*1 operation projects that not FERC’s intention Section continued and were would promulgated expressly to govern orphaned project licensing. compe- ensure fair FERC project tition for gov- these licenses. did consider whether Section 15 Because the project regulations contemplate surrendered project licensing orphaned erned when is- projects the cessation of for which no applica- consequently sued Order No. and it had filed, reasonably were FERC tions could con- provisions no to which occasion consider that projects clude licenses issued for these orphaned project indicate that best original are licenses. relicensings. proceedings Nothing orphaned regulations compels treat- project reasons, petitioners For these have failed ing orphaned project proceedings original as Order, Declaratory to demonstrate that the Thus, licensing could proceedings. FERC 7(a) concluding apply that Section does not to reasonably its decline to base decision orphaned project licensing proceedings, instant ease on inferences drawn from the contrary legislative repre- to clear intent orphaned project language regulations an impermissible sents interpretation promulgated FPA, in Order No. 513. amended 1986. We think it fair say Congress to that never envisioned the petitioners Finally, contend FERC’s problem orphaned projects. The statute agency’s approach decision with the conflicts assume, appears quite reasonably, to projects. FERC’s surrendered Under incumbent licensees that file notices intent regulations, project a for surrendered is one relieensing apply ultimately for will do so. original which a licensee files notice regulations orphaned projects, FERC’s for intent to file for a relicense no one and policy applying and its of not municipal timely application else files the license. preference proceedings, in such address the § See 18 16.26. Pursuant to Order C.F.R. apparently rare situation when the relevant licensing proceed- No. FERC treats the parties do not according Congress’ act facility original for a as an surrendered assumptions. simply The statute is silent on relieensing proceeding rather than a even subject orphaned projects of how should though previous FERC had license issued plain be handled. It us seems 31,450-51. for the site. Order No. decision how to FERC’s treat such cases FERC, According con- these licenses are permissible is a construction of the statute “original” agen- sidered because licenses regulations. Accordingly, and own its we cy projects can alter or even “moth-ball” deny petition for review. after licenses are surrendered. See 6.1-6.5, §§ C.F.R. 16.26. Petitioners re- that,
spond practice, projects surrendered operate practical no
continue to so that dif-
ference exists between surrendered and or- facilities, therefore,
phaned agency Joseph STEFFAN, Appellant, C. should treat them the same. While similarities exist between surren- facilities, orphaned
dered deci- FERC’s PERRY, Secretary J. William differently beyond sion them to treat is not al., Defense, Appellees. et particular, pale. significance it is of No. 91-5409. рrojects occur after surrendered Appeals, United States Court of licensee files a notice of intent not to seek District of Columbia Circuit. relieensing competitive applicants fail to apply Orphaned projects, by license. Argued May 11, En Banc 1994. contrast, do not result from the absence Decided Nov. 1994. applicants, fact viable but rather from the As Nov. Amended the licensee’s notice of intent seek relieensing competitors ap- dissuaded result,
plying for the license. As a or-
phaned project contemplate the *4 Wolinsky, argued
Marc the cause ap- briefs, pellant. himWith on the were Nor- Redlieh, Bhatia, man Yineet and Calvin Steinmetz. Levy, Gen., Deputy Atty.
Mark I. Asst. Justice, Dept, argued the cause for appellees. Holder, On the brief Eric H. were *5 Jr., Atty., Hunger, and Frank U.S. W. Asst. Gen., Justice, Atty. Dept, Anthony U.S. J. Steinmeyer, Hoyle, John C. Roy and E. Hawkens, Attorneys, Dept, of Justice. brief, On for amici curiae American Committee, al., Jewish et was David C. McBride. brief,
On for curiae amicus American Professors, University Ass’n of were Scott L. Nelson, Franke, H. Ann and Robert C. Post. brief, On the for amici curiae American Project, al., Civil Liberties Union et AIDS Rubenstein, were B. Steven William R. Sha- piro, Arthur Spitzer. and B. brief, for Legal
On the amici curiae NOW al., Fund, Educ. Defense and et was Deborah A. Ellis. brief,
On the for amici curiae National Ass’n, al., Gay Lesbian and Law et was Paul R.Q. David C. entered an Wolfson. Vladeck appearance. brief, Benjamin for
On the amici curiae W. al., Jordon, Schulez, A. et Arthur Sr. brief, for On the amici curiae Geneva Col- al., lege Policy, for Center Law and Public et was William A. Woodruff. brief, Judge
On the amicus curiae Ass’n, was Miller. Advocates Gerald brief, On for amici curiae Naval Avia- Foundation, Inc., al., tion et was Ronald D. Ray. WALD, MIKVA,* deficiencies are considered to be Judge, ber of such Chief
Before: SILBERMAN, BUCKLEY, EDWARDS,** “sufficient and themselves warrant GINSBURG, SENTELLE, Academy.” WILLIAMS, separation from the Naval Id. regulations pro- HENDERSON, RANDOLPH, Academy Ch-2.15.3. The and “listing” shortcomings, of those ex- vide a ROGERS, Judges. Circuit all-inclusive, “listing plaining that the by Circuit Opinion filed for the Court severely examples which but rather serves Judge SILBERMAN. aptitude potential midshipman’s limit a regard service.” Id. With commissioned by Circuit Concurring filed statement concern, “homosexuality,” one RANDOLPH, BUCKLEY, whom Judge regulations state: joins. Judge, Circuit separation may previ- The basis for include filed Circuit Concurring statement ous, prior or current service con- service Judge RANDOLPH. Homosexuality in- or statements. duct in, engaging attempt- cludes the member concurring part, dissenting Statement soliciting in or another judgment part, concurring in the filed engage in act or It a homosexual acts. Judge Circuit GINSBURG. by the member also includes statements bisexual, Judge Dissenting opinion filed Circuit he or is homosexual or she EDWARDS, WALD, Chief marrying attempting with whom the member or ROGERS, Judge, join. Judge, person Circuit marry a known to be of the same biological sex. SILBERMAN, Judge: Circuit *6 added). (emphasis Id. The at Ch-2.15.3.c Steffan, Navy midship- a former Joseph regulations Academy do not further define homosexual, being to a man admitted who the term “homosexual.” judgment of the district appeals from the Department ap- of Defense Directives sustaining constitutionality the the of court homosexuality plicable to are more detailed. regulations pursuant he dis- to which was begin describing They with a statement their Academy. charged from Naval We af- the provides: which “basis” firm. Homosexuality incompatible is with mili- presence tary service. The in the I. persons engage environment of who in ho- Midshipmen enrolled the Naval Acade- who, by conduct or their state- mosexual subject of my regula- at least two sets are to ments, propensity engage to demonstrate homosexuality: the tions Naval relevant to conduct, seriously impairs Di- Academy’s own and the accomplishment of the mis- the appli- Department of the of Defense rectives of ad- presence sion. The such members generally. forces cable to the 'armed Military versely ability the of the affects order, good Academy regulations provide discipline, of to maintain number Services morale; foster mutual and “separation applicable to the “small and to trust criteria” members; among to en- minority midshipmen” “either confidence service [do] of who integrity system of rank perform “possess or cer- sure the the of to standards” who command; assignment in commis- to facilitate and tain traits which are undesirable deployment of States Naval Acade- worldwide service members sioned officers.” United frequently must and work under my Regulation, Instruction who live COMDTMIDN 1987).1 (July affording privacy; A minimal num- close conditions 1610.6F Ch-2.15.1 * Judge Academy regulations at found in the record Mikva was member of court Chief Academy. postdate separation from the Steffan’s argued the case banc but did not time was en however, parties regula- agree, these participate disposition this case. identical, so far as to this tions relevant ** Judge prior Judge Edwards Chief to became appeal, existing to the version at time of opinion. of the issuance giving suit. events rise Steffan’s my regulation’s and retain of the wording. to recruit members Mili- The Commandant Services; tary public accepted maintain ac- this recommendation and forwarded service; ceptability military pre- Board, it to by Academic chaired security. Superintendent Academy. vent breaches of the That Board met on April 1 and voted to recommend 13S2.14.H.l.a, DOD Directive 32 C.F.R. Pt. discharge Academy (1991) 41, App. (superseded) (emphases A Secretary Navy, again of the based “insuf- added). The Directives mandate that a aptitude ficient for commissioned service.” separated “member ... if shall one or following approved findings more of the Steffan, Following meeting, who was made.” Id. 1332.14.H.1.C. One such find- counsel, agreement advised reached an ing that “[t]he member has stated that he Navy, with the the terms of which were or she ais homosexual ... unless there is a embodied in a “statement of understanding” finding further the member is not a signed by acknowledged Steffan. Steffan 1332.14.H.l.c.(2). Id. homosexual.” And the upon statement that based the recom- per- the term “homosexual” is as “a defined Board, mendation of the Academic the Su- son, sex, in, regardless engages who de- perintendent Academy recom- in, sires to or intends discharge. mend his given Steffan had been 1332.14.H.l.b.(l). homosexual acts.” Id. at a choice: submit a “qualified resigna- either tion” litigate and risk Joseph enrolled in Naval recommendation of Acad- a discharge. The official emy completed transcript of a successfully mid- three shipman years “qualified who training, resigna- submits consistently his four “Resigned” tion” reads than being top near rather “Dis- ranked class. Dur- charged” separation. as the cause of year, the fall of his But the senior Steffan confid- qualified resignation itself an midshipmen ed two fellow includes ac- he was a knowledgement midshiрman reported homosexual. One of the he two Stef- will be Academy recommended for fan’s conversation officials and Superintendent resign. if he does not report on the of this Had basis the Naval Investi- gative began appeal presumably chosen to investigation Service of Stef- — Secretary homosexuality. fan’s had Secre- informed —and *7 tary order, by decided that inquiry midshipman of that a was fellow transcript Steffan’s questioned by March 1987. When have revealed Naval in- “Discharged” the as reason for his termi- vestigators, right Steffan his “invoked to re- silent,” option nation. main but Steffan chose the first did his and confide homosexuali- resigned Academy. from ty chaplain the The statement Academy. to a Subse- provided of understanding choosing that quently, meeting in a with the Commandant resignation to submit Academy, his Steffan forfeited of the that stated he was a right higher authority “his to show cause to homosexual. why he should not be from disenrolled the 24,1987, Academy On March the convened Academy.” Secretary Naval The of the a meeting of its Board. Performance At that Navy accepted resignation May Steffan’s on hearing, asked, your Steffan was “I’d like 28,1987. Subsequently, Investiga- the Naval word, you a replied, are homosexual?” He uncompleted tive Service its in- terminated “Yes, sir.” Steffan was asked then whether vestigation possible into conduct-related “anything he point,” had else to at this add regulatory criminal and violations Steffan. and he answered “no.” on this Based hear- ing Roughly year the Performance Board recommended submitting to a and a half after Academy the Commandant of the resignation, Secretary that “Stef- his Steffan wrote the separated seeking fan be from Academy resigna- the Naval to his withdraw aptitude due to insufficient Academy. for commissioned tion and his at resume studies the Academy service.” The Board state explicitly Superintendent “strong- did not The relying Academy’s ly” Secretary whether it was the on recommended he Directives, regulations deny although request. Superintendent’s the its the The let- appears paraphrase conclusion to the ter Acade- noted that Steffan had made an informed in, who or demonstrate following individuals resign the conclusion to decision in, to homosexual conduct. propensity entitled hearings which he was all to the government for the mer- The also asserts that admission Academy regulations. As under military engage in Superintendent the into of those who request, the its of Steffan’s unit that he would undermine cohesion. admission conduct pointed out Steffan’s for And the defends constituted basis was a homosexual Academy regulations, attempt protect privacy of ser- as an separation under the provided Directives vice members. and the DOD incompatible “homosexuality” with mili- was is, least, confusing say the as The record disapproved Secretary tary service. regulation applied to Steffan. which resignation request withdraw his Steffan’s At different within the various times bodies “in recommendation accordance military hierarchy on the Acade- relied either Superintendent.” Directives, my or both. regulation or denial, light ambiguity, and brought of this because Steffan’s Following that suit clearly sought complaint invalidation Perhaps because uncer- court. district Academy regulation on which the Naval re- discharge was tainty to whether his based as lied, constitutionality "will regulations or the DOD we consider Academy on the Directives, Academy regulations and DOD complaint sought dec- both the Directives, provided alone had regulations pur- “the if each generally that laration discharge. Academy are basis for Steffan’s to which the Naval acted suant applied their and as face unconstitutional Academy Regulations sought also II. Naval Plaintiff herein.” Steffan prohib- “enjoining Defendants from an order parameters of rational familiar iting graduating receiving [him] recently review reiterated basis were Academy” deny- “from diploma from the —Doe, Supreme in Heller Court States his commission the United [him] (1993).3 2637,125 —, 113 S.Ct. L.Ed.2d 257 summary The district court entered Navy.” protection equal review “[R]ational-basis
judgment
government,
favor of
analysis
judge
‘is not
license for courts to
appealed.2
wisdom, fairness,
legislative
or logic
—,
Steffan,
Id.
choices.’”
whose brief focuses almost entire-
(citations omitted).
Directives,
government,
“more
argues
ly on the DOD
over,
obligation
produce
no
evidence to
regulations lack a
has
rational basis be-
rationality
[regulatory]
of a
clas
simply
attempt
to eater to
sustain
cause
sification.”
Id. Because “a classification
prejudices
of members of the
rights
involving
pro
fundamental
nor
they “punish” homosexuals sim-
neither
and because
*8
along suspect
a
ceeding
lines is accorded
ply
the basis of their “status” and
on
“
id.,
validity,”
strong presumption
‘[t]he
on
of con-
“thoughts” rather than
the basis
[govern
attacking
on
one
the
this concession burden is
the
duct. Steffan concedes—and
arrangement
dispute
military may
negative every
con
mental]
frames the
the
—that
it,’
might support
engage
ceivable basis which
wheth
discharge those
in homosexual
who
govern-
the
has a
duty.
off
The
er or not
basis
foundation
conduct whether on or
(cita
at—,
Id.
113
at 2643
that
the
are a
record.”
S.Ct.
ment contends
omitted).
presumption of
attempt
military
the
tions
This
rational-
rational
to exclude from
identifying
test for
such classes. See
panel
2.
of this
reversed the district court
Court's
A
court
(D.C.Cir.
(D.C.Cir.
Webster,
97,
Aspin,
in
v.
685
congressional
ity
apply merely
serving
legitimate
does not
would be
purpose
or
schemes,
legislative
excluding
but extends to ad
in
state
who
homosexual
those
well,
regulatory
ministrative
action as
such
conduct or who intend to do so.5
military regulations at
as the
issue here. See
dispute
parties
between the
is thus
White,
Basket
States Box &
Co. v.
Pacific
limited to
question
whether
regula-
176, 186,
159, 163-64,
296 U.S.
80
S.Ct.
(focusing
tions
Academy
now on the
regula-
(1935).
L.Ed. 138
The classification “is not
tions), by requiring
of those
subject
factfinding
may
to courtroom
midshipmen who desсribe themselves as ho-
speculation unsupported by
on rational
based
Academy
mosexual —whether or
has
empirical
evidence
data.” FCC Beach
establishing
information
that an individual
—
Communications, Inc.,
U.S. —, —,
engaged
has
in homosexual conduct or in-
2096,
(1993).
S.Ct.
L.Ed.2d 211
tends to do so—are rational. Steffan first
quite
The dissent
mistaken in asserting
is
argues necessary
there is no
factual
govern
under rational
review
basis
connection
self-description
between such
position
if
ment’s
is weakened
it does not
such conduct. But
primarily
Steffan relies
(“demonstrate”)
produce
support
evidence to
on a
argument.
more
novel
subtle and
Even
regulatory proposition.
its
See dissent at
government
if
rationally,
could
as a factu-
It
imagine
is hard to
more deferential
matter,
al
draw connection between the
basis,
judg
than rational
but
standard
when
conduct,
statement
legal
and the
other
con-
rationality
regulation
prevent
siderations
from so
context,
military
special
we
even
owe
more
doing.
not,
military may
according
professional
deference
“considered
Steffan, “punish”
solely
homosexuals
on the
judgment”
“appropriate military
officials.”
may
military
basis of their
Nor
“status.”
Weinberger,
Goldman
presume that self-declared homosexuals will
(1986).
S.Ct.
proscribed conduct and
Middendorf,
likely
Beller v.
review to
legislature’s generaliza-
(1962). Yet,
proposition
has never
tions
imperfect
even when there is an
fit
employment
meant that
decisions—which
between
means and ends. A classification
what this ease is about —cannot be
does
fail
made on
rational-basis review because
such a basis. One
put
jail
cannot be
it
“is not made with
nicety
mathematical
having
(although
been born blind
practice
blind
because
it results in
in-
some
person who drives a truck and kills
equality.”
someone
problems
“The
act).
jailed
could be
for his
obviously
But it
practical
are
may justify,
ones and
if
would be constitutional
for the
require,
do
rough
accommodations—
prohibit
people
blind
be,
serving in
illogical, may
and unscientific.”
forces,
though
armed
congenital
even
blind
—
Heller,
—,
689
sure,
pass
past
likely
even
the
again
To be
would not
has
and is
to
en-
reject
extent,
for
to
gage
basis
the
such conduct.
rational
review
To this
therefore,
regulation
classify
members because of characteristics—
the
does
service
not
religion
plaintiff
merely upon
as race
or the lack of inherit
based
or
her status as a
lesbian,
bearing
absolutely
upon
have
no
but
ed wealth —that
reasonable inferences
Homosexuality,
probable
their
service.9
her
past
on
about
conduct
the
and
contrast,
Army
is not irrelevant
to homosexual
in the future. The
need not
its
shut
eyes
practical
that the
to
conduct. And once
concedes
realities of this situa-
tion,
military may constitutionally
prevent
nor
compelled
engage
seek to
be
in the
latter,
analogy
hypothetical
sleuthing
to a
ex
рersonal relationships
his
of soldiers’
particular
or reli
clusion
those of
race
for evidence of
or-
homosexual conduct in
acts,
gion fails.
to enforce
on
der
its ban
homosexual
challenged
Army
a ban not
here....
Nevertheless, Steffan,
in order to
try
regulation
need
to fine tune a
fit
point,
have us
make
would
see homosexu
subjective
particular
thoughts
lesbian’s
al status —which is all that he
be
should
propensities.
conceptu
thought
acknowledged
to have
—as
Marsh,
881
Ben-Shalom
F.2d
ally
Al
unrelated to homosexual conduct.
(7th Cir.1989),
denied,
cert.
though
there
well be individuals who
(1990) (em
It is true that actual lesbian conduct has have the dissent’s by plaintiff any par- reasoning government’s been admitted on failure —that (“demonstrate”) occasion, Army produce ticular and the offered evidence in has that its Judge reality” no conduct. is evidence of such Gor- ference “rooted in undermines its position predicated don found no reason to believe an incorrect view on —is law, plaintiff lesbian admission meant that of constitutional which the dissent Heller, likely id., to commit homosexual acts. We see see and relies on miscites recent it differently. challenging Plaintiffs lesbian acknowl- court mili district decisions edgement, prac- rep an tary’s simply if not admission of its which ban homosexuals tice, rationally reasonably undisciplined against an least can resent rebellion governing be viewed as reliable evidence of desire constitutional doctrine. Id. at propensity It government’s 711-12. is not the burden assumption degree conduct. Such cannot establish correlation be .exact exceptions, said to be without individual tween those who themselves as ho describe compelling plaintiff but it evidence that mosexual and those who homosex- participants religion, race treatment 9. Classifications based on or methadone course, trigger scrutiny. program physical symptoms strict that im- exhibited paired capacity employment. their Dissent at mistakenly dissent asserts that view our not, however, Supreme rely 715. The Court did on this issue is contradicted the DOD Di- indeed, upholding policy; on this basis in government's position and the rectives in Selland recognized participants Court that some (D.D.C.1993). F.Supp. Aspin, Dis- program, individually, if “examined satisfied the repeatedly emphasize 710. We sent at criteria,” employment Authority's Transit but military’s practice discharging service mem- (cid:127) nevertheless held that "it is of no constitutional homosexual, who state bers based significance rationality degree of is not that the permissible inference of on an future great respect with to certain ill-defined sub- rational in because inference is the run of parts respect assertions, as it is classification Contrary to the dissent's cases. Id., possible еxceptions classification as whole.” existence individual (citation omitted). protection analysis. equal S.Ct. at 1370 rule does not affect our proclivities inter- to show that con member’s sexual ual alone conduct —let Indeed, theory “the ests .... cepts are coterminous. *13 require ... does of rational basis review by group ... the is defined Whether place any in [government] to evidence the composition or its is status — at —, Heller, U.S. 113 the record.” essentially same. the added). (emphasis ap Neither S.Ct. at 2642 Id. n. 19.11 at 1360-61 & dissent, empha it the must be
pellant nor Judge Rein We need endorse sized, a actually denies that there is correla unequivocal position or his harsh crit (we hardt’s are, all, speaking those after of who tion reasoning upon that now icism of the is relied homosexuals, openly identify as themselves colleagues. dissenting It is sufficient our experience might simply who not of those recognize government’s presump that the fleeting a ho might interpreted what be tion, Academy regula as embodied does, impulse). how mosexual dissent tions, certainly given rational that the hu is ever, judge quote approvingly from a district enormously powerful man sexual drive is alia, asserted, that “there is al who inter open that is an declaration that one a homo most correlation between an individual’s no sexual is rather reliable indication as to and his her sexual sexual ‘orientation’ or of drive. direction one’s defining Dissent at 711-12. Even conduct.” terms, possible broadest “orientation” employ mili dissent would preposterous. is we think this assertion (which 1993, tary’s policy, adopted in new court) formally understanding of course is not before the as an government’s what implicitly con indication has is meant when individual identifies himself (and Academy regulations that the qualification as a ceded for or herself without homosex Directives) Judge mer irrational. That ual .is the view of Rein DOD were identical hardt, fight judiciary’s proposition sequitur. is a In most non perhaps the federal extremely protections deferential of rational basis proponent vocal of constitutional nature review, always range there or civilian life. be homosexuals See, Reinhardt, policy e.g., choices that would meet that standard. The Court and Clos A Judges shift from of those choices to another Why et: Federal Have to one Should Post, suggests Homosexuality?, Washington hardly that the Hide believes 1993, 31, any In his dissent former was unconstitutional. Oct. C3. Wat 1329, event, Army, policy, under kins v. 847 F.2d the new Steffan’s state United States (9th Cir.1988), sharply again emphasize 1353 he criti ment —which we is what which Hardwick, 186, taken cized 106 ease about —would be to mean Bowers (1986), 2841, just Academy apparently he S.Ct. 92 L.Ed.2d said: what Board thought pro it meant. The new Directives as those Even if we define the class who vide that a “statement a Service member orientation,’ have its a ‘homosexual mem- or she ... he is a homosexual creates active, prac- principally bers will consist presumption that rebuttable Service ticing homosexuals.... engages in acts member homosexual or has pretend homosexuality propensity or Di ... To intent do so.” DOD (Dec. 1332.14.H.l.b.(2) 1993). heterosexuality to sexual con- rective To is unrelated sure, policy, govern be under new duct on the absurd. What distin- borders guishes explicitly any from the ment disavows concern with a the class of homosexuals totally vague private clаss some of heterosexuals is not service member’s homosexual “orientation,” emotions,’ meaning ‘range but the nature of the his “sexual attrac- Lambda, rights organization repre- gay conduct.” See Brief "homosexual Amicus Curiae Steffan, senting appeared as amicus in Bowers. Legal Respondents by De- on Behalf Lambda Arguing against constitutionality of criminal- Fund, fense and Education Inc. at n. izing sodomy, it homosexual asserted that the Hardwick, Bowers v. “regulation of sex behavior constitutes the same (No. 85-149) (emphasis L.Ed.2d prohibition way total of an entire of life” because added). homosexuality inexorably intertwined with tions”; language might upon but however close examination it is more clever than cases, applied obviously in future all, would real. First of Academy regulations who, have no relevance to a service member reach all category homosexual conduct —a Steffan, like has disclosed he is a homo- actions that include conduct that is not sexual. Code, illegal proscribes under the which sod- omy. important, More we think that when a Certainly, individuals like Steffan who service openly member declares or admits identify themselves as a mili- that he is a homosexual explana- without tary setting a declaration of homo- —where *14 tion, Academy may rationally take that sexuality grounds discharge convey — statement, purposes at least for unrelated to impression in are not doubt as enforcement, criminal highly likely to be to the direction of their sexual drive. The an admission of homosexual conduct or in- government inference drawn in this tent. In a discharge proceeding, sort of case stronger is thus even than it need not inquisition conduct an life, to test might be in civilian where it is more particular midshipman possesses whether experi- conceivable that an individual would idiosyncratic an view of the term. When an ment with such an identification. The dis- reasonably individual’s statement can be tak- sent asserts that the fear of would en to propensity evidence a prevent engage in self-identified homosexual from ac- conduct, tually military may certain engaging certainly see 712, take that individual at reasoning dissent at but its his word. overlooks point fears, present, that such if authority presents support presumably discouraged also have the initial point does not bear on his case. Steffan statement, particularly person if a were un- principally relies on Jacobson v. United sure of his or her identification and its rela- — States, —, U.S. 112 S.Ct. tionship military’s definition. Given (1992), L.Ed.2d 174 Supreme in which the military’s response that the is the same petitioner’s Court overturned conviction on discharge—it why each is unclear case— charges receiving pornography through dissent thinks the deterrent would affect mail, holding government agents the later decision. “may originate design” criminal assumption
Even if the
“implant
person’s
declared
in an innocent
mind the
engage
homosexuals will
disposition
homosexual con
to commit a criminal act.” Id. at
contexts,
—,
duct is reasonable in certain
Steffán
govern
S.Ct.
1540. But the
impermissi
maintains that it is nevertheless
obligation
prove
ment’s
predisposition in
military
ble for
assumption;
to act on that
entrapment
an
prosecution has no relevance
implies
engage
service members will
military may
to whether the
assume that a
in criminal misconduct —viоlate the
identifying
Uniform serviceman
himself as a homosex
Military
Code of
argues
Justice. Steffan
likely
ual is
in homosexual cond
an assumption
case;
flies
the face of uct.12 This is not a criminal
core
jurisprudence.
misconduct,
traditions of American
charged
was not
with
and there
Although
argument
has a
protections
certain
fore the constitutional
we accord
superficial attractiveness, it seems to us that
applicable.13
criminal defendants
are
12. The dissent’s reliance on Robinson v.
sufficiency
necessary
volved the
of evidence
Califor-
nia, supra,
misplaced.
is also
The Court’s hold-
Party
convict a Communist
member under the
ing in that case
criminalizing
that a state statute
advocating
Smith Act for
the violent overthrow
the "illness” of narcotics addiction was cruel and
Robel,
government.
United States v.
punishment
legal
unusual
bears little
or factual
(1967),
88 S.Ct.
sumption about trou- assumption segregating Besides the a similar homosexuals. make does not put- bling implications separation, of such a that there- respect to heterosexuals together di- ting all would not homosex- homosexuals against fore the inference directed minish their mutual sexual attractions. of sod- bias. Acts impermissible uals reflects then, concerns, military’s do not stem from are omy by also misconduct heterosexuals or, suggests, irrational as the dissent Justice, bias Military yet under the Code of 712; stereotypes,” dissent at “naked presume that hetero- does not rather, and homosexuals heterosexuals in that It is practice.14 will sexuals differently at the because the means treated just military procedure Stef- not clear what dealing natu- military’s disposal for with the allegedly con- based on this fan asserts is phenomenon of sexual attraction differ ral trary assumption about heterosexuals. two. event, government responds, to as the be- criminalize one form of sexual conduct *15 criminal have said that this not a We pro- heterosexuals is the same tween It is a First case. case. also not Amendment hibiting all conduct homosex- sexual between discharged was not from the uals; puts greater the a much restraint latter expressed sympathy he for homosex because that rea- on sexual drives —one openly opposed the uals or because he difficult, impossible, sonably if not believes homosexuals, Navy’s policy banning nor military presumes, par- to maintain. The violation. has he claimed a First Amendment likely fashion, allel that homosexuals are as (To sure, First must be even the Amendment hetеro- engage in homosexual conduct as exigencies military yield at times to likely are in heterosexual sexuals 503, Weinberger, v. 475 life. Goldman U.S. conduct. Homosexuals and heterosexuals 507-09, 1310, 1313-14, 106 89 L.Ed.2d S.Ct. are, however, differently in that het- situated Glines, 348, (1986); 478 Brown v. permissible for then- erosexuals have outlet (1980) 599, 354, 100 62 540 S.Ct. L.Ed.2d particular sexual desires whereas homosexu- 733, 759, Levy, 417 (iquoting Parker v. U.S. temptations do not. The als (1974))). 2547, 2563, 41 94 S.Ct. L.Ed.2d 439 heterosexuals, moreover, facing com- are less by “thoughts” put were in issue than that pelling those homosexuals Academy. discharged the Naval He was not encounter, men women are because and imagining the demise the President They separated quartered separately. are Academy. Superintendent even military rationally because assumes Thus, dissent at 713-15. most of the See heterosexuals, homosexuals, likely are like dissent, cases relied both the Su act in with their drives accordance sexual opinions, utterly preme Court and circuit whether or not such actions would be miscon- inapposite.16 (Under it is logic duct. the dissent’s —that irrational to from indicia infer sexual conduct recognize government’s poli- men separating
of sexual
We
tendencies —even
(using
ordinary
thought
cy
and women could be
unconstitution-
homosexuals
—that
al.15)
military obviously
meaning) may
elimi-
not serve in the armed
could not
classification,
quarter-
military's employment
separate
in this
15. As a sex-based
er
restrictions
ing for men
women would
reviewed un-
be
Equal
case are rational under the
Protection
stringent
equal
the more
der
intermediate-level
Clause.
protection standard.
said, however,
Navy’s pre-
14.As we have
supplement
While the
Circuit
its
16.
Fourth
did
sumption
does not neces-
of homosexual conduct
analysis
Gay
First Amendment
Alliance of
acts, i.e.,
Although
sarily imply illegal
sodomy.
Matthews,
(4th
544
Students
F.2d
may
significant
implies
the dissent
distinctions,
that there
be
Cir.1976),
that withhold-
brief statement
Steffan,
see dissent
705-06 n.
recognition
gay
group
also
from a
students’
part,
distinguished
equal
for his
never
in his conces-
protection, it did
a "tai-
denied
so under
sodomy
government
sion
con-
interest
between
other homosexual
lored
serve a substantial
standard,”
basis
duct.
not rational
review.
quite
noted, however,
forces —is
controversial. The issue is
As we have
Stef
think, however,
politically
agreed
devisive. We
fan’s
argument
counsel
at oral
constitutionally
Steffan’s claim
cannot
Directives
ap
could be
rationally
plied to
infer that one who states he or
a service member
she
who stated that he
homosexual,
practicing
is a homosexual is a
homosexual and
who meant
likely
actually
or is at least
statement that he
engaged
in homo
acts,
concession,
argument
is so strained a
sexual conduct.
constitutional
This
that some
as to amount to a
attack
policy
basic
on the
situations exist to which the
Directives
constitutionally
language
applied,
itself.17 And we think that
renders Steffan’s
“[Ujnder
challenge
used
the dissent —its invocation of
facial
“dis-
defective.
our con
crimination,”
system
dissent at 715 n.
stitutional
roving
“fundamen-
courts are not
com
id.,
process,”
assigned
.pass
tal due
missions
judgment
“fundamental im-
on the
pediments deeply
validity
rooted in our
constitutional
the Nation’s laws.” Broadrick v.
Oklahoma,
jurisprudence,”
601, 610-11,
—represents
id. at 709
rhe-
U.S.
93 S.Ct.
2908, 2915,
(1973).
torical effort
to bréale out of the narrow
cating rights
particular
cases.” Id. at
Accordingly,
S.Ct.
outside the
III. DOD Directives
see,
context,
First Amendment
e.g., Gooding
Wilson,
518, 520-22,
A.
*16
1103, 1105-06,
(1972),
waiver which defense as was also isolation,” “in ambiguous “desires” appealed. ed and not As neither the waiver that Department tells us in- Defense us, arguments it nor exhaustion are before ie., terprets related,” the term as “conduct appropriate would not be for us to consider bordering intent, referring sponte. them sua National Cf. Wildlife “prospect actual acts.” If future the Di- Burford, Fed’n v. 835 F.2d 316-18 interpreted way rectives were in this —not- (D.C.Cir.1987) (discussing district dis court’s withstanding language their different —to cretion to exhaustion claims raised enforce essentially mean Academy the same as the against plaintiffs nongovernmental third then, held, regulations, already as we have parties). pass If, would constitutional muster. in- stead, interpreted the word “desires” were
Still, making
as-applied
chal
per-
extend the definition
lenge,
govern
it is Steffan’s burden —and the
likely
sons not
in homosexual con-
point
exactly
ment does make this
show—to
duct,
question
different
present-
would be
applied
him
against
how the Directives were
ed;
indicated,
but Steffan has not
in his
illegally.
this obli
Steffan seeks to meet
case,
framing of the
he
is affected
gation
admitting
homo
he entertains
(if far-fetched)
possible
definition.
arguing
sexual desires and
that such admis
sion alone would be
under
sufficient
argues
The dissent nevertheless
DOD
to cause
Directives
his termination.
“nothing Steffan could have said before the
difficulty
posi
with Steffan’s inventive
Performance Board
have been
would
remote-
tion, however,
theory
even under his
ly
predicament.”
relevant
Dissent at
of the case he
have a
constitution
simply
716-17. We
do not understand how
al claim if his
had
that he
statement
meant
*18
colleagues
our
can so conclude. Had Steffan
yet
harbored
desires
had
homosexual
“yes”
responded
question
to the
whether he
in
engaged
engage
neither
or
in
intended to
also
was a homosexual but
said that he
Otherwise,
homosexual conduct.
the desires
only that
meant
he entertained homosexual
portion of the definition would not have been
thoughts, it is not at
to us what
all clear
the
discharge.
crucial to his
might
Board would have
The Board
done.
Navy
alleged
Steffan
that
insists
the
never
well have determined that under those cir-
that
in
in-
engaged
finding
he
homosexual acts or
cumstances it should
“further
enter
but,
homosexual,”
tended to
That is
seems to
member
do so.
true
it
that the
is not a
as the
us,
all,
Or,
quite
point.
contemplate.
the
the
the Board
beside
After
Directives
Navy
alleged
might
sought
never
that Steffan had homo-
then have
to determine the
openly
parameters
sexual
Steffan
admitted
Does
“desires.”
term “desires.”
the
homosexuality,
something
his
circum-
to an actual in-
and under the
term mean
close
or,
stances
no reason for
to
conduct
as
there was
the
tent to
homosexual
concluded,
proceed
original panel
If
further.
Steffan had
to
the
in this case
wished
explain
that his admission was based
on mere “inclinations” and “fantasies.” Steffan
(D.C.Cir.1993),
Aspin,
his
not
or
8 F.3d
desires —and
his conduct
inten-
vacat-
(D.C.Cir.
granted
joined
rehearing
tions —he
have done
the
could
so and
ed and
en banc
1994).
government
issue. The
would have been
must bear mind that
Jan.
We
obliged
implicitly
that
that
the
was
to
although
has
conceded
held
Steffan
desires,
never
the
he has
the
based on
adminis-
he harbors homosexual
defend
explained
he
term.
at the time of
how
defines
trative record before the Board
disagreed
action
the district
its
was, moreover, amply represented
Steffan
Id. at 76.
court as
its remedial rationale.
717).
If he
(compare dissent
counsel
obliged to
the
he
answer
believed that
was
decidedly
say that
did not
Steffan’s
We
solely
question affirmatively
because
prior
categori-
conduct
to his dismissal was
Directives, it
DOD
portion
the
“desires”
case;
cally
expressly
we
irrelevant
surely
counsel
have
his
occurred
possibility that conduct-relat-
envisioned the
predicate for a constitu-
appropriate
that the
might
issues
be “relevant” on some “other
ed
challenge
explanation
tional
would include
the
ground.” Id. Neither we nor
district
did not mean—
of what Steffan meant —and
point
court even considered
whether
by his answer.
obligation making
had an
an as-
Steffan
stands,
no
has made
As the record
challenge to
that his
applied
indicate
state-
Academy proceeding,
effort
in the
either
embracing homosexual status
not
ment
was
Secretary
the
subsequent
his
letter to the
or the intent
linked
Navy,
in federal court to
or even
his suit
in that conduct.
allegedly
how
Directives’
demonstrate
the
spe-
The dissent’s assertion that “We also
ap-
definition of homosexual was
overbroad
rejected
cifically
government’s argument
proceedings
plied
Putting
to him.
before
presumption’
that because of a ‘rebuttable
aside,
to us that Steffan
Board
seems
in the
exception’
regula-
‘celibate homosexual
basis,
no
once
came to
has
conceivable
he
tions,
presumptively caught
Steffan was
challenge,
with a
federal court
collateral
prongs
regula-
the conduct or intent
allegations exactly
stating
how
otherwise,”
tion until he demonstrated
dis-
injured
portion of the
“desires”
Directives
accurate,
simply
sent at
and there-
him.
seeks to blur
distinction
fore
dissent’s contention
we have
as-applied
challenge;
between an
and a facial
panel
prior
reversed
decision is incorrect.
he
to attack the Directives at the
wishes
question
entire
Our
treatment
legally
point
they are weakest
he believes
following
in the
footnote:
contained
shouldering
requisite
burden
without
argues
now
Government
such an
attack —a demonstration
homosеxuality
admission of
raised a “re-
supposedly irrationally overbroad definition
regulatory presumption that he
buttable
impact
had a real
on him. This
cannot do.
he
commit,
prediliction
had a
[sic] to
and had
sure,
emphasizes,
To
the dissent
committed,
argu-
homosexual acts.” This
717-18,
has
dissent at
this case
been before
ment,
court,
not raised in
district
finds
Cheney,
this court before.
support
no
in the record.
(D.C.Cir.1990)
curiam),
(per
F.2d 74
we re-
*
added).
(emphasis
versed the district court’s dismissal of
Id. at
n.
As we
remand,
contemplated,
government,
case
as a sanction for Steffan’s refusal
deposition
present
argument
answer
questions about whether
did
district
*19
court,
why
engaged
he had
dur-
which
time
case
homosexual conduct
next
court,
ing
a midshipman.
appeared
or
his tenure as
see
v.
before
after
57,
(D.C.Cir.1993),
privi-
64-65
Aspin,
Steffan asserted his Fifth Amendment
8 F.3d
va-
(D.C.Cir.
objected
lege
questions
reh’g
granted
en
and also
that
cated
banc
7, 1994),
panel
were not relevant. The
court disa-
treated the issue on
Jan
district
conduct,
greed
theory that
merits and did not
it was
on the
Steffan’s
assert
dismissal,
foreclosed,
ger-
subsequent
argue,
even
be
as the dissenters now
would
is,
question
remedy
mane
law of
Dissent
the case doctrine.
at 718
—that
dismissed,
whether,
illegally
(citing
Aspin,
if
had
n. 25
v.
697
—Hahn,
U.S. —,—,
2326,
112
B.
v.
S.Ct.
(1992).
2332,
require
For the
Department
regulations.
of Defense
is affirmed.
the district court
pinpointed
Steffan has never
where on the
ordered.
So
continuum between homosexual conduct and
placed
thoughts
he
himself
mere
BUCKLEY,
Judge,
whom
Circuit
discharge.
time of his “constructive”
at the
joins, concurring
Judge RANDOLPH
Circuit
as
He treats the matter
irrelevant. Our
part:
in
opinion
Cheney,
920 F.2d
Steffan
analysis
every
(D.C.Cir.1990)
court’s
agree
curiam),
I
with the
(per
basically agreed.
I
concur in its hold-
respect
case,
but one.
cannot
legal
posed
issue
both then
III.B.,
lacked stand-
ing,
part
now,
that Steffan
military
is whether the
relied on
challenge
bring
particular
ing “to
his
grounds
threatening
unconstitutional
to
Directives.”
Academy.
DOD
force Steffan out of the Naval
Obviously,
begin
F.2d at 76.
one cannot
to
acknowledges
complaint,
In his
Steffan
that
decide
issue unless one first identifies
orien-
what he describes as his “homosexual
military’s grounds.
is
Here where Stef-
tation,”
allegation
“no
notes that there was
difficulty.
problem
fan’s
into
case runs
Brigade
Per-
proceedings
before
[in
standing.
lack
It is that
for Steffan is not
that
had committed
Board]
[he]
formance
portion
he failed to substantiate
essential
conduct,”
alleges
any homosexual acts or
namely,
the truth of his claim
of his case—
separation from the Naval
that his forced
constructively
discharged
that
solely
Academy
“predicated
on
sex-
[his]
solely
him
orien-
because
his “homosexual
and on laws and
ual orientation”
points
important
Two
strike me as
tation.”
because,
that he considers unconstitutional
regard.
in this
among
things,
“punish[
his
]
other
First,
allegation
at what
is aimed
status,
opposed
thoughts, speech and
had in their collective
officials
¶¶ 17, 22, 30,
Complaint,
& 34.
his conduct.”
minds, not what
had in his. Given
Steffan
construed,
allegations
Fairly
these
amount
ease,
majority opin-
posture
injury
a claim that
suffered an
direct-
have to be true”
ion’s list of “facts
regu-
ly
by allegedly unconstitutional
caused
standing
for Steffan to have
Stef-
lations.
—whether
regulations,
he had
fan read the
whether
this is sufficient to
It seems to me
particular definition in mind when he
some
in-
open the door to the courthouse. Once
(unknown
homosexual,
he was a
whether
said
side,
course,
it was incumbent
Academy)
engaged
at the
he had
officials
support
contention
to offer evidence to
to me beside
homosexual conduct —seem
required
resign
on his
that he was
based
military’s grounds for
point.
It is the
(or “desires”)
thoughts
rather
than on the
grounds
that are
“The
decision
decisive.
intentions
inferences as to his conduct and
must be
upon which an administrative order
entitled to draw from the
that the Board was
dis-
judged
upon
are those
which the record
statement,
say
“I am a homosexual.” To
SEC v.
closes that
its action was based.”
prove
his contention is sure-
he failed
80, 87,
Chenery Corp.,
S.Ct.
standing make
ly
say
not to
that he lacked
(1943);
Secretary
whether dismissed. See dis- fan was ques- relief in such a case—a the court to order tion sent at 720 n. 27. characterization, which, despite their *22 700 military against that Of course one Steffan claims acted
“homosexual orientation.”
pursuant
policy
discharging
who
him
may safely assume that individuals
en-
to a
those
having only
conduct have such an
gage in homosexual
he defines as
“homosexual
attributing
orientation,”
But in
reasons to
has not
orientation.
he loses because he
military,
those individu-
Steffan excludes
made out an essential element of his claim.
men,
envisages
only
and
those
standing
try.
als. He
those
simply
had
He
Steffan
men,
sexually attracted to other
who are
attempt.
majority
in
failed
Since the
men,
engaged in
who have not
homosexual
opinion
standing
with
in re-
credits Steffan
predict they
and who
will never act
Academy regulations,
gard to the Naval
years
urges during their
on their sexual
my
I
since what
have written conforms
duty
military,
problem
or off. The
оn
reading
majority’s
of the
resolution of the
is that
the record fails to disclose
part
regulations,
DOD
I concur with all but
military
pro-
acted on the basis he
that the
majority’s opinion.
IIIB of the
poses.
Department of
The relevant
Defense
Academy
GINSBURG,
regulations
Judge, concurring
and Naval
do not even
Circuit
dissenting
concurring
“homosexual orientation.” To be
part,
part
mention
sure,
psychological report
to judgment:
submitted
Brigade
Performance Board said that
Supreme
Court has held time and
homosexuality”
and that
Steffan “admitted
judicial
again
power
that
of the
“[t]he
United
pre-dates
this “orientation
his tenure at the
States defined Art. Ill is not an uncondi-
Academy.”
thereupon
Naval
The Board
authority
tional
to determine the constitu-
profess
being
heard Steffan
a homosexual
tionality
legislative
or executive acts.”
and,
deliberating privately,
after
rendered its Valley Forge
College
Christian
v. Americans
discharged
that
should be
decision
State,
Separation
For
United
Church and
“by
homosexuality.”
reason of
There is but
752, 758,
454
102
U.S.
S.Ct.
70
gleaned
to be
this:
one conclusion
(1982). Hence,
L.Ed.2d 700
a federal court
Board found that Steffan had violated the
controversy presented
must decide the
to it
Academy regulation,
Naval
which
states
controversy.
Broadrick v.
Cf.
“homosexuality”
includes “statements
the Oklahoma,
601, 610-11,
”
that he or she is a
member
homosexual....
(“[Ujnder
2908, 2915,
FDA
regulation,
much
address
less render
J.).
result,
only question
As a
before us
concerning
constitutional decision
it.
respect
both sets of
constitutionality
Academy’s reg-
whether a member’s statement
that he is a
supplies
important question
ought
with a ra-
ulation is an
litigant
actually
discharging
tional basis for
him. On that
not be addressed until a
who
score,
fully agree
reasoning
injured by
application
I
with claims to have been
its
majority opinion that
it does.
Insofar as
comes before the court. As he has framed
court,
sanctions,
inherently
*23
is
of criminal
it is
arguments
this
Steffan
unrea-
his
before
equate
to
Because the
none-
sonable
an admission
homosexu-
litigant.
not such a
court
identity
al
of or
question,
to decide that
with commission
intent to
theless reaches out
essence,
is,
advisory opin-
engage in
conduct. The in
in
an
homosexuаl
banc
what
renders
the case to
attempt
I
from Part II of the
court’s
to recast
avoid
ion.
therefore dissent
court,
parties,
the issue that
the trial
and
opinion.
court’s
original panel opinion have
identified as
brought
has
Insofar as
before
litigation
core
must ultimately
at the
of this
constitutionality of
upon
court
attack
his
posed
The
in the
fail.
critical issue
starkest
directives,
agree
Judge
I
with
the DOD
Sil-
by
fashion
Steffan’s case is whether mem-
standing
berman
does
have
that Steffan
may
discharged
ber of the armed forces
be
may
bring
facial
to sue
that he
and
on the sole
of an admission of his
basis
regulations.
I therefore
challenge to those
We believe that
orientation.
he
Judge
opin-
join in
III.B of
Silberman’s
Part
may not and
therefore dissent.
we
judgment
ion
of the court.
and concur
I. BACKGROUND
Judge
Dissenting opinion filed
Circuit
WALD,
Judge
whom Chief
EDWARDS
long
complicated
This case has a
and
histo-
join.
Judge
and
ROGERS
Circuit
ry.
majority’s summary of that history
The
incomplete
important respects
mis-
WALD,
Judge, dissenting:
Circuit
leading.
appraisal
competing
A fair
beginning,
pre-
the central issue
From the
positions
constitutional
a more
demands
thor-
always
sented
case has
been
exposition
underlying
ough
events
may constitutionally
military
ex-
whether the
stages
litigation.
earlier
of this
membership
clude
the services indi-
1983, Joseph
In
enrolled in
orientation,
viduals
to homosexual
who admit
Academy. During
United
Naval
his
States
of homosexual conduct
without
evidence
there,
years
superiors variously
four
Today’s
or intent
such conduct.
“gifted,” “professional,”
him
praised
appeal
majority reformulates Steffan’s
“outstanding performer” who “exhibited ex-
Through ingenious
avoid
critical issue.
leadership,”
cellent
and an “asset
totally unjustified
presumptions
but
uses of
Academy.”
questioned that he
None
would
inferences,
the court seeks
transform
“undoubtedly
outstanding naval
make an
offi-
concerning
one
homosexu-
Steffan’s case into
cer.”
Navy
in fact the
al conduct—when
has never
than three
engaged
February
intend-
In
less
months
alleged
even
that Steffan
or
graduate
Majority
conduct.
before Steffan was scheduled
ed
in such
See
Intelligence
Academy,
opinion (“Maj. op.”)
695.
from the
the Naval
(“NIS”)
report alleging
Service
received
linchpin
court’s
transformation
told two fellow students that
Steffan had
that “a
strategy
assertion
statement
is its
began
an in-
he was homosexual.
NIS
that one is a homosexual”
be “used
quiry that
until June
continued
proxy
for homosexual con-
as a
investigation
report
final
from the NIS
Maj. op.
future.”
past, present, or
duct —
no
homosexual conduct on
found
evidence of
disagree in the most
688. We
fundamental
part of
Steffan.1
claim,
way
and believe that in the
with that
mid-March,
context,
Steffan learned
NIS
military
where homosexual conduct
midshipman.
investigation
He
imposition
from another
results in automatic
investigation,
additional evidence as
light
we
curious
whom
has no
1. In
of this
find it
per-
majority
define the
Maj. op.
that
sons
they
class of
at 687 n. 7. To
to their conduct.”
say
this case not as those "who
at issue in
are
suggest
"no []
that the
had
evidence”
gay
not acted
but have
in accordance
following
regarding
conduct
four-
Mr. Steffan’s
past,”
propensity
with their
as the Ninth
surely
plain
investigation
incorrect—the
month
recently
United States
Circuit
did Meinhold
they
is that
did find showed no
truth
the evidence
(9th Cir.1994),
Dep't Defense,
with his class
June.
charge
Superintendent.
to the
Steffan,
you willing
asked
“Are
to state at
day,
Superintendent
That same
ad-
you
this time that
are a homosexual?” Stef-
vised
that he
to
Steffan
intended
recommend
“Yes,
Captain
responded,
fan
sir.”
Haber-
discharge
Secretary
Steffan’s
to the
of the
meyer informed Steffan that he would not
however,
Navy.
Superintendent,
The
exer-
approval
request,
of his
and that
recommend
authority
permit
op-
cised his
to
Steffan the
“seriously
Superin-
whether [the
he
doubted
submitting
qualified resignation;
a
tion of
he
permit
completion
[Steffan’s]
would
tendent]
so,
forego
that if
stated
Steffan did
he would
study
diploma.”
to receive
of his course of
his
submitting a
discharge.
recommendation of
day,
following
Captain
The
March
Ha-
Brigade Military
bermeyer
April
convened a
Per-
Also on
with
Steffan met
the Acad-
Officer,
Funk,
emy
Major
formance Board to review Steffan’s situa-
Performance
hearing began
introductory
duty
midshipmen
tion.3
whose
it was to
The
counsel
Konetzi,
by Captain
presiding
qualified resig-
remarks
faced with the choice between
officer, including
description
discharge. Major
of Steffan’s nation and
Funk stated
Academy
discharge
require
performance
noting
at the
as “outstand-
would
Steffan’s
Steffan,
your
homosexuality
ing.” He then asked
“I’d like
admission of
on his record.
word,
you
Major
expressed
opinion
a homosexual?”
Funk
Steffan re-
his
that Stef-
“Yes,
Captain
job
sponded
prospects
sir.”
Konetzi contin-
fan’s
suffer
ued,
you
anything
repeated
“Do
have
else to add at
notation. He
the Academic Board’s
“No,
point?”
replied,
urging
Cap-
resign
this
sir.”
that Steffan
than wait
rather
thereupon
discharged.
tain Konetzi
concluded the hear-
to be
Midshipmen
separation necessary,
2. The Commandant of
is the officer
if it also believes
refers the
Academy, responsible
Superintendent
second-in-command at the
only
Academy.
case to the
of the
Superintendent.
Superintendent,
to the
Upon receiving
separa-
a recommendation оf
turn,
Opera-
answers to the Chief of Naval
tion,
Superintendent
must forward it
tions,
subject
policies
and is
to the
of the Secre-
Secretary
Navy.
Superintendent may
of the
tary
Navy.
of the
however,
also,
give
midshipman
elect to
option
qualified resignation
rather than out-
Academy’s Military
3. The Naval
Performance
right discharge.
midshipman
If the
receives and
System provides for several levels
review be-
option, by
doing
elects
exercise this
so
he
midshipman
separated
fore a
from the
right
Secretary
forfeits the
to show cause to the
Academy.
began
Brigade
case
at the
Steffan’s
why
Superintendent's
recommendation for
When,
Performance Board level.
as in Steffan’s
separation
approved.
should not be
The Secre-
case,
Brigade
Performance Board finds in
tary
Navy
makes the final decision wheth-
separation,
authority
favor of
the Board’s
is lim-
approve
separation
er to
recommending
midshipman's separa-
ited
—whether
resignation.
Secretary
Once the
has reached
Midshipmen.
tion to the Commandant of
decision,
Academy regulations
the Naval
do not
separa-
If the Commandant finds in favor of
provide
tion,
for further review.
he makes that recommendation to the Naval
Board,
Academy Academic Review Board. That
Navy’s “processing”
approximately six weeks
tions authorized the
April
Still on
years
nearly
correctly
four
majority
notes that
graduation
after
Steffan.
before
agreed
outstanding performance, Steffan
within
“at various times different bodies
He
qualified resignation.
hierarchy
his
submit
on either
Naval
[the
relied
understanding reiterat-
signed
a statement
Academy’s
regulations]
[a
own
or Directive
discharged if he refused
he would be
Defense],
by the
promulgated
Department of
warning
submitting a
resign,
Maj. op.
or both.”
at 684.
“forfeit
qualified resignation, Steffan would
legal
precipitated
flurry
Steffan’s
attack
authority
higher
cause
right
to show
and in
opinions
district court
why
from the
not be disenrolled
he should
round,
Cheney,
court.
In the first
28, 1987,
Academy.”
May
On
Naval
(D.D.C.1989),
F.Supp.
Secretary
res-
Secretary
accepted
proce-
argued for dismissal on two threshold
ignation.
First,
grounds.
dural
9,1988,
wrote
On December
*25
standing
that
claimed
Steffan lacked
due to
Navy,
permission
Secretary
requesting
of the
“voluntary”
resignation.
his
the
nature of
resignation
graduate
his
and
to withdraw
disagreed, holding
court
The district
that the
Academy.
Secretary referred
from the
The
jur-
no bar to
purported “voluntariness” was
of the
Superintendent
the matter
to the
allegations
Steffan’s factual
estab-
isdiction.
“strongly”
de-
Academy, who
recommended
injury-in-fact
(separation
lished
the
request.
that be-
He stated
nying Steffan’s
Academy) fairly traceable to defendants’ ac-
being a homo-
“Mr.
admitted to
cause
Steffan
regulations
(adoption
tion
and
of
enforcement
aptitude
“had
to be
sexual” he
insufficient
barring self-declared homosexuals from the
commissioned officer.” In accordance
Academy)
by
and
redressable
court
recommendation,
Secretary disap-
declaratory
(through reinstatement
request.
proved Steffan’s
conferring
judgment),
clearly
thus
Article III
filed this action on December
Steffan
standing.
Id.
118-19.
requested
regu-
“the
ruling
He
that
1988.
argued that
government
The
also
Academy
pursuant to which
lations
the Naval
had failed to exhaust his administrative rem-
...”
on the
are unconstitutional
acted
resignation
It claimed
if
edies.
that Steffan’s
alia,
government
had
ground, inter
truly involuntary,
Board for
were
Correc-
equal protection
the Due
him
under
denied
(“BCNR”) could
tion of Naval Records
afford
by
Clause of
Fifth Amendment
Process
reinstating him
“complete
him
back
relief
resign
forcing him to
after a determination
Academy.”4 Id. at 119. The court
into the
solely on
aptitude’ predicated
“‘insufficient
argument
grounds.
rejected this
on two
complaint did
orientation.” The
sexual
[his]
First,
empowered to
the BCNR
rein-
was
regulations
specify
which
were at issue.
Steffan,
but
to forward
matter
Indeed,
state
colloquies
this court
several
between
Secretary
Navy; yet the
Secre-
to the
for both
and the Secre-
and counsel
Navy
already
tary
once considered
argument
had
during oral
in banc demon-
tary
rejected
request
Steffan’s
withdraw
govern-
that neither Steffan nor the
strate
regula-
resignation.
the BCNR thus
precisely
Appeal
ment were certain
which
(D.D.C.1989) (citing
major-
F.Supp.
government
put
Defen-
4.
at no time
forth the
The
8).
argument
ity's
Reply
had failed to
novel
that Steffan
dants'
Brief at 21 n.
because the
exhaust his administrative remedies
Circuit,
Dep’t
v. U.S.
The Ninth
in Meinhold
agency
granted
have
BCNR or some other
could
Cir.1994),
(9th
recently
Defense,
On remand to the
the armed
gov-
district
Essentially,
ernment
forces.
Id. at 13-16.
summary
and Steffan
cross-filed for
court
judgment.
court,
reasoned that
The district
v.
because Steffan’s statement of
Steffan
Cheney,
F.Supp.
(D.D.C.1991), rev’d,
might
orientation
day”
indicated he
“one
en-
(D.C.Cir.1993),
misconduct,
tary environment who, shipmen “possess who certain traits which by their state- or homosexual conduct ments, engage are undesirable commissioned officers” propensity demonstrate processed separation in accor- impairs “may be seriously in homosexual instruction.” United States mis- dance accomplishment of Academy Regulation, Naval COMDTMIDN ad- presence The of members sion. 1987). (July 1610.6Í Military Instruction Ch-2.15.1 ability versely of the affects “problems ... order, They go on to a number of list discipline, good to maintain Services of themselves to warrant morale; sufficient among mutual trust to foster Academy.” from Id. at separation the Naval servicemembers; integrity of ensure the Among “problems” is: these command; Ch-2.15.3. system to facili- rank and of assignment deployment and worldwide tate Homosexuality. sepa- The e. basis for frequently who must of servicemembers previous, prior service ration include af- close conditions and work under live current service conduct or statements. or privacy; fording minimal to recruit en- Homosexuality includes member Military Ser- maintain members in, attempting engage soli- gaging or vices; public acceptability to maintain engage in a citing another to homosexual service; prevent and to breach- act or acts. It also includes statements security. es the member that he or she homosexual bisexual, marrying or or the member or in this section: b. As used attempting marry person to be known (1) person, regard- means Homosexual biological the same sex. in, sex, engages desires to who less Navy regulations Id. at Ch-2.15.3.c. in, engage in homo- intends or no contain further definition “homosexual.” acts; sexual opinion The court devotes the bulk its regulations. majority Navy offers equate which to (3) two different theories bodily con- A act means “homosex- bare-boned statement of tact, per- Steffan’s passively or actively undertaken past uality” with or intended homosexual mitted, sex of the same between members First, prop- says Navy could conduct. de- satisfying sexual purpose for the erly statement have concluded sires. “likely” to in homosexual that he was separation may include c. basis Maj. op. at 685-86.10 conduct future. service, or service preservice, prior current Second, have taken his state- could A shall member conduct statements. al- that Steffan had ment as admission if one or separated under this section engaged homosexual conduct. ready past approved findings is following more of the majority’s argument appears The nub made: “homo- when admitted his to be that
sexuality,” actually “saying” one he was *29 (1) engaged things: already “I have three of (2) stated or she The member has that he (2) conduct”; to “I intend in homosexual there is a homosexual or bisexual unless (3) conduct”; “I or engage homosexual is not a finding further that the member а conduct, but engage in homosexual desire bisexual. homosexual or engage intend to I do not or 1332.30, by orien- simply am homosexual 32 conduct —I 1332.14 and DOD Directives 11 trinity (1991). possible 41, this A tation.” Given App. Part C.F.R. Maj. op. This, course, the two. See Navy’s "propensity" no distinction between is the 10. stages 689-90. argument, the earlier familiar from however, court, step goes litigation. a now ap- meanings of These three "homosexual” further, suggests be- the connection Directive, explicitly pear which states in the DOD is far tween orientation and conduct regard- person, part: a means "Homosexual actually “propensity”; closer than mere there in, in, sex, engages desires less who 708 ”)
meanings
declaration of homo-
[must]
to Steffan’s
circumstanced
be treated alike.’
continues,
(citation omitted).
sexuality,
mili-
argument
Rationality
also
review
tary
compels
challenged legislation
entitled to infer that
meant
that the
“find
second,
footing
subject
or
third.
the first
but not the
See id.
some
the realities of the
Doe,
legislation.”
addressed
v.
Heller
disposition
chal-
The court’s
of Steffan’s
-U.S.-,-,
2643,
2637,
113 S.Ct.
125
basically
lenge to the DOD Directive is
(1993).
L.Ed.2d 257
First,
the court contends that Stef-
same.
justifi-
Thus certain kinds of motivations or
“as-applied” challenge
regula-
fan’s
discriminatory government
cations for
behav-
Navy
tions fails because the
was entitled to
categorically
ior have
found
been
“irrational.”
his
infer “conduct” or “intent” from
admis-
government
example,
For
depriving
actions
“homosexuality”; he
has not
sion of
therefore
equal protection
individuals of
of the laws
affirmatively
prong
shown
that the “desires”
prejudice
on the
basis of
sole
invidious
or
regulation
prong
of the
Steffan claims
—the
antipathy
unreasoned
can never be deemed
applied”
ever
is unconstitutional “as
ac-
—was
City
“rational.” See
Cleburne v. Cleburne
tually “applied”
Maj. op. at
to him.
693-96.
Center, Inc.,
446-48,105
Living
432,
473 U.S.
Second,
“prudential standing”
Steffan lacks
3249, 3257-59,
(1985),
S.Ct.
709
“homosexuality.”
military
special
has no
tantamount to no
rationality review would be
manifestly
competence
question.
inconsis
to decide this
To the
review at all —a result
See,
precedent.
contrary,
“rationality”
Supreme
reviewing
Court
of such
tent with
Williams,
55, 61-64,
legal
457 U.S.
e.g., Zobel v.
inferences —with
attendant
conse-
2309, 2313-15, 72 L.Ed.2d
672 quences
102 S.Ct.
from status to conduct falls
—drawn
Moreno,
533-38,
(1982);
properly
expertise
Third, military’s recognition of the dis- tinction between homosexual orientation and Military Expert Recognition 1. conduct rises to a full-blown status in the Distinction Orientation/Conduct Secretary’s policy newest on homosexuals in recognizes itself a fundamen- 19, 1993, military. July On after Stef- tal distinction between homosexual orienta- separation, Secretary fan’s issued a mem- tion and conduct. Di- The DOD Department orandum to the Defense com- separated rectives under which Steffan was structure, stating: mand expressly distinguish between them: policy Department [I]t is the person, regardless judge suitability persons Homosexual means Defense to sex, in, in, engages who desires serve the armed forces on the basis of intends in homosexual their conduct. Homosexual conduct will be grounds separation acts.... from the statutory regulatory 13. It is settled rule of tion” because even an individual who claims that that, possible, construction where each term he or she is a "homosexual” remain in the given independent meaning. should be Weinberger Hynson, See finding” service if there is a "further that he or Dunning, Westcott and Appellees’ she is not a "homosexual.” See Brief Inc., 2469, 2485, explain We 688-90. later our view that the (1973). L.Ed.2d 207 language applied to Steffan simply Secretary's will not bear the construction. Essentially, Secretary that the claims DOD See at 696-98. regulations give presump- infra rise to a "rebuttable
711
ground
they
convincing
that
no
is considered
offer
services. Sexual orientation
jurist,
matter,
rationale.
In the words of one
Ben-
and homo-
personal
private
and
explicitly
Shalom “abandoned
the distinction
not a bar to service
orientation is
sexual
between orientation and conduct which has
manifest-
entry or continued service unless
any
in other
been stressed
eases.... without
by
ed
conduct.
evidence in the ease before it and without
Defense, “Policy on Homosex-
Department of
authority
any
citation to
kind.” Jantz v.
Forces,”
in
Armed
cited
ual Conduct
(D.Kan.
Muci,
1543,
F.Supp.
759
1547 n. 2
1, Stejfan v.
Appellee, Addendum at
Brief for
1991)
added),
(emphasis
rev’d on other
(D.C.Cir.1993).
Aspin,
F.3d 57
The most
8
(10th Cir.1992),
grounds,
We are not
Rymer
pre-
Judge
n.
noted that when an
ment’s contention in this case smacks
cisely
stereotypical
assessment
individual admits or has been found to en-
the sort
acts,
Reed,
swpra
gage
past
at
homosexual
forbidden
Stanton and
see
688;
bottom,
necessarily
and the ma-
does not
infer future homosexual
Rather,
saying
gay
long
“ap-
jority
to be
service-
conduct.
so
certain
seem
findings”
including that
proved
heterosexuals —must be
are
members —unlike
made—
incapable
controlling
longer
individual no
“desires” to
presumed
their sexu-
majority's attempt
explain
Five West
this irration-
to translate into forbidden conduct.
18.
n
currently facing
players
ground
Point
football
al difference in treatment on the
charges
"groping”
during pep
female cadets
permissible
"heterosexuals have a
outlet for their
rally; seventy-six percent
1993 class of
particular
homosexuals in
sexual desires whereas
not,"
report experiencing
cadets there
some
Maj. op.
women
is undercut
do
"homosexual,"
Randolph, Army
Eleanor
form of harassment.
by military's
own definition of
'Groping,' Washington
Players are Accused
being
which includes individuals who admit to
Post,
2, 1994,
1332.14(H)(l)(b)(2).
Nov.
at Al & A16. Under Acade-
“bisexual.” DOD Directive
rules,
punish-
my disciplinary
the most severe
obviously
“permissible
Bisexuals
have a
outlet
alleged
the accused athletes face for their
ment
for their sexual desires.”
suspension
ninety days.
Id.
misconduct is
Moreover,
the notion that
recent events belie
admission,
“permissible
outlet
three months after the initial
because heterosexuals have
For
desires,”
sought
particular
unsuccessfully
their "de-
the NIS
evidence of homo-
for their
sexual
part
likely
conduct on the
of Mr. Steffan.
sires” are less
than those of homosexuals
sexual
it.”).
per-
disapprove
prior
acts —the DOD Directive
when
if
And
permit
regard-
mits such servicemembers
remain
conduct does not
an inference
military.
Directives 1332.14 and
future
DOD
a conclusion is still
justifiable
Judge Rymer correctly concludes
1332.30.
less
when based on mere orienta-
“wholly
person’s
that it is not
rational” to infer future
tion or “desire.” “[A]
inclinations
homosexual conduct from a mere statement
...
beyond
and ‘fantasies
are his own and
*34
“homosexuality”
of
at the same time a similar
government....”
the reach of
(quoting
Id.
necessarily
past
Slaton,
inference is not
made from
49,
Paris Adult Theatre I v.
413 U.S.
by professed
homosexual conduct
heterosex-
67,
2628, 2641,
93 S.Ct.
however distasteful conduct, not based on populace. cation because was or to the alcoholic). status as chronic accepted even principle was This same Act’s broad upheld the Smith cases that Thus, fears of internal sub- even Cold War activities. De- subversive proscriptions of Supreme not induce the Court version could of Com- widespread fears spite the nation’s presumption that the kind of to countenance state, to overthrow the munist threats majority argues prosecutions never allowed Supreme Court adopts inference of future miscon- here —an sympathies. private merely for Communist of inchoate basis of an admission duct on the States, example, in For Scales United “desire,” any specific in- unaccompanied by 1482-84, 221-24, infer- engage in misconduct. Such an tent (1961), Supreme con- Court L.Ed.2d legal prin- repugnant to time-honored ence is “membership clause” Act’s strued Smith *35 sanctity person’s of a ciples guard only upon proof of both conviction to allow against governmental “thoughts and desires” membership” in a communist-affiliat- “active “specific and a intent” to organization ed control. the Government of the United overthrow Indeed, already ap- numerous circuits have accompanied Only if intent member- States. plied this axiom to homosexual status held, the statute be ship, the Court would groups gay of and lesbian student context established, and therefore
brought “within
recognition
state universities. The
denied
crimi-
presumably constitutional standards of
228,
argued
organi-
Scales,
universities
that because such
imputability.”
20.The
that
the cited cases
ment
homo-
692,
Amendment,
ban).
Maj. op.
involve the First
sexual
point.
process
misses our
The fundamental due
prevents
govern-
notion that the Constitution
Throughout
proceedings,
Navy
these
has
inferring
day
ment from
thаt individuals will one
strenuously urged that “celibate homosexuals”
proscribed
conduct on the sole basis of
subject
discharge.
supposed
are not
This
ex-
by
their homosexual orientation is unaffected
ception
rationality
alone casts doubt on the
scrutiny applied
given
level of
in a
case.
that those who are homosexual
inference
or-
ientation
fail
will
to exercise their self-control.
Moreover,
Gay
as the
Alliance court's reliance
equal protection
on both First Amendment and
suggests,
single piece
rationales
see 544 F.2d at
a line
22. The
of evidence in this record
equal protec-
regarding
between the First Amendment and
what homosexual
ac-
servicemembers
government’s
tually
prospect
tion harms wreaked
dis-
do
faced
when
of harsh
criminatory
admitting
penalties
of individuals
treatment
for homosexual conduct can be found
may
facilely
homosexual orientation
not so
in Dr.
Green’s Declaration to the
Richard
Dis-
Green,
Although
Psychiatry
drawn.
Mr. Steffan has chosen to
trict Court. Dr.
a Professor of
terms,
UCLA,
equal protection
frame his case in
he
asserted that
anecdotal
"substantial
II,
might
challenged
government's
[suggests]
during
well have
at-
evidence
World War
tempt
speech
identity
gays
militaiy
engag-
simply
to control his
on sexual
on
in the
refrained from
grounds.
First Amendment
See David Cole &
in homosexual conduct in
to avoid the
order
Jr.,
(J.A.
Eskridge,
Hand-Holding
imposed”
penalties
William
From
harsh
that could be
Sodomy:
History
citing
First Amendment Protection Homo-
Out
Coming
Under Fire: The
Conduct,
(Free Press,
(Expressive)
Gay
sexual
29 Harv.C.R.-
Women World War
Men and
Two
(1994)
1990)).
(detailing
C.L.L.Rev. the First Amend-
an admis-
A rational connection between
majority suggests that
Finally,
“homosexuality”
con-
and homosexual
against inferring il
sion of
prohibition
constitutional
lacking
the conduct
equally
whether
thoughts or desires
duct is
legal conduct from mere
future;
past
and our Constitu-
involving “crimi
inferred is
apply in a case
does not
drawing
government
prohibits the
“employment
tion
punishment,”
nal
but
Supreme
case. The
majority
that inference
either
Maj.
op. at 682.
deeision[ ].”
ruling in Robinson v.
just
and Court’s
It
as irrational
is mistaken.
California—
attempt to
holding
a state’s
government to
unconstitutional
fundamentally unfair for the
addiction
absence
“employment”
criminalize narcotics
draw such an inference
Indeed,
hinge
on whether Cali-
proof of use —did
the Su
other.
context
suspected
anticipated future use or
fornia
indicate
preme Court’s decisions
past
may
punish nor make
use.
neither
solely
on the basis
“employment decisions”
Navy
majority’s assertion
membership
political affiliations or
citizens’
past
“admitted”
con-
infer that Steffan
organizations.” See Elrod
in “subversive
acknowledged his “homosexual-
duct when he
347, 372-73,
Burns,
96 S.Ct.
just
on the same old
ity”
another variation
(1976)
(prohibiting dis
719 ease, justification prejudice they In assume to be both haves. either widespread deeply and held.’ without rational basis. 433, Id. at 104 at 1882. S.Ct. review, rationality we must assume
Under
reasoning
The Court extended this
to ra
premise
would not
that heterosexuals
City
tional-basis review in
Cleburne v.
wish to
with individuals of homosexual
serve
of
Inc.,
Center,
Living
432,
Cleburne
473 U.S.
well-founded,
though
orientation to be
even
(1985).
313
87 L.Ed.2d
may personally
higher opinion
we
hold
Cleburne,
city
zoning
per
had denied
maturity
our servicemembers’
than do their
mentally
mit to construct
a home
policymakers.
accept
We must
too the un
neighborhood,
argu
disabled
a residential
likely
forcing
assumption that
heterosexuals
residents,
neighborhood
angered by
will,
fact,
to serve with homosexuals
lower
home,
presence
pose
would
a dan
morale, impair
discourage
discipline, and
en
ger
mentally
disabled residents. The
despite
experience
our
with the ut
listment —
Palmare)
rejected
(citing
Court
argu
falsity
predictions
ter
of similar
voiced
giving
private
ment as
effect to irrational
opponents
Truman’s
of President
1948 execu
biases,
provide
could not
held that it
requiring
integration
tive order
racial
denying
permit.
rational
basis for
Cle
Secretary
armed forces. See Dahl
burne,
In Palmore v. (1984), S.Ct. L.Ed.2d Su justification The Directives also offer the preme Court a state overturned court’s order presence that the mere of individuals of ho- away that took a child from her mother and mosexual orientation in will in- custody solely delivered to her father be privacy vade of heterosexual servicemem- cause the mother married an African- had argu- § DOD Directive H.l.a. This bers. American. The state court reasoned that the things. ment two could mean one of subject child would be discrimination in concern is homosexual either that service- community par her if she were live with ogle members will heterosexual col- their opinion, ents of mixed In a unanimous races. leagues regardless quarters, in close or that — Supreme if Court held even place ogling of whether such takes —hetero- impaired, child’s welfare would the court experience person- will sexuals an invasion custody could not on that determine basis privacy merely al their own fears. give because the decision effect to argument long. Neither detains us prejudice of others. This the Constitution argument “desirers” will would not allow: *40 rеproduces presumption stare the flawed may thoughts Private biases outside the reach of that mere and desires will translate law, cannot, directly the into offensive conduct. The contention that but the law or indirectly, give protected effect. heterosexuals must be from their them ‘Public offi- turn, replicates argu- uphold may ogling, cials sworn the Constitution fears of the duty by governmental action should be bowing not avoid a constitutional ment by stereotypes hypothetical private prejudices of controlled the and effects racial 720 Judge § justifica- H.l.a. As purported mail. Directive parties. Both DOD third
of aptly pointed Norris Ninth Circuit has review. fail rational-basis tions military’s policy increases out, however, the by Secretary the I. Rationales Not by making gays and the risk of blackmail Offered of for in the closet for fear lesbians remain recent decision Supreme Court’s The careers.26 Watkins United feiting their rationality review v. Doe Heller suggests (9th Army, 875 F.2d Cir. States 730-31 arguments prof not consider whether must denied, 1989) (Norris, J., concurring), cert. provide government might by the fered 384, 112 L.Ed.2d 395 — regulations. for U.S. rational basis the (1990). at —, S.Ct. at 2642-43. justifica one such court relied on district discharge military’s that the We conclude preventing spread the of AIDS the tion — on basis of his Joseph the sole government appeal forces. The on armed homosexuality not rational- admission mili this rationale for the not endorsed has ly legitimate government goal. to a related tary’s and neither do we. Homosexu policy, majority the that this disagree We case the spread cannot AIDS virus. al orientation only past whose or future concerns Homosexual, heterosexual, conduct can.— solely from existence be inferred the participant carries the This if one virus. “homosexuality.” acknowledgement mere illegitimate assump justification relies on the permit discharge on of such an To the basis will that homosexual servieemembers tion principles both inference would contravene prohibited rules and break the guaran- rationality and constitutional review may spread conduct that the dis Additionally, non- tees. we find no rational ease, but heterosexuals —to whom sexual justification regulations, for inso- conduct the pose any is not conduct forbidden —will simple penalize far as admission of danger. homosexuality. We therefore believe that Secretary military into on which the Steffan should be reinstated A final rationale service, graduate rely, permitted from the but to which Directives does allude, “security” posed by Academy, commissioned as a is the threat ho- and alleged susceptibility officer.27 mosexuals’ to black- Indeed, nominate, although and and no with the Advice Con-
26. offers Senate, military’s policy appoint evidence that decreases sent shall ... Officers of sources, States....’’). risk of blackmail from external amici the United indicating policy that the cite research increases ”[e]very physically qualified We are told that opportunities sexual within for harassment graduate Academy] the Naval is commis- [of particularly example A notorious the services. Navy or sioned in the unrestricted line of the group at Kais- involved stationed servicemen Academy Catalog Corps.’’ Marine Naval for Pro- erslautern, Germany, called who themselves Indeed, (1982-83). spеctive Midshipmen even reputedly "dykebusters.” sys- These men made graduation, before Mr. Steffan himself was as a women, tematic sexual advances course nominated a commission matter of for reported those who refused lesbians. See Reagan May President on 1987. The nomi- Shilts, Conduct Unbecomtng: Gays Randy and Lesbi- referred nation was then to the Senate Armed also, (1993). Military U.S. 496-97 See ans in the Committee, reported favorably Services which Dodge, Military Michell M. Benecke & Kirstin S. May thereafter con- Senate Fields: 'Women Nontraditional Job Casualties nomination unanimous con- firmed Steffan's Homosexuals, the Armed Forces' War on 12,046, 11,997, 12,033, 12,- sent. 133 486, 12,636 (1987). Cong.Rec. (1990). LJ. 215 Women's Harv. reflects, then, Secretary’s request rehearing So record for in banc far as the 27. The impediment receiving single to Steffan's commis- raised the issue whether court has authority Spe- order sion was his constructive Steffan commissioned. Appellees’ cifically, Secretary question Academy. May did not Naval 20, See Letter of while our (any prepared authority at 1 commission to order Steffan's reinstatement into Navy graduation Academy, have been ineffective because and his from the Steffan "would complet- Academy prior to requiring [he] ... left the Naval he claimed commis- military requirements upon nec- intrudes the authori- the academic sion Steffan somehow essary commissioning”). Secretary ty granted con- President and the Senate under authority appointments cedes court has the to remove clause of the that this Constitution. II, (“The by ordering impediment reinstated § art. President ... shall Const, *41 Ohio, Commission of Nebraska Public ConClusion Commission, Service American Bus As penalize person For the sociation, Railroad Commission of Tex acknowledging his sexual orientation runs as, Public Utilities Commission of the deeply against grain. our constitutional It California, State of American Insurance has, believe, precedent place we no in our Association, National Association of In traditions, national spring pro- which from a dependent Insurers, Colorado Public respect found for the freedom to think and to Commission, Utilities and Tennessee be what one chooses and to announce Commission, Public Service Intervenors. majority’s the world. ingenious plays presumptions disguise and inferences cannot AMERICAN INSURANCE ASSOCIA injustice lies the heart of this TION, and National Association of Inde come, years case. we will look back pendent Insurers, Petitioners, dismay these unconstitutional at- tempts to upon enforce silence individuals of orientation, INTERSTATE COMMERCE COMMIS Pragmatism out. should not be allowed to SION, and United States of Amer- trump principle or the soul of a nation will ica, Respondents, respectfully
wither. We dissent. Regulatory
National Utility Association of Commissioners, Trucking American As sociation, Conference, American Movers Interstate Truckload Carriers Confer ence, Oregon Utility Public Com mission, Intervenors. 93-1362,
Nos. 93-1450. NATIONAL ASSOCIATION OF REGULA United Appeals, States Court of COMMISSIONERS, TORY UTILITY Il District of Columbia Circuit. Commission, linois Commerce Kansas Corporation Commission, Oklahoma Argued Sept. 1994. Corporation Commission, State Decided Dec.
Rhode Island & Providence Plantations Carriers, Division of Public Utilities &
Public Service Commission of South
Carolina, Montana Public Service Com
mission, Highway and Arkansas State
Commission, Petitioners,
INTERSTATE COMMERCE COM
MISSION and United States of
America, Respondents, Trucking Association,
American American Conference,
Movers Interstate Truck Conference,
load Carriers Alabama Pub Commission, Oregon
lic Service Public
Utility Commission, Louisiana Public Commission, Mississippi
Service Public Commission,
Service Public Utilities graduated. commission, specter raised appears Secre- over Steffan’s to be at tary, might juncture hypothetical President then refuse to case that is unneces- perform essentially duty sary ministerial of hand- to resolve.