before a midshipman may be separated from the Academy. Steffan’s case began at the Brigade Performance Board level. When, as in Steffan’s case, the Brigade Performance Board finds in favor of separation, the Board’s authority is limited to recommending the midshipman's separation to the Commandant of Midshipmen.
If the Commandant finds in favor of separation, he makes that recommendation to the Naval Academy Academic Review Board. That Board, if it also believes separation necessary, refers the case to the Superintendent of thе Academy.
Upon receiving a recommendation of separation, the Superintendent must forward it to the Secretary of the Navy. The Superintendent may also, however, elect to give the midshipman the option of qualified resignation rather than outright discharge. If the midshipman receives and elects to exercise this option, by so doing he forfeits the right to show cause to the Secretary why the Superintendent's recommendation for separation should not be approved. The Secretary of the Navy makes the final decision whether to approve the separation — whether discharge or resignation. Once the Secretary has reached a decision, the Naval Academy regulations do not provide for further review.
. For example, Steffan's Statement of the Case specifically mentioned only the “Navy’s regulations,” while his Argument more frequently referred to "the servicewide regulations promulgated in 1981 as part of Department of Defense Directives 1332.14 and 1332.30_"
. We have discussed only three; on the remaining occasion, not relevant to this appeal, we upheld in an unpublished opinion the district judge’s refusal to recuse himself.
. Counsel for Mr. Steffan also conceded "for today" that the military could constitutionally discharge individuals who “haven't yet engaged in homosexual conduct but [] intend to.”
.The majority writes:
Steffan concedes that the military may constitutionally terminate service of all those who engage in homosexual conduct — wherever it occurs and at whatever time the conduct takes place. See Dronenburg v. Zech,741 F.2d 1388 , 1398 (D.C.Cir.1984) ...; Beller v. Middendorf,632 F.2d 788 , 812 (9th Cir.1980)....
Maj. op. at 685 & n. 4. Neither case, however, suggests that the military may constitutionally discharge members who engage in any "homosexual conduct” at any time, as the regulations under review in this case purport to do. See infra at 685. The issue in Dronenburg was whether the Navy was constitutionally entitled to discharge a “27-year-old petty officer [who] had
. Meinhold, like this case, presented the question whether the services could constitutionally discharge a member for acknowledging his homosexuality. In an opinion by Judge Rymer, the court construed the DOD Directive so as not to require discharge for a mere admission of homosexuality, thus avoiding the "serious constitutional problem! ]” that would otherwise arise. Id. at 1476. The government has not sought in banc review in the Meinhold case.
. This, of course, is the Navy’s "propensity" argument, familiar from the earlier stages of this litigation. The court, however, now goes a step further, and suggests that the connection between homosexual orientation and conduct is far closer than mere “propensity”; there is actually no distinction between the two. See Maj. op. at 689-90.
. These three meanings of "homosexual” appear explicitly in the DOD Directive, which states in part: "Homosexual means a person, regardless of sex, who engages in, desires to engage in,
. This curious "prudential standing” argument does not even convince a majority of the in banc court. As the concurrences of Judges Buckley and Randolph suggest, the court’s purported "standing" argument is simply a restatement of the substantive argument that the Navy was entitled to discharge Mr. Steffan on the basis of "conduct” or "intent” inferred from his bare admission of homosexuality.
. It is a settled rule of statutory and regulatory construction that, where possible, each term should be given independent meaning. See Weinberger v. Hynson, Westcott and Dunning, Inc.,
. Essentially, the Secretary claims that the DOD regulations give rise to a "rebuttable presumption” because even an individual who claims that he or she is a "homosexual” may remain in the service if there is a "further finding” that he or she is not a "homosexual.” See Appellees’ Brief at 688-90. We later explain our view that the language of the regulations as applied to Steffan simply will not bear the Secretary's construction. See infra at 696-98.
. The majority’s position is in considerable tension with its own assertion of "the special deference we owe the military’s judgment....” Maj. op. at 686. Here, the military has determined that conduct and orientation are distinct concepts; for purposes of its own analysis, the court collapses them nonetheless.
. The majority's lengthy citation from Judge Reinhardt’s dissenting opinion in Watkins v. Army advances its cause hardly at all.
.Judge Kelly also noted that the Ninth and Federal Circuits have made similar statements. Both, "without citation to any evidence in the record or to a single medical authority” have announced that “[h]omosexuality ... is behavioral.” Jantz,
. The majority's attempt to explain this irrational difference ■ in treatment on the ground that "heterosexuals have a permissible outlet for their particular sexual desires whereas homosexuals in the military do not," Maj. op. at 692, is undercut by the military's own definition of "homosexual," which includes individuals who admit to being “bisexual.” DOD Directive 1332.14(H)(l)(b)(2). Bisexuals obviously have a “permissible outlet for their sexual desires.”
Moreover, recent events belie the notion that because heterosexuals have a “permissible outlet for their particular sexual desires,” their "desires” are less likely than those of homosexuals to translate into forbidden conduct. Five West Point football players are currently facing charges of "groping” female cadets during a pep rally; seventy-six percent of the 1993 class of women cadets there report experiencing some form of harassment. Eleanor Randolph, Army Players are Accused of 'Groping,' Washington Post, Nov. 2, 1994, at Al & A16. Under Academy disciplinary rules, the most severe punishment the accused athletes face for their alleged misconduct is suspension for ninety days. Id.
. For three months after the initial admission, the NIS unsuccessfully sought evidence of homosexual conduct on the part of Mr. Steffan.
.The majority’s protest that the cited cases involve the First Amendment, Maj. op. at 692, misses our point. The fundamental due process notion that the Constitution prevents the government from inferring that individuals will one day engage in proscribed conduct on the sole basis of their homosexual orientation is unaffected by the level of scrutiny applied in a given case.
Moreover, as the Gay Alliance court's reliance on both First Amendment and equal protection rationales suggests, see
. Throughout these proceedings, the Navy has strenuously urged that “celibate homosexuals” are not subject to discharge. This supposed exception alone casts doubt on the rationality of the inference that those who are homosexual by orientation will fail to exercise their self-control.
. The single piece of evidence in this record regarding what homosexual servicemembers actually do when faced with the prospect of harsh penalties for homosexual conduct can be found in Dr. Richard Green’s Declaration to the District Court. Dr. Green, a Professor of Psychiatry at UCLA, asserted that "substantial anecdotal evidence [suggests] that during World War II, gays in the militaiy simply refrained from engaging in homosexual conduct in order to avoid the harsh penalties that could be imposed” (J.A. 1137, citing Coming Out Under Fire: The History of Gay Men and Women in World War Two (Free Press, 1990)).
. At the Brigade Military Performance Board hearing convened to review Mr. Steffan’s situation, Captain Konetzi — the presiding officer— asked Mr. Steffan, "I’d like your word, are you a homosexual?” Mr. Steffan responded "Yes,- sir." Captain Konetzi then asked, "Do you have anything else to add at this point?,” and Mr. Steffan replied, “No, sir.”
. Cf. Satellite Broadcasting Co., Inc. v. FCC,
. These are two names for the same idea. As the government's attorney explained at oral argument in banc: "[W]hat was loosely and perhaps inartfully called the celibate homosexual exception is [] exactly the same point I am making today about rebutting the presumption."
In Steffan v. Cheney, the government used the label "rebuttable presumption.” In Steffan v. Aspin, 8 F.3d 57, 64 (D.C.Cir.1993), vacated and rehearing in banc granted (D.C.Cir. Jan. 7, 1994), they gave the argument another try as a "celibate homosexual exception," and we again rejected it.
. Indeed, although the government offers no evidence that the military’s policy decreases the risk of blackmail from external sources, amici cite research indicating that the policy increases the opportunities for sexual harassment within the services. A particularly notorious example involved a group of servicemen stationed at Kais-erslautern, Germany, who called themselves "dykebusters.” These men reputedly made systematic sexual advances to military women, and reported those who refused as lesbians. See Randy Shilts, Conduct Unbecomtng: Gays and Lesbians in the U.S. Military 496-97 (1993). See also, Michell M. Benecke & Kirstin S. Dodge, Military 'Women in Nontraditiоnal Job Fields: Casualties of the Armed Forces' War on Homosexuals, 13 Harv. Women's LJ. 215 (1990).
. The Secretary’s request for rehearing in banc raised the single issue whether this court has the authority to order Steffan commissioned. Specifically, while the Secretary did not question our authority to order Steffan's reinstatement into the Navy and his graduation from the Academy, he claimed that requiring the Navy to commission Steffan somehow intrudes upon the authority granted to the President and the Senate under the appointments clause of the Constitution. U.S. Const, art. II, § 2 (“The President ... shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Officers of the United States....’’).
We are told that ”[e]very physically qualified graduate [of the Naval Academy] is commissioned in the unrestricted line of the Navy or the Marine Corps.’’ Naval Academy Catalog for Prospective Midshipmen 51 (1982-83). Indeed, even before graduation, Mr. Steffan himself was as a matter of course nominated for a commission by President Reagan on May 11, 1987. The nomination was then referred to the Senate Armed Services Committee, which reported favorably on May 14, 1987. The Senate thereafter confirmed Steffan's nomination by unanimous consent. 133 Cong.Rec. 11,997, 12,033, 12,046, 12,-486, 12,636 (1987).
So far as the record reflects, then, the only impediment to Steffan's receiving his commission was his constructive discharge from the Naval Academy. See Appellees’ Letter of May 20, 1994 at 1 (any commission prepared for Steffan "would have been ineffective because [he] ... left the Naval Academy prior to completing the academic and military requirements necessary for commissioning”). The Secretary concedes that this court has the authority to remove that impediment by ordering Steffan reinstated
Concurrence Opinion
with whom Circuit Judge RANDOLPH joins, concurring in part:
I agree with the court’s analysis in every respect but one. I cannot concur in its holding, in part III.B., that Steffan lacked standing “to bring his particular challenge to the DOD Directives.”
In his complaint, Steffan acknowledges what he describes as his “homosexual orientation,” notes that there was “no allegation [in the proceedings before the Brigade Performance Board] that [he] had committed any homosexual acts or conduct,” and alleges that his forced separation from the Naval Academy was “predicated solely on [his] sexual orientation” and on laws and regulations that he considers unconstitutional because, among other things, they “punish[ ] his thoughts, speech and status, as opposed to his conduct.” Complaint, ¶¶ 17, 22, 30, & 34. Fairly construed, these allegations amount to a claim that Steffan suffered an injury directly caused by allegedly unconstitutional regulations.
It seems to me that this is sufficient to open the door to the courthouse. Once inside, of course, it was incumbent on Steffan to offer evidence to support his contention that he was required to resign based on his thoughts (or “desires”) rather than on the inferences as to his conduct and intentions that the Board was entitled to draw from the statement, “I am a homosexual.” To say that he failed to prove his contention is surely not to say that he lacked standing to make the attempt.