Richard Richenberg v. William J. Perry
73 F.3d 172
8th Cir.
1995
Check Treatment

*1 Before RICHARD S. HANSEN, LOKEN

Judges.

PER CURIAM. F. Richard enjoin this action to the Air commenced him, discharging full ad Force from after a hearing, pro ministrative he has a or intent in homosexual contends that the mili Ask, tary’s policy regard Don’t Tell” “Don’t homosexuals, ing explicitly which is autho by rized U.S.C. rights. violates constitutional The dis his summary judgment trict for granted court1 government. Richenberg appeals injunction preventing now his dis seeks charge pending deny requested injunction, We First, Richenberg primarily two reasons. persuaded has not us he has a substan- STROM, Judge for the Nebraska. 1. The LYLE E. States District District of HONORABLE

173 injunction abeyance tial likelihood of success on the merits of his that would in hold a appeal. military That must be the standard when policy adopted pursuant to a statute grant preliminary considering whether to a “extensively by Congress considered in hear injunction preventing implementation the of debate, ings, floor and in committee.” Rost product lengthy that was the of a statute 57, 72, Goldberg, ker v. 453 U.S. 101 S.Ct. involving Congress public debate both and 2646, 2655, (1981). 69 L.Ed.2d 478 States, 44 the President. See Able v. United reasons, foregoing For the the motion for Cir.1995). (2d 128, 131-32 lacking Even F.3d injunction pending appeal is denied. guidance specific the of a re “[o]ur military regulations challenged view of on RICHARD S. grounds First Amendment is far more defer dissenting. ential than constitutional review of similar regulations designed or for civilian soci laws grant I injunction would the motion for 503, ety.” Weinberger, v. 475 Goldman pending appeal expedited and establish an 507, 1310, 1312, 106 S.Ct. 89 L.Ed.2d 478 briefing that schedule would enable this case (1986). Here, guided by specific leg we are promptly to be submitted for decision on the findings supporting challenged islative the merits. Because the Air unless en- 654(a). policy. See 10 U.S.C. joined, discharge appellant, intends to the generally upheld military’s prior, the courts just in a policy, citing more restrictive the need for days, possible few it is not my to state rea- judicial military deference to decisions re opinion. sons in an I extended would to like garding rationally required what rules are to however, briefly, comment on the likelihood See, military e.g., maintain effective forces. appellant’s prevailing of the on (7th Marsh, Ben-Shalom v. 881 F.2d 454 Captain Richenberg guilty has not been of denied, Cir.1989), 1004, cert. 494 U.S. 110 any prohibited conduct. He has not even (1990). 1296, 108 L.Ed.2d 473 Like S.Ct. the been of conduct. accused such His offense is court, persuaded by district we are not Ri- simply that he is a homosexual and that he ehenberg’s showing to date that the new has said he is. the Under of statutory policy is unconstitutional. the of homosexual sta- Second, Richenberg has not made a suffi- tus, alone, standing grounds is not for dis- showing injury irreparable cient of “to over- charge. say But for a service member to cutting against general the[ ] ride factors that or grounds. he she is homosexual can be availability injunctions preliminary in Gov- It is said that such a statement a creates personnel Sampson ernment cases.” presumption pro- rebuttable that one has a 61, 84, 937, 950, Murray, 415 U.S. 94 S.Ct. prohibited to (1974). April L.Ed.2d 166 In after Captain Richenberg’s It seems to me that eight years in on First Amendment attack this state of voluntarily separated. asked to be When good affairs has a chance of success. First denied, request that was he advised his com- all, objectionable his mere status is not manding officer for “I the first time that Indeed, military policy. under current discharge homosexual.” These contested status, itself, doubt if in and of could be made proceedings Having followed. exhausted Air ground discharge consistently a with the procedures, Richenberg now faces First Amendment. This would amount to discharge. government honorable con- control, and, thought speech protected, if is that, ultimately prevails cedes if he in this unspoken thoughts must be too. The action, further pay reinstatement with full back benefits, Captain Richenberg circumstance that has comparable monetary or other re- lief, openly declared his status is no more than likely In would follow. these circum- stances, speech. It threatens no one and has dis- showing irrepa- there has no been States, injury. obeyed no much rable Harris v. order. This the current See (8th Cir.1984). addition, military policy appears recognize, In to 745 F.2d government purports presumption, it to a on we see obvious harm to the create based statements, public granting preliminary nothing interest in a more than honest equals propensity to act. status or desire appears to to at best presumption me be

This a not

questionable. If I am heterosexual and

married, commit I have *3 covetous, I have a If I am do

fornication? angry, If I

propensity to steal? to strike someone or to

have between I think not. distinction

kill? pre-

disposition and action is clear. The policy ig- in the current

sumption contained Many people, homo-

nores this distinction. heterosexual, are celibate. The

sexual and entirely aspect overlooks this

of human conduct. CAMBEROS, A.

Francisco

Plaintiff/Appellee, Iowa;

Terry BRANSTAD, Governor of Grossheim; Ault; Jerry John

Burt, Defendants/Appellants, Doe(s), 1-9; Doe(s), Jane

John Defendants,

1-9, Weiss; Joyce Carver;

Kathy Susan

Meyer, Defendants/Appellants. of Appeals, States Court

Eighth Circuit. Oct.

Submitted 1995. 1995.