Sergeant Perry J. Watkins v. United States Army

priate sanction directed alternative personally.

counsel

Appeal Dismissed. WATKINS, Perry

Sergeant J.

Plaintiff-Appellant, al., ARMY, et

UNITED STATES

Defendants-Appellees.

No. 85-4006. Appeals, Court of

United States

Ninth Circuit. April

Argued and Submitted

Decided Feb. or be- that his sexual orientation

claimed way military in with interfered havior contrary, Army To the re- functions.1 is no found “there evidence view board his behavior has had either suggesting that upon performance, effect unit degrading upon job his discipline, or own or morale ER at 26c. performance.” reg- Army promulgated new In 1981 the disqualifica- ulations which mandated Army from the of all homosexuals tion length quality or regard to the without Cullen, Lobsenz, Se- &Wolfe E. James to these military Pursuant service. their attle, Wash., plaintiff-appellant. for Army notified Wat- regulations, the new Civil Hawkens, Atty., Asst. U.S. Roy E. discharged and de- kins he would be defendants-ap- D.C., for Div., Washington, homosexu- of his nied reenlistment pellees. action, court Watkins federal ality. In this reg- Army’s actions and new challenges the statutory and constitu- on various ulations grounds. tional CANBY, and NORRIS Before I Judges. REINHARDT, Circuit three-year tour of During initial Watkins’ NORRIS, Judge: Circuit and United States duty, he served 19, Perry age of at the August In assistant, personnel chaplain’s Korea as States in the United enlisted Watkins clerk. before company Even specialist, and Army’s pre-induc- filling out Army. on his began, indicated Watkins this tour form, candidly marked he medical tion that he history form medical pre-induction he question whether response to a “yes” in year la- A tendencies.” had “homosexual tendencies. had Army criminal told an ter, in Watkins “qualified Watkins considered nonetheless gay he had agent that been investigation him into inducted admission” in engaged and had age of 13 since the in years served fourteen Watkins ranks. other acts with two unspecified homosexual his became, in words Army, involved these acts Whether servicemen. re- officer, our most “one of commanding con- form sexual sodomy some other Excerpt of soldiers.” spected and trusted Al- the record. not evident duct is 26d. Record [ER] investigated Watkins though the sodomy, a committing allegedly 1968 for though Watkins’ Even soldier, investiga- for a offense criminal knowledge, Watkins always common De- lack evidence. dropped for tion was F.Supp. Army, 561 States United investigations of Watkins’ repeated spite Army has never (W.D.Wash.1982), the same activity members between two ual "sexual orien- opinion we use term In this homosexual, are their orientations individu- of an sex whether heterosexual, the orientation tation" to refer bisexual, the terms and we use his actual sexual preference, not sexual al’s sexual orientation acts” whose and "heterosexual conduct” Individuals conduct. “heterosexual relationships for sexual activity a desire members creates them between two to sexual to refer a hetero- opposite sex have persons of with their orientations opposite sex whether whose sexual Individuals heterosexual, orientation. sexual homosexual, or bisexual. for sexual them a desire creates orientation relationships “gay” and opinion, the terms Throughout this sex have the same with synonymously to de- used will be "homosexual” orientation. orientation. persons of homosexual note contrast, "homosexual the terms we use sex- refer to acts” and “homosexual conduct” behavior, manding his USAAG, 1968 statement that he officer in Captain unspecified Pastain, homosexual acts requested requali- that Watkins be two other soldiers is the evidence position. Captain fied for the Pastain stat- before this court of Watkins’ actual sexual ed, daily personal “From I contacts can 1430-31 & n. 2. conduct. outstanding professional attest to the infra atti- tude, integrity, suitability assign- expired enlistment When his first PRP, ment within the of SP5 In Watkins. received an Watkins honorable dis- assigned months he has been to this charge. In 1971 he reenlisted for a second 6V2 term, problems unit SP5 Watkins has three-year had no Army which time the “eligible in judged reentry dealing assigned him to for what-so-ever with other be on duty.” Army again has, fact, In 1972 the in- active members. He in become one of vestigated allegedly Watkins for commit- respected soldiers, our most and trusted ting sodomy again in- and terminated the superiors both his and his subor- vestigation for insufficient evidence. In examining Army dinates.” ER at 26d. An Army accepted applica- 1974 the Watkins’ physician concluded that Watkins’ homo- six-year tion a reenlistment. sexuality appeared problem to cause no in work, deny his and the decision to Watkins Army In 1975 the convened a board of position a Surety Nuclear Personnel officers to determine whether Watkins Reliability Program was reversed. discharged should be because of his homo- tendencies. On this occasion his Watkins worked security under a clear- commanding officer, Bast, Captain testified stated, ance without again incident until he that Watkins was “the best clerk I have 15, 1979, in an interview on March that he known,” job that he did “a fantastic —excel- prompted yet was homosexual. This an- lent,” and that homosexuality Watkins’ did which, Army investigation other July company. sergeant not affect the A testi- culminated the revocation of Wat- fied that Watkins’ was well- security kins’ clearance. As Watkins’ noti- problems gener- known but caused no clear, fication of revocation makes complaints ated no from other soldiers. Army based this revocation on Watkins’ The four unanimously officers on the board 1979 admission of homosexuality, on medi- found that “Watkins is suitable for reten- containing cal records Watkins’ 1968 admis- military stated, tion service” and “In conduct, sion of homosexual and on his findings, view of the the Board recom- history (with performing permission Perry mends that SP5 J. Watkins be re- commanding officer) of his female military tained in the service because there impersonator in Army various revues. The suggesting is no evidence that his behavior rely did not on evidence of homosexual degrading has had either upon effect unit conduct other than Watkins’ 1968 admis- performance, discipline, upon morale or engaged unspecified sion that he had job performance. his own SP5 Watkins is homosexual acts with two other soldiers. duty positions suited for in administrative Army accepted October Wat- progression through Specialist rating.” application kins’ three-year another re- ER at 26c. enlistment. In November the United States Army In 1981 the (the promulgated Army Army Artillery Group USAAG) grant- (AR) Regulation, 635-200, chpt. security ed Watkins a which clearance for infor- discharge mandated the of all applica- mation classified as “Secret.” His regardless position regu- tion for of merit. Surety in the Nuclear Pursuant to this lation, (the Reliability Program PRP), Army a new Personnel board convened to con- however, initially rejected discharging sider Although because his Watkins. specifically, explicitly rejected his own board admissions— the evidence be- records — showed engaged that he had fore it homosexual tendencies. that Watkins had in homo- After this rejection, 1968,2 initial Watkins’ com- sexual conduct after the board rec- During discharge proceedings prove these tried to that Watkins had discharging Army from enjoined court from separated be Watkins ommended his statements on the basis he Watkins has stated he “because service Watkins homosexuality. admitting his is a homosexual.” Army, States F.Supp. United discharge Elton, au- Major General court rea- The district (W.D.Wash.1982).3 board, approved this overseeing the thority discharge proceedings were soned directed recommendation finding and Army’s regulation by the barred addition, discharged. that Watkins ¶ l-19b, be- AR jeopardy, double initiative, Elton, his own Major General dis- essentially repeated the cause Watkins finding that an additional made of 1975.4 charge proceedings other acts engaged in homosexual had both court ruled the district argument The district before During oral soldiers. regulatory if lacked the declared that court, Elton Major General for the counsel findings, supplemental discharging enjoined to make authority Army were presented id. the evidence deny and that reenlist- Watkins, it would Watkins support not hearing 601-280, 2-21(c), discharge could ment, the AR If pursuant had en- finding Watkins that duty expired specific tour of a current his when except conduct any regula- homosexual gaged in reenlistment This 1982.5 October Watkins to which along acts unspecified those in 1981 tion, promulgated was which Id. Army The at 257. 1968. admitted AR discharge regulation the with rulings these either of not contested has a nonwaiva- chpt. makes solely on Watkins’ and, appeal, relies on for reenlistment. disqualification ble homosexual as evidence 1968 statement enjoined Watkins’ court nonetheless district conduct. Army prom- fulfilled discharge, and the ap- reenlistment rejecting Watkins’ ise by board voted Army after May admitted homo- of self “[bjecause plication discharge, but before Watkins’ in favor homosexual acts.”6 sexuality as well issued, district actually discharge clearance, security rea- Watkins’ revoke introducing could by the testimo conduct homosexual ripe yet soning was not the issue that sergeant had black staff that a ny soldier of one pending. appeal an administrative had Watkins testimony of another leg” "squeezed his and 259; F.Supp. at F.Supp. see 551 also See 541 he'd him if like had "asked Watkins that soldier dispute thus security is clearance Watkins’ 223. apartment” and that [Watkins’] into to move appeal. this us on before not Watkins at" him. to "stare used Watkins (W.D. F.Supp. Army, 541 States United could the evidence that held district court 4. The however, soldier, Wash.1982). was The first engaged in finding that support Watkins not line-up as the identify in a Watkins unable dis- subsequent to the 1975 conduct (there leg squeezed his sergeant who had black Army’s double that the charge proceedings and base). sergeants at the of black were thousands Army bas- from barred provision jeopardy was not that he testified second soldier Id. The mere- discharge that on statements ing Watkins' him, making pass at had been sure Watkins in the stated had Watkins ly what reiterated against blacks and prejudiced was that he homo- he was discharge proceedings —that homosexuals, had he once that had F.Supp. at 257-58. See 541 sexual. homosexual, he and that awith experience bad of which disciplined a board been had once appeared at time, regulation that At 2-24(c). Army board Id. The awas member. Watkins convenience, opin- However, our ¶ ion will support a evidence did this that concluded Army regulations all refer to engaged in homosexu had finding Watkins Septem- Army’s used paragraph numbers soldiers, and the district with these two al acts date a different update, unless ber contrary finding any court ruled explicitly noted. unsupported arbitrary and been have would Id. state- the evidence. emphasize Watkins’ Again, acts is admitting unspecified homosexual ment supporting August court brought originally suit before evidence had 3.Watkins reinstated, finding conduct. security of homosexual Captain clearance Scott’s his 1981 to Army had That the discharge & n. 2. pro- supra at 1430-31 receiving notice that See but after is evi- conduct convened, his evidence amended no new he ceedings would interrogation of Watkins injunction from dent an to seek complaint in October applied for reenlistment. he time de- at the discharge. court The district against his Army issue whether to reach the clined 5, 1982, requirements placed upon the district court and demands On October Army refusing to reen I enjoined gladly him. welcome another of his admitted homo opportunity him, list Watkins because firmly to serve with holding equi sexuality, was believe that he will be asset to relying estopped from on AR 601- tably assigned. unit to he which 280, 2-21(c). v. United States H Watkins Watkins should be SSG selected to at- (W.D.Wash.1 F.Supp. Army, 551 placed tend ANCOC and a Platoon 982).7 Army reenlisted Watkins for a Sergeant position. Evaluation [Rater’s 1, 1982, six-year November term on performance potential.] of Watkins’ proviso the reenlistment would be duty performance SSG Watkins’ has injunction if court’s were voided the district outstanding every regard. been His upheld appeal. section continues to set the standard appeal Army's of the district While Brigade within for submission of ac- pending, injunction court curate, timely personnel and financial performance profes- rated Watkins’ Keeping transactions. abreast of ever- possi- 85 out of 85 sionalism. He received changing personnel and di- points. Appendix Appellant’s ble rectives, provided Watkins has SSG Brief; 164, Appendix Court Record C. His sound advice to the commander as well ratings perfect included scores for “Earns as to the soldiers within the command. “Integrity,” respect,” “Loyalty,” “Moral suggestion separate His S-l and Per- Courage,” “Self-discipline,” “Military Ap- sonnel Action Center functions and to Initiative,” pearance,” “Demonstrates colocate the Personnel Action Center pressure,” “Attains re- “Performs under Company Orderly Rooms was sults,” judgment,” “Displays sound “Com- adopted immediately and resulted in im- effectively,” “Develops municates subor- proved service both offices. SSG dinates,” skills,” “Demonstrates technical positive Watkins’ influence has been felt “Physical military and fitness.” Id. His throughout the Battalion and will be unanimously recommended evaluators sorely missed. promoted peers. he be ahead his Id. potential SSG Watkins’ is unlimited. Army’s written evaluation of Watkins’ consistently He has demonstrated the ca- performance potential and stated: pacity manage complex to numerous re- exception, Watkins is without SSG one sponsibilities concurrently. quali- He is of the finest Personnel Action Center promotion fied for now and should be Supervisors I have encountered. selected for attendance at ANCOES at efforts, Through diligent his the Battal- opportunity. the earliest [Indorser’s ion Personnel Action Center achieved a performance Evaluation of Watkins’ and perfect processing near rate for SIP- potential.] During DERS transactions. this train- Id. ing period, totally SSG Watkins has been appeal, knowledge. reliable and a wealth of He On we reversed the district requires supervision, injunction. no and with his court’s We reasoned that the attitude, always equity powers “can do” exceeds the of the federal courts could F.Supp. During extraordinarily ag- ruling at 225-32. not this contested district court gressive questioning eliciting argue appeal aimed at a new and does not on that Watkins confession of homosexual conduct from questions. Wat- refused to answer kins, Army’s interrogating officer admitted suspecting This case does not involve an that he had no new basis for asserted gen- Watkins had in additional reenlist or a claim that courts can exercise Army's acts. Id. at 227. eral review of the reenlistment deci- Scott, judicial sions. Watkins Captain does not seek a determi- findings, who made the above applica- nation the merits of his reenlistment also Watkins had found that refused to answer merely judicial questions concerning homosexuality tion. He his seeks a determination and ho- acts, Army mosexual but the district court ruled that that the application must consider his reenlistment finding totally unsupported by regard on its merits without to his evi- F.Supp. homosexuality. F.Supp. Army dence. See 551 at 217. The has See 551 at 218. military homosexuality disqualify not to order officials him not be exercised Army. in the regulations from career Whether or own absent to violate their actions, Army’s not the regulations absence of were re- determination that the regulations, would have constituted un- to the mili- pugnant to the Constitution or process constitutional retaliation or due en- authority. tary’s statutory Watkins trapment, enjoin Army denying from Army, 721 F.2d 690-91 States United reenlistment on the Watkins basis his Cir.1983) (9th On Watkins [hereinafter /]. would be direct contra- remand, the district court held that regulations. of its This vention we cannot regulations repugnant Army’s were do unless the themselves are statutory authority Constitution unconstitutional. Id. Since Watkins does accordingly denied Watkins’ motion and regulations, allege that the either on granted summary summary judgment and applied, petition or as their face violate the Army. judgment favor of the Watkins process entrap- clause or constitute due invoking appealed, jurisdiction our under ment, authority issue the 28 U.S.C. 1291. § requested grounds. relief on those appeal argues on Watkins argument Watkins’ discharging him and de- Army’s actions the First violate Amendment the First nying him reenlistment violate penalizing regarding his statements his process and constitute due en- Amendment homosexuality is somewhat more trouble trapment in of the Fifth Amend- violation Secretary some. See benShalom v. argues ment. He also (E.D.Wis. Army, F.Supp. regulations are discharge reenlistment 1980) (holding violated the arbitrary capricious under the Adminis- by discharging First Amendment soldier Act, 706(2)(A) trative Procedure U.S.C. solely because she stated she was a homo deny him laws sexual when there was no evidence ho No- the Fifth Amendment. violation of conduct). In mosexual contrast benSha- exception process tably, of his due with the however, lom, of Wat the determination claim, proce- makes no entrapment Watkins absolutely homosexuality—which kins’ dis argument. process dural or substantive due qualified regu him service under the rely argu- Specifically, upon he does not based both on his various lations—was protected constitutionally ment that admitting homosexual statements his orien right privacy extends to homosexual 1968 that he and on his statement tation acts. reg engaged homosexual acts. had clearly mandate that homosexual ulations II give presump disqualifying rise acts arguments Almost all of Watkins’ homosexuality, though pre tion rejected reaching their mer can without proof sumption by can be rebutted actu argument denying him its. Watkins’ orientation. al nonhomosexual See infra arbitrary capricious reenlistment was and words, 1434-38. In other under the Act, 5 the Administrative Procedure under any engages regulations, who homosexual 706(2)(A) (1982), fails because U.S.C. automatically § acts dis in homosexual regulations claim that the Watkins does not from service. Since Watkins ad qualified violate the on themselves had mitted in 1968 that he Act. See Administrative Procedure Wat acts, presumed he was under homosexual I, reasons kins 721 F.2d at 690-91. Similar regulations to have a homosexual orien reject tation, two additional claims presump lead us could not rebut that fact, “petition was, clause” by Watkins: his raised his orientation tion because Thus, argument refused reenlist man homosexual. rev discharge for his suit over the de Watkins retaliation Watkins’ dated both regardless his security of his clearance of his reenlistment ocation nial entrapment” he had claim that he had ever stated that process whether “due Consequently, his to believe that tendencies. Army had induced him 1434 judi- no relief from a scrutiny. City

Watkins could obtain intermediate Cle determination that his statements de- Center, cial Living burne v. Cleburne claring his orientation 432, were 3249, 3254-55, 87 protected the First Amendment unless (1985). L.Ed.2d 313 If the discrimination portions that the of the he could also show class, subject burdens no such it is to ordi Army’s that ban homosexuals nary rationality Finally, review. Id. engage who in homosexual acts are inval- challenged regula must decide whether the Marsh, 755 F.2d id.8 See Matthews v. applicable tions survive the level of scruti (1st Cir.1985)(in light of evidence that whether, ny by deciding under strict scruti acts, plaintiff engaged in homosexual a rul- ny, legal necessary classification is ing discharge as to whether her from the compelling governmental interest; serve a Army for statements her about homosexu- whether, scrutiny, under intermediate ality violated the First Amendment would substantially classification is related to an advisory opinion). be an important interest; governmental whether, review, rationality under the clas then, left, We are with Watkins’ rationally legit sification is related to a Army’s regulations deny him claim governmental imate interest. See id. equal protection of the laws in violation of Specifically, the Fifth Amendment.9 Wat argues Army’s regulations kins Ill constitute an invidious discrimination based question We now turn to the threshold on sexual orientation. To address this raised Watkins’ claim: three-stage claim we must in a Army’s regulations Do the discriminate First, inquiry. we must decide whether the portion based sexual orientation? The regulations in fact discriminate on the basis regulation reenlistment Second, of sexual orientation. we must reenlisting bars homosexuals from states judicial scrutiny ap decide which level of in full:

plies asking whether discrimination Applicants disqualifications based on sexual orientation burdens a sus to whom the class,10 pect quasi-suspect apply ineligible [Regu- which would below for RA subject, respectively, Army] make it lar strict or reenlistment at time and Healthy City Doyle, equal protection component 8. Mt. District v. School 9. The of the Fifth (1977), U.S. 50 L.Ed.2d 471 imposes precisely Amendment the same consti- contrary. Healthy, not to the In Mt. the Su requirements govern- tutional on the federal preme governmental Court held that action can ment as the clause of the Four- violate the First Amendment when it is taken imposes govern- teenth Amendment on state motives, penalize for mixed one of which is to See, e.g., Weinberger Wiesenfeld, ments. exercising an individual for his to freedom U.S. n. 1228 n. speech. See id. at 284-87. L.Ed.2d 514 adopted a "but for" causation test: Once a plaintiff demonstrates tutionally protected and a "substantial factor" in his that conduct is consti despised 10. Discriminations that burden some politically powerless groups likely or are so to decision, government’s adverse the burden antipathy against groups reflect those proof government of shifts to the to show that it inherently suspect classifications are and must would have reached the same decision in the See, Doe, strictly e.g., Plyler scrutinized. protected absence of conduct. Id. at 287. however, 216 n. 2394 n. Healthy, discretionary Mt. concerned a groups 72 L.Ed.2d grant Such are decision not to tenure to a teacher who generally engaged constitutionally protected "suspect had speech. in termed classes.” The Su- contrast, case, preme groups This in involves a non- Court has identified other whose discretionary regulation absolutely disqual that history past of entitles discrimination them to ified Watkins from service because he scrutiny protection intermediate under engaging was a homosexual who admitted to in groups doctrine. Such are termed 635-200, 15-3; homosexual acts. See AR AR ¶ Nowak, "quasi suspect” generally, classes. See 601-280, 2-21(c). government’s The burden ¶ Law, Young, Rotunda & Constitutional Ch. Healthy under Mt. reached the same decision in the absence of the to show that it would have (2d 1983). § ed. protected speech by is therefore met the dictates of the themselves. stemming solely episode, ently isolated policy- to exception or for

requests waiver or curiousity [sic], in- immaturity, from not be submitted.... will toxication, of other in the absence and moral questionable of Persons c. homosexual, is a person evidence that be- history of antisocial a character reen- excluded from not be normally will homosexuali- or havior, perversion sexual person, re- is a homosexual A listment. homo- committed person who has A ty. sex, bodily con- desires who gardless of homosexual is an or admitted acts sexual sex, same persons of the tact between that is no evidence there as to whom but passively permit- or actively undertaken acts homosexual engaged in have give or to ted, intent obtain with the military service is during or before either official, pri- Any gratification. sexual 1)_ (See note included. of homosexual- vate, profession public or under being discharged Persons k. determining in considered ity, may be homosexuality_ for 635-200 AR homo- an admitted is person a whether of bodi- Note: consist acts Homosexual sexual. the same of between ly contact ¶ in Although worded 601-280, 2-21. AR per- passively or actively undertaken sex, regu- detail, greater somewhat obtaining or of mitted, intent of homo- separation mandating the lation satisfaction, any propos- or giving sexual (discharge), from service soldiers sexual perform attempt solicitation, to or al, in essentially sub- the same is AR been who Persons act. such an n involved appar- stance.11 in an acts in homosexual a soldier after of retention warrant Note: To provides: 11. AR in, attempted engaged finding she he or ... 15-2 Definitions engage in, another to engage or solicited regardless to person, a means Homosexual a. findings act, must in, board’s in, engage a homosexual sex, engages desires to who findings listed include all specifically acts. engage homosexual intends to five or making (5) these addi- engages through person a(l) above. who means a Bisexual b. reasonably in, engage con- findings, in, engage or intends should boards desires tional example, acts. presented. For and heterosexual homosexual the evidence sider contact, bodily long means a act over A acts homosexual homosexual engagement c. permitted, passively actively hardly undertaken or "a be considered period of could time sexual same sex of the soldiers between and cus- usual the soldier’s departure from satisfaction. policy is this intent tomary behavior.” 15-3 Criteria only of nonhomosexual permit retention preser- may include separation basis for extenuating who, circum- soldiers service, vice, conduct service prior or current findings required (as demonstrated stances per separated will be soldier A statements. in, or (5)) engaged 15-3a(l) through para following chapter or more if one in, a homo- engage or solicited attempted to findings is made: approved act. in, attempted to has a.The soldier is a he or she has stated The soldier b. engage ain in, another solicited or bisexual, is a fur- there unless or homosexual ap- further there are unless act homosex- finding not the soldier ther findings that— proved or bisexual. ual departure (1) ais conduct Such attempted to has married c. The soldier behavior; customary usual and soldier's same to be marry person known be- unlikely recur (2) Such conduct (as by the external biological evidenced sex shown, act example, it is cause involved) there unless person anatomy intoxication, immaturity, occurred because soldier is findings further service; military coercion, to avoid or a desire as, (such where the or bisexual marry attempt marriage purpose of accomplished (3) conduct was Such military or termination the avoidance coercion, force, the or intimidation use of service). service; military during period of a soldier origi- (emphasis 635-200, & 15-3 15-2 ¶¶ AR and nal). particular circumstances (4) the Under to reenlist Army’s refusal Although is the it presence in case, continued soldier’s homosexuality is of his Watkins of the with the interest Army is consistent issue, challenge directly Watkins’ at order, good and discipline, proper Army in discharge relevant is Army’s regulation on morale; and being (1) persons two reasons: appeal for engage in desire (5) does The soldier homosexuality the time discharged for validly acts. or intend regulations, these “profession We conclude that of homosexuality” they have face, made, they their discriminate homosexu- are found to have a homosexual 601-280, 112-21(c) of their sexual orientation. AR als on the basis orientation. & note. Similarly, discharge regulation under the regulations any a homosexual act Under discharged soldier must be if soldier homosexuality gives or statement of rise to “[t]he has stated that he or she is a homosexual orientation, presumption of homosexual a bisexual, unless there or is a further find- anyone pre- who fails to rebut ing that the soldier is not a homosexual or sumption conclusively Army barred from 635-200, 1115-3(b) (empha- bisexual.” AR words, regulations service. In other added). short, regulations sis do not target homosexual orientation itself. The penalize desire, all statements of sexual or homosexual acts and statements are mere- desire; even statements of homosexual relevant, rebuttable, ly indicators of they penalize only homosexuals who de- that orientation. clare their homosexual orientation. Army’s regulations, Under “homo- True, “person a who has committed ho- conduct, sexuality,” opera- not sexual is the mosexual presumptively acts” is also “in- disqualification. 601-280, tive trait for AR regulation cluded” under the reenlistment 112-21(c); see 635-200, also 15-l(a) AR II person as a excludable for “homosexuali- (articulating goal). example, the same For ty.” 601-280, 112-21(c); see also AR AR regulations ban homosexuals who have 635-200, 15-3(a). But it II is clear that this nothing acknowledge done more than their provision merely designed to round out homosexual orientation even the absence possible evidentiary grounds for infer- persons of evidence ever ring a regula- homosexual orientation. The any form sexual conduct. The reen- tions define “homosexual acts” to encom- regulation disqualifies listment any “admit- pass any “bodily persons contact between ted homosexual” —a status that can be sex, actively of the same undertaken or proved by “[a]ny official, private, public or passively permitted, with the intent of ob- profession homosexuality” even if taining giving satisfaction, or sexual any or “there is no evidence that have en- solicitation, proposal, attempt perform gaged in acts either before 601-280, 112-21(c) such an act.” AR & during military 601-280, service.” AR note; see also AR 635-200, 111115-2(c) & ¶ 2-21(c) note; see also AR 635-200, & 15-3(a) (stating slightly the same in differ- ¶ 15-3(b). regulations Since the define a order). Thus, ent barring person, regardless “homosexual” as “a Army any cover sex, who desires bodily contact between bodily persons form of contact between persons sex, actively of the same under- gives the same sex that sexual satisfac- passively permitted, taken or with the in- tion —from oral and anal intercourse give gratification,” tent to obtain or hands, holding kissing, caressing any person can be deemed homosexual under Indeed, number of. other sexual acts. engaging without ever in a prove this case the tried to at Wat- 601-280, 112-21(c) homosexual act. & note discharge proceedings kins’ that he had (emphasis added); see also A.R. committed a homosexual act described as 15-2(a) (same desire sufficient to make one soldier, squeezing the of male knee but homosexual). Thus, no matter what state- prove failed to it was Watkins who did the person made, ments a has the ultimate supra alleged knee-squeezing. evidentiary issue is whether he or she has a Moreover, n. 2.& even non-sexual homosexual orientation. Under the reen- trigger presumption conduct can of ho- regulation, disqual- listment mosexuality: regulations provide if, reenlisting only ified from based on discharge soldiers who reenlistment, was, mandatory discharge as Watkins cannot reenlist to ity because of homosexual- 2-21(k); (2) enjoining under 601-280 as soon We as he was reenlisted. thus con- If applica- to consider Watkins’ challenge constitutionality reenlistment sider Watkins' to the regard tion Army’s discharge regulation without to his will as well as its provide subject regulation. effective relief if he would be reenlistment engage engage in or intend to in marry desire to attempted to or “married have 635-200, 1115-3(a). sex ... AR of the same homosexual acts.” known to be person findings states, that the in- regulation expressly are further “The there unless or bisexual.” permit is not homosexual policy soldier retention tent of this added). 3(c) 635-200, (emphasis who, AR soldiers be- only of nonhomosexual 1115— can statements that acts and all the With extenuating circumstances en- cause of of homosex- evidence presumptive as serve in, in, attempted or solic- gaged hard to regulations, it is the uality under (em- Id. at note ited a homosexual act.” inferring homo- any grounds for of think original). Similarly, Army’s the phasis in included.12 that are not sexual orientation have com- reenlisting who ban however, remains, that homosexu- The fact apply acts does not mitted homosexual conduct, is orientation, not al homosexual have involved ho- “[pjersons who been Army’s regula- object the plainly apparently isolated mosexual acts an tions. immaturity, stemming solely from episode, person Moreover, regulations a under the intoxication, [sic], and in the curiousity or disqualified from automatically is not person that the of other evidence absence she com- just he or Army service because ¶ AR 2-21 a homosexual.” may Persons homosexual act. mitted gay straight and a sol- note. If a soldier Army despite their ho- qualify for still engage in homosexual of the same sex dier satis- prove if to the they conduct mosexual drunk, immature or are acts because that their orienta- Army faction of officials curious, straight may soldier remain in homosexu- than is heterosexual rather tion gay soldier is automati- Army while the illustrate, regulation discharge al. To short, cally terminated. in ho- engages a soldier provides that who engaging penalize do not soldiers discharge if he escape acts can mosexual acts; they penalize soldiers depar- “a show that conduct can only engaged in homosexual acts have who and custom- usual from the soldier’s ture soldiers that those decides when unlikely “is to recur ary behavior” actually gay.13 shown, example, that the it is because homo sum, the discrimination immaturity, intoxi- of because act occurred these orientation under sexual coercion, avoid mili- cation, or a desire to imagi could complete as one as is about “soldier does tary service” and by persons “the same or engaged of whether and focus of breadth In stark contrast 12. opposite § sex." U.S.C. Congress only has regulations, statute evidence finding or even is no There private sexual regulating consensual enacted activity sodomy, act of Watkins ever committed military personnel sod- covers of that Watkins ever is no thus there evidence conduct, and omy, sexual other forms of Indeed, twice violated section sodomy homosex- whether covers committing allegedly investigated Watkins for (1982) U.S.C. 925 § or heterosexuals. uals and had to sodomy, of section 925 in violation provides: investigations drop because “insufficient both (a) subject chapter who Any person to this supra See at 1429-30 & n. 2. evidence.” copulation with engages in unnatural carnal com- that Watkins While the lack evidence opposite or sex person of the or same another being con- sodomy prevents him from mitted sodomy. guilty Pen- animal is with an etration, statute, it is immaterial under victed under slight, to com- is sufficient however they presume ho- Army regulations plete the offense. from evidence orientation mosexual sodomy (b) guilty Any person found gives bodily contact of homosexual form may di- punished a court-martial shall be satisfaction. rect. "sodomy" Although not define statute orientation does on sexual distinction based 13. This copulation,” the statute treatment directly "unnatural carnal affected because, ap admitted proof “penetration,” which it not for his require Watkins were does orientation, might have copula sodomy anal Watkins oral and limits parently Harris, 14-year career his M.J. continue been able to arguing United States tion. which Moreover, acts to he 1979). (C.M.A. ex that the homosexual the statute product of his imma- were the regard in 1968 sodomy to sex admitted turity regulates without plicitly curiosity. illegal making sodomy orientation ual regulations ne.14 any (1986), The make act or L.Ed.2d 140 forecloses Watkins’ might conceivably statement that indicate protection a challenge regula to its Hardwick, homosexual orientation of evidence homo tions. rejected the Court a sexuality; that evidence is in weighed turn by claim a Georgia homosexual that a stat against any evidence a heterosexual criminalizing or ute sodomy deprived him of ientation. It is thus clear in answer liberty to our his process without due of law in equal protection threshold inquiry that the violation of the Fourteenth Amendment. regulations directly burden the class con specifically, More the Court held that sisting persons of homosexual constitutionally orientat protected right privacy ion.15 —recognized in cases such as Griswold v.

Connecticut, 479, 1678, 381 U.S. 85 S.Ct. IV (1965), and Eisenstadt v. 14 L.Ed.2d 510 Baird, 405 U.S. 92 S.Ct. 31 L.Ed. reaching question Before of the level (1972) not extend tefaihs 2d 349 —does of scrutiny applicable to discrimination sodomy.16 See id. consensual homosexual ques- based on sexual orientation and the at 2843-46. holding The Court’s was limit tion regulations whether sur- ed to this process question. due par applicable scrutiny, vive the level of argue ties did not explicitly and the Court first Army’s argument address the that we did not question decide the whether by existing are foreclosed Supreme Court Georgia sodomy might statute violate the precedent Ninth Circuit holding equal protection clause. See id. at 2846 & Army’s regulations deny Watkins n. 8.17 they of the laws because discriminate on the basis of homosexual The Army argues nonetheless it Army orientation. argues first that would “incongruous” to hold that Bowers v. the Supreme Court’s regulations decision in deprive gays equal protec- Hardwick, tion of the laws when Hardwick holds that agree premise Judge We cannot with the opposite in members of the sex do Reinhardt's disqualified subject dissent that the participants proceed- such Watkins from service because of ings. his homosexu- opposed al conduct as to his homosexual orien- First, tation. Dissent at 1460. analysis, 16. Under the Court's because the Con- encompass possible evidentiary grounds all for stitution’s privacy does inferring merely homosexual orientation and sodomy, judgment not extend to homosexual possible, include homosexual acts as one but sodomy provides state that is immoral necessary, ground drawing no means sufficiently sodomy rational basis for laws to Second, specific regulations inference. satisfy requirements al- pro- of substantive due low some soldiers to despite remain in the cess. See Hardwick at 2846. they prove homosexual conduct if can in fact have a non-homosexual orientation. Hardwick, (Black- 17. See also 106 S.Ct. at 2849 (Court dissenting) mun J. We also note "refused to consider” that homosexual en- orientation clause); emotions, desires, compasses range Casey, Doe v. 796 F.2d (D.C.Cir.1986)("Although wholly separate needs ... the Su from sexual conduct and preme Court’s recent involves an decision in element of Bowers v. individual self-definition Hardwick [held] in addition to homosexual conduct is not agree sexual conduct. We cannot constitutionally protected, (Dissent with the dissent’s Court did not view 1459-61) reach agency comprised different issue of persons that the class whether an government of the federal who consider themselves can discriminate homosexual is virtual- ly merely individuals identical because of to the class of who (footnotes conduct, emphasis orientation." sodomy in homosexual omitted and particu- original)), granted cert. lar. sub nom. Webster — Doe, U.S. -, 96 L.Ed.2d course, 671; attempt Of identify States, their sol- F.Supp. v. United Swift orientation, diers of (D.D.C.1986) ("this Circuit has declined to read discriminate in their treatment of barring [Hardwick as] claims of discrimination and heterosexual conduct. While homosexual preference”); based on sexual but Padula v. cf. subject participants acts discharge Webster, pro- (D.C.Cir.1987)("reasoning 822 F.2d 97 ceedings by triggering regulatory presump- in Hardwick forecloses ... class status "homosexuality," tion of homosexuals"). practicing identical acts when a criminal oral intercourse making anal and priva protected constitutionally there by partners of engaged in whether offense sodomy. homosexual engage right in cy to id. See sex. S.Ct. opposite 106 the same at 19. We dis Brief Supp. Army’s Second process deciding a due In n. I.18 at 2842 Hardwick First, does indeed while agree. applied Georgia as challenge to the statute provides process clause due that the hold n sodomy,19 the Hardwick ! to homosexual for protection acts privacy no substantive e th either simply address did Court nothing in ; sodomy, homosexual private of sodomy also heterosexual question whether may pe suggests Hardwick that the state right priva scope of to the the falls outside orientation. sexual for gays their nalize homo separate question whether cy or the California, v. Robinson Cf. may sodomy but not heterosexual sexual (1962) (holding 758 8 L.Ed.2d equal violating the without be criminalized by criminal process due state violated Hard-' read We cannot protection clause. addiction, even of narcotics izing the status proposition thab wick standing for the as the use could criminalize though state the sodomy only when may outlaw government narcot in which the narcotics —conduct persons.' class of by a disfavored committed to en prone by definition ics addicts Hardwick be example, cannot Surely, gage). government to a license read as ; although Hardwick Second, held only when committed sodomy outlaw pre- regulat-i clause process does on j government insists the due If blacks. of ho criminalizing acts between con-i private from sexual conduct ing states vent minimum, nothing must, do’ adults, id. n. sodomy, at 2842 it at senting mosexual persons evenhandedly prohibiting all actually holds that in Hardwick state so — sexual proscribed in regu engaging when distinctions invidious make sex-' placing the burden of than acts rather Unlike lating conduct. sexual solely on a minorit disfavored sodomy statute ual restraint Georgia regulations, face, y.20 issue Hardwick neutral right such conduct to Lemons, that “a to F.2d claim States

18. United Cf. history and tradition' 'deeply in our rooted is ‘implicit 1983) (rejecting homosexual's (8th Cir. 837-38 equal liberty.’” concept ordered sodomy challenge statute protection to point making this S.Ct. at 2845-46. prohibited the same also criminal law because between homosexual sex). drew distinction opposite conduct between sodomy, do 19 of nor heterosexual and sodomy. Sur- See still outlaw jurisdictions that hetero- two had dismissed court The district 19. Privacy in the Right to vey on the Constitutional standing, and plaintiffs for lack Activity, Miami U. of Homosexual Context Hardwick, n. at 2842 appeal. did not L.Rev. interpretation of Hardwick—that dissent's The single out to state it authorizes argues dissent that our Judge Reinhardt con- sanction permit- for criminal conduct "implicitly as opinion reads Hardwick wide of by homosexuals—is is committed duct conduct” regulation of heterosexual ting the on the explicitly focused Hardwick mark. the question "increas[ing] exponentially—the dam- thereby — right privacy extends to whether by Hardwick.” right privacy caused age to to the protection to the commission First, constitutional read Hardwick do not we at 1454. Dissent sodomy. 2844-46. undermining any of the reversing or even as essence, focus Hardwick’s the dissent shifts pri- defining right to establishing and cases process and due refusing away from substantive to as simply Hardwick vacy. read We right of homosexu- right privacy towards right to constitutionally protected extend the laws. Second, under the enjoy equal treatment sodomy. als to privacy acts of homosexual reading of expansively anti-homosexual judgment Such an passing read Hardwick do not both unsupported unfair and is Hardwick the constitu- on whether way other or the one Supreme Court. privacy homosexuals right extends protected tionally asser- however, agree the dissent’s note, cannot alsoWe sodomy. We do heterosexual entirely protection clause equal that the tion reasoning rests in Hardwick Court’s that the therefore, that, our "procedural in nature” time at one major part determination on its "[ojnly if analysis coherent sodomy that 24 states outlawed all 50 states protected sodomy is not to outlaw heterosexual Columbia continue and the District How- n. 4. at 1454 privacy." Dissent right to background,” Justice "Against sodomy. right to Supreme Court defines ever the reasoned, facetious” "at best it would White argues also that Hardwick’s laws based on its substantive value choices. Equal protection the limits of the simply requires concern “about Court’s carrying majority out its constitutional man- apply role its values evenhandedly. date,” Indeed, prevent plays 106 S.Ct. at should doctrine holding important perfecting, courts from role in rather than protects frustrating, process. doctrine from dis- the democratic sure, requirement crimination. To be the Court in constitutional of evenhanded- justified its refusal political legitimacy Hardwick to further ness advances the scope privacy majority by safeguarding extend the rule minorities largely by pointing problems alleg- majoritarian to the from oppression. require- recognize edly judges created when ment of consti- evenhandedness also facilitates a readily “rights representation tutional not of government identifiable minorities in “having operation text” and little representa- Constitution’s advances of cognizable language democracy.22 or no in the Finally, practical roots or tive dif- design 106 of defining requirements of the Constitution.” S.Ct. at ficulties im- 2844, posed by equal protection, 2846. The Court stressed its concern insig- while not nificant, rights might perceived be as in- judiciary that such do not involve the volving imposition degree “the of the Justices’ own same of line-drawing value-based Supreme choice of on the States and the values Court in Hardwick found Federal Government” and that this anti- defining so troublesome in the contours of perception might sum, process. democratic undermine the due substantive the driv- legitimacy Finally, ing of the Court. Id. force behind Hardwick is the Court’s expressed specific ongoing the more expansion concern concern with the of potential defining rights process, about difficulties under substantive due not right privacy. of the to antipathy contours See id. at an unbounded toward disfa- group. vored question While it is not our role to upon Hard- also relies Beller v. Mid pro- (9th Cir.1980), wick ’s concerns about substantive due 632 F.2d 788 cert. dendorf denied, specifically right 3030, cess and privacy, to 452 U.S. 101 S.Ct. reliance, however, these concerns have little relevance to L.Ed.2d 405 This equal protection Beller, right misplaced Hardwick, doctrine.21 The to is like equal protection case, of the laws has a process clear is a substantive due not an basis in the text of the rejecting Constitution. This case. a sub treatment, principle equal imposed process challenge Navy reg when stantive due to rule, against majoritarian providing discharge arises from the per ulations for the itself, judicial acts, Constitution not from fiat. sonnel who in homosexual Moreover, equal protection doctrine does our court held Beller that substantive prevent majority enacting process not required only due that courts bal- privacy Compare that definition includes a under the clause. J. —whether Ely, (1980), sodomy, Democracy in heterosexual homo- n. 52 Distrust 248 neither, sodomy, equal pro- sexual or both—the with id. at 93 S.Ct. at 731-32. See imposes independent generally tection clause gation an note [22]. obli- infra government on not to draw invidious generally Ely, supra J. 22. See note at 101-02 See, among e.g., distinctions its citizens. Lehr v. ("unlike approach geared judicial an to the im- Robertson, 248, 265, 463 U.S. values,’ representa- position of ‘fundamental (1983) (“The concept 77 L.Ed.2d 614 tion-reinforcing [approach] ... is not inconsist- equal justice requires under law the State to with, contrary entirely support- to the ent but is govern impartially"). We do not read Hardwick of, system representative the American ive democracy. any way eroding principle. as in recognizes unacceptability It Ely, example, appointed judges 21. Dean John Hart has severe- claim that and life-tenured ly holding criticized the Court's in Roe are better reflectors of conventional values than Wade, representatives, devoting 35 L.Ed.2d elected policing itself instead to (1973), expressing system while at the same time the mechanisms which the governmental representatives the view that classifications bur- seeks ensure that our elected dening heightened scrutiny actually represent."). homosexuals merit will constitute a inter claim—whether and individual governmental anee quasi-suspect class.23 inter in a fashion similar ests stake 805- Beller, F.2d at scrutiny. mediate under convicted Hatheway, a soldier carefully Kennedy’s now-Justice As committing sodomy, U.S.C. § clear, ap Beller’s opinion makes tailored prosecuting Army was claimed address us to require “not peal did sodomy while involving homosexual cases private homo consensual question whether involving heter- refusing prosecute cases right as fundamental is a conduct court sodomy. “understood Our osexual protection.... equal is used term (that the commissionof Hatheway’s claim implicat us as presented not was] [and impermissible basis act an classifica quasi-suspect suspect or ing a protection equal prosecution) process, due Substantive tion. ... Hatheway, 641 F.2d argument,” con the basis protection, equal resting branch we treated which case claim, we address stitutional concerned with doctrine Thus, Beller, at 807. terms.” Id. in those bur- governmental classification whether con precedent Hardwick, clearly like important substan- a fundamental dens gov challenged claim trolling Watkins’ in conduct. certain tive against discriminate regulations ernmental Thus, characterized Hathe- explicitly we equal protec of class violation suspect of a ho- “that the commission way’s claim Alameda v. Sethy See tion doctrine. impermissible basis is an act mosexual 1157, 1159- Dist., F.2d 545 County Water equal protec- of sort to be the prosecution” banc) (a prior decision Cir.1976)(en (9th 60 ‘right to be “implicate[d]the tion claim that on issues binding precedent into intrusions unwarranted free ... nor dis raised counsel neither were ” (quoting 1382 F.2d at 641 privacy.’ one’s court); of Saka opinion cussed in 557, 564, 89 394 U.S. Georgia, v. Stanley F.2d 764 Shoppers, Duty Free v. moto (1969)). 1247-48, 542 1243, 22 L.Ed.2d S.Ct. Cir.1985) (same). (9th 1285, 1288 at stake the interest then reasoned We deci that our argues Army further The to the substantive similar Hatheway was Secretary Hatheway v. sion 641 F.2d at in Beller. stake interest Cir.), (9th cert. de 1376 F.2d Army, 641 decided we in Beller Because 324, 864, 70 S.Ct. 102 nied, U.S. 454 right to clause process the due under (1981), Watkins’ forecloses 164 L.Ed.2d merited conduct engage in we cannot Again, protection claim. equal solicitude,” scru- not strict but “heightened two Beller, reserved court our agree. assess- adopted this Hatheway we tiny, in first, questions: protection equal distinct fundamental of our purposes for the ment penaliz challenged whether analysis. Accord- protection equal rights exer burdened ing conduct scrutiny applied intermediate ingly, we important sub or of a fundamental cise “the se- held that Army’s actions conduct; engage in certain right to stantive acts involving homosexual cases lection challenged second, whether permissi- prosecutions” 125 for'Article quasi- suspect or discriminated sub- “a bore prosecutions such ble below, in explained class. As suspect important relationship to stantial first of clearly answered Hatheway we Thus, re-we Id. interest.” government questions. protection equal these discrete analy- on an Hatheway’s claim based jected however, Hatheway argues, rights branch the fundamental sis question reserved second also decided doctrine, branch protection equal raised Watkins’ question in Beller —the 14-15, 2382, 72 14-15, & nn. 2394-95 doctrine, 102 heightened Under Roe, (1982); U.S. 432 Maher v. legal classifications L.Ed.2d 786 only applies to scrutiny not 2380-85, 484 470-78, L.Ed.2d quasi-suspect but classes suspect or 97 S.Ct. burden Tribe, Law that burden applies (1977); Constitutional to classifications also L. American important 16-31, substan- 1002-03, n. 1 16-7, or & of fundamental at 1089-90 exercise tive e.g., Plyler § § See, engage in certain conduct. rights to Doe, & nn. 216-17 v. upon tinguishable because, equal protection doctrine which Wat- from this case like rely. kins does not Better, Hatheway Hardwick and involved a classification based on homosexual con- Army argues that we should none- duct, not homosexual orientation. As we precluding Hatheway read theless Wat- emphasize throughout opinion, kins’ claim that homosexuals constitute a our this dis- suspect quasi-suspect support class. analysis tinction is critical to an of Wat- argument, upon of this relies particular equal protection kins’ claim. single opinion’s footnote—the sentence in a Because we read Hatheway as not decid suspect analysis. class only reference to ing suspect issue, class and because the “Though In footnote wrote: 6 we ‘[t]he rights class and fundamental designated courts homosexuals a branches doctrine in “suspect” “quasi-suspect” classification see, very separate inquiries, e.g., volve San require exacting scrutiny/ so as to more Indep. Antonio School District v. Rodri Co., 608 DeSantis v. Tel. & Tel. Pacific 1, 18-39, guez, U.S. (9th Cir.1979), heightened F.2d (1973); Perry, L.Ed.2d 16 required scrutiny independently where a Protection, penalizes Equal classification the exercise of a Modern 79 Colum.L. right. Shapiro fundamental (1979); Developments Rev. 1074-83 618, 634, Thompson, 394 U.S. Protection, Equal 82 Harv.L. Law— 1322, 1331, (1969).” 22 L.Ed.2d 600 (1969), general Rev. our Although recognize F.2d at 1382 n. 6. rules of stare decisis dictate that Hathe- purpose of that the intended this footnote way controlling precedent is not for Wat clear, entirely fairly is not we cannot read kins’ claim based on the passing adjudication reference as an argument that homosexuals constitute a important and unresolved constitutional suspect quasi-suspect or class. Sethy, See question whether homosexuals constitute a (en banc); Sakamoto, 545 F.2d at 1159-60 suspect quasi-suspect pur- or class for the 764 F.2d at 1288. Rather, pose equal protection analysis. Finally, reject we contention simply clarifying we read footnote 6 as Co., in suspect distinction that DeSantis v. Tel. between class and & Tel. Pacific rights equal pro- (9th Cir.1979), fundamental branches of 608 F.2d 327 our court held acknowledging tection doctrine while that that homosexuals do not constitute a sus- Hatheway at the time of the decision Rather, pect quasi-suspect or class. we yet courts had not decided whether homo- in held DeSantis homosexuals were suspect sexuals constitute a quasi-sus- or protected meaning not a class within the pect language class. That the in critical 1985(3), right 42 U.S.C. which secures a § directly footnote 6 is taken opin- our against private parties of action who con- DeSantis, in ion 608 F.2d at informs spire deprive “any person or class DeSantis, reading. our we acknowl- persons equal protection of the of the edged yet designat- that our court had not Although interpretation laws.” our of sec- suspect quasi-sus- ed homosexuals as a or 1985(3) part tion in turned on the observa- class, pect but we did not decide that homo- designated tion that courts have not “[t]he designated. sexuals should not be so See ‘suspect’ homosexuals a ‘quasi-suspect’ Similarly, footnote 6 of at infra classification,” 608 F.2d (emphasis at 333 existing remarked on the Hatheway, we added), we did not consider whether homo- respect to homo- state of the law with designated sexuals suspect should be a deciding open question sexuals without necessary class. Nor was it to reach that whether homosexuals a constitute because, issue interpre- under DeSantis's words, quasi-suspect class. In other statute, 1985(3) tation of pro- section interpreting Hatheway equal read as only groups tects those that have been presented resting solely claim as government determined rights equal spe- on the to need fundamental branch of protection analysis. Hatheway protecting is also dis- cial federal assistance their Thus, hiring decisions. The D.C. sexuals” its our 333.24 F.2d at rights. 608 civil analyze whether the class of Circuit did 1985(3) protect did section decision engaging in homosexual conduct point simply on turned suspect- traditional indicia satisfies the yet designated homo had not courts ness, rather con- at but Although DeSan- see suspect class. sexuals infra (as summarily and the re cluded reasons for its not articulate tis does here) that urge us to do dissent “[i]t determina prior governmental quiring a face, anomalous, to declare 1985(3) quite section tion, likely it seems —since defined conduct states status against private individuals suits authorizes deserving of constitutionally criminalize our action —that no state requires scrutiny under the strict was of the statute interpretation court’s rea- clause.” Id. 103. The D.C. Circuit po providing by concerns about animated [Supreme] Court soned that [in sufficient notice “[i]f defendants tential unwilling object state Hardwick Marks United scope. ] the statute’s Cf. that de- 990, 993, criminalize the behavior 188, 192, laws that States, U.S. class, open hardly to lower it is enlargement fines the (1977) (judicial 51 L.Ed.2d sponsored dis- to conclude that state court fair statute without scope of criminal the class invidious. crimination process). due notice violates all, palpa- hardly be more After there can nor While neither against a class mak- than ble discrimination question has decided Ninth Circuit the class crimi- that defines ing the conduct appeal in Watkins’ presented —whether Id. nal.” orientation consti- persons of Judge Re- reasoning, echoed Padula's suspect class under tute dissent, premise false rests on the con- inhardt’s circuits have other doctrine —several approves discrimination that Hardwick question related different but sidered the supra against homosexuals. indi- class of burdening the laws whether above, Hardwick repeat what we said conduct To engaging viduals protected constitutionally held scrutiny under heightened trigger to homo- circuit, does not extend privacy Only one protection clause. principled sodomy. But we see more than however, given the issue has holding transmogrify the Court’s way v. Web- Padula cursory treatment.25 specific sex- may criminalize state (D.C.Cir.1987), ster, the District F.2d 822 by homo- commonly pro- ual conduct equal rejected an Circuit of Columbia pass “homo- state license into a policy of sexuals FBI’s challenge to the tection imposing special laws” —laws against “practicing homo- discriminating 903, Court, S.Ct. cases, 105 equally divided subsequent DeSantis has Along with 1858, these Both 776 of ways 84 L.Ed.2d of two there that are established on ho based 1985(3): (1) that discrimination prov held circuits showing making § under heightened merit offering not conduct does mosexual Congress statutes ing has enacted that clause, equal protection but class; (2) scrutiny proving under the or special to the protection analysis attempted any of serious special circuit neither offered that courts Wade, at 292 quasi-sus 769 F.2d suspect See Baker v. designating or the issue. by it a the class cited Id.; merely plaintiff "has Sundberg, (noting not 759 v. pect see also class. Schultz hold, that 714, Cir.1985). holding, (9th any we refuse and cases 718 F.2d suspect quasi-sus or constitute homosexuals Force, classification”); Gay Task pect National con have also Tenth circuits 25. The Fifth summarily (stating classifi Wade, at 1273 F.2d 729 F.2d 769 question. v. Baker sidered this partners could of sexual banc), on choice Cir.1985) (en based (5th cation On Petition 292 Supreme Court has (stress suspect Banc, because not be Rehearing 1987 774 F.2d En classification); see suspect gender to be a held "directed at certain ing conduct, issue was statute at Army, F.2d denied, Secretary 735 abo v. people”), Rich cert. not at a class of of expla Cir.1984) (citing (10th without — U.S.-, 1229 742 92 L.Ed.2d Force, Hatheway, and Gay Task National nation (1986); Gay Force Board National Task that a "classifica proposition Cir.1984) (stat for the (10th Educ., DeSanta 1273 F.2d 729 partners is of sexual one’s choice tion based "public activ proscribes ute at issue suspect”). by teachers), opinion by ity” without aff’d gays gay. deepest prejudice some of the restrictions on because hatred [1439]; at supra society.” High at see also Gays American Tech v. De- infra regulations do not (Army burden Security Industrial Clearance [1445-46] fense fice, Of- subject crimi- by a class defined behavior (N.D.Cal.1987)(inval- F.Supp. 1361 sanction). Thus, unper- nal we find Padula idating Department practice Defense suasive. subjecting gay security appli- clearance exacting scrutiny cants to more than heter- sum, ap- we conclude that no federal applicants). osexual pellate the critical issue Homosexuals have court has decided frequent raised Watkins’ claim: whether been victims violence and orientation constitute a sus- schools, of homosexual jobs, have been excluded from pect under doctrine. class churches, housing, and even families. See sure, Hardwick, To be Better and Hathe- Note, generally Argument Ap- An making way foreclose Watkins either plication Equal Heightened Protection process claim that a due Scrutiny to Based on Ho- Classifications Army’s regulations impinge on an as- mosexuality, 57 S.Cal.L.Rev. fundamental in ho- serted (1984)(documenting history of discrimi- sodomy. mosexual But Watkins makes no nation). case, the discrimination Rather, only that the such claim. he claims society faced our against him discriminate plainly pernicious no less or intense than membership of his in a disfavored because groups the discrimination faced other group This claim is not —homosexuals. classes, already suspect treated as such as by precedent. barred people particular aliens national See, Cleburne, origin. e.g., 473 U.S. at V (identifying suspect 105 S.Ct. at 3255 address the merits of Watkins’ We now groups). subject that we must claim Supreme second factor scrutiny to strict ho- suspect analysis Court considers class suspect constitute a class under mosexuals capsulize repre- difficult to fact equal protection jurisprudence. The Su- grouped sent a cluster of factors around a preme Court has identified several factors central idea—whether the discrimination guide suspect inquiry. our class gross unfairness that is suffi- embodies gen The first factor the ciently inconsistent with the ideals of group erally considers is whether the protection to term it invidious. Consider- history purposeful suffered a issue has ing Af- this additional factor makes sense. See, Cleburne, e.g., discrimination. all, ter discrimination exists some 3255; U.S. at Massachu groups because the animus is warranted— Murgia, setts Bd. Retirement v. seriously argue burglars one could 307, 313, 2562, 2566-67, U.S. Tribe, form a class. See The Puz- (1976); Rodriguez, L.Ed.2d 520 411 U.S. at zling Persistence Process-Based Con- of 28, 1294; Frontiero, 411 93 S.Ct. at U.S. Theories, 1063, stitutional 89 Yale L.J. 684-85, 1764, 1769, 677 at 93 S.Ct. 36 L.Ed. (1980); Note, supra, 1075 at 814-815 & nn. (1973) (plurality). Army 2d 583 As the giving concept 115-116. content to this concedes,26 indisputable it is that “homo unfairness, gross of the Court has con- historically object sexuals have been the of (1) disadvantaged sidered whether the class pernicious hostility.” and sustained Row by “frequently is defined a trait that bears Dist., land v. Mad River Local School 470 ability perform or no relation to contrib- 1009, 1014, 1373, 1377, 105 84 U.S. S.Ct. Frontiero, 686, 411 society,” ute to U.S. at (1985)(Brennan, J., dissenting L.Ed.2d (2) (plurality); at 1770 whether the cert.). S.Ct. recently, Judge denial of from More unique class has been saddled disabili- Henderson echoed the same harsh truth: prejudice gays object of ties because of or inaccurate “Lesbians and have been the Army's Supplemental 26. See Second Brief at 10. prejudice in gays de does constitute (3) the trait whether

stereotypes; and word, but rather sense of pejorative immutable. See Cle is fining the class 440-44, public disapproval at appropriate 105 S.Ct. burne, represents at 473 U.S. 14, 219 n. 3254-56; 457 U.S. at 216 in immoral behav- Plyler, persons who 14, 2396 220, 223, 102 at 2394 n. S.Ct. Army equates homosexuals with n. The ior. 2398; U.S. at 19, 2396, Murgia, 427 regulations n. its justifies sodomists Frontiero, 2567; 411 U.S. at at 96 S.Ct. rational a simply reflecting a bias (plurality). We at 1769-70 93 S.Ct. engage in criminal who class questions turn. these consider essence, sodomy. acts homosexuals, burglars, like argues that no rele- plainly has orientation Sexual they class form a cannot or “ability perform person’s vance to criminals. Indeed, society.” contribute homosexuality impairs no claim makes essentially Army’s argument, The military perform ability to person’s dissent, false by the rests on two adopted exemplary Watkins’ Sergeant duties. First, by the the class burdened premises. testa- as a military service stands record by the sexual orien- regulations is defined supra at opposite. quite the See ment to members, sexual its their tation of Moreover, Army it- as the 1430, 1431-32. To our supra at 1434-38. conduct. concluded, a scintilla of there is not self itself knowledge, orientation homosexu- avowed that Watkins’ evidence country. in this never been criminalized has upon degrading effect ality “had either Moreover, any attempt to criminalize discipline, or or morale performance, unit sexual orientation of an individual’s status ER at 26c. performance.” job upon his own prob- constitutional present grave of sexual orientation This irrelevance Robinson generally lems. See Califor- person’s contribution quality of a 8 L.Ed.2d nia, 82 S.Ct. 370 U.S. suggests that classifications society also preju- orientation reflect on sexual based Second, conduct the homosexual little of sec- stereotypes and inaccurate dice —the The is criminal. regulations covered gross un- a classification’s indicia of ond many forms of homosex- regulations reach Cleburne, at 440- fairness. See sodomy such as than other ual conduct agree with We at caressing, and hand- handholding, kissing, “discrimination Brennan Justice Yet, sodomy is genital contact. reflect ‘likely ... against homosexuals that Con- conduct consensual adult ra- than ... prejudice rather deep-seated criminalized, 10 U.S.C. gress § has Rowland, tionality.’” U.S. law, federal Indeed, Army points to J., (Brennan, dissenting at 1377 any form state, criminalizes which cert.) Plyler, 457 (quoting denial from behavior consensual private 14). 2394 n. at 216 n. U.S. argument sodomy. other than hard fact dispute Army does not discrimi- legitimately its prejudice. face enormous might be rele- against criminals solely nate it, Army justifies for the Nor could limited to were at issue vant if the class asserting that part class banned sodomists. But respect despise and lack straight soldiers sodomists, composed of Army service is not prejudice popular for homosexuals sodomists; class even of homosexual pervasive that is so against homosexuals or- persons of homosexual composed discourage Army will presence their or not whether ientation public and tarnish enlistment in this case the record sodomy. As Brief at 17- Army’s Opening image. See clear, proof has no makes 18; Army’s 9, 30, Second 18, 30-31 n. 19 n. of engaged in act has ever 635-200, Watkins 17; n. AR 30-31 & Supp. Brief at See or heterosexual. sodomy Instead, suggests that 15-l(a). ¶ —homosexual Nonetheless, the & n. 2. 1430-31 supra at towards directed public opprobrium government penalize to discharge and the be abhorrent for regulations mandated his them, change refusing re- person for to application. of his reenlistment denial easy change might gardless of how be immutability as an Finally, turn to we discrimination, for ex- physically. Racial gross unfairness. The Su of indicator ample, suddenly consti- become only has never held that preme Court developed if medical science tutional can immutable traits be classes with chang- cheap, painless method of easy, Cleburne, 473 suspect. Cf., e.g., deemed Tribe, ing pigment. supra, one’s skin See 3256, n. 10 n. 105 S.Ct. at U.S. at 442 Note, generally n. 52. at 1073-74 See theory); immutability id. (casting doubt on Status Sexual Orienta- Constitutional of (stating at 3255 at Suspect Homosexuality tion: as a Classi- defining suspect classes characteristics (argu- fication, 98 Harv.L.Rev. mentioning immutability); Murgia, without ability change is not ing that the to a trait (same); 313, 96 at 2566-67 427 U.S. at S.Ct. important as the trait is a “de- as whether 28, 93 at 1294 Rodriguez, 411 U.S. at personality”). feature of terminative (same). consider immuta nonetheless We formulation, Under either we have Supreme often bility Court has concluding trouble that sexual orientation see, immutability, e.g., Plyler, focused equal purposes for the is immutable 2396; 220, 102S.Ct. at Frontie 457 U.S. at Although the causes doctrine. ro, (plurali 93 S.Ct. at 1770 U.S. understood, fully are not recog ty), and has sometimes described research indicates that we have scientific having as immutable nized classes over our sexual orientation little control traits, see, e.g., Hughes, Parham v. that, acquired, once our sexual orienta- 347, 351, 60 L.Ed. U.S. impervious change. largely tion is See (1979)(plurality opinion)(describing 2d 269 Note, supra, 57 S.Cal.L.Rev. at race, origin, alienage, illegitimacy, national Tribe, sources); (collecting L. su- see also immutable). gender as proof pra at 945 n. 17. Scientific note Although Court consid aside, appropriate it seems to ask whether relevant, immutability it is ers clear capable changing heterosexuals feel “immutability” the has meant never sexual orientation. Would heterosex- their immutability in the sense that mem strict passed living city in a an ordi- uals physically of the class must be unable bers banning engaged in or nance those who change defining their or mask the trait persons in sex with desired People operations to class. can have easy opposite sex find it change ordinarily their sex. Aliens can activity from heterosexual but also abstain The status of become naturalized citizens. object to shift the of their sexual desires illegitimate changed. children Peo can be the same sex? It origin ple frequently hide their national can can some heterosexuals and homosexuals customs, names, by changing their their through change their sexual ex- orientation Lighter skinned blacks their associations. therapy, neurosurgery tensive or shock white, “pass” for as can can sometimes Tribe, supra treatment. L. note See Anglos, people and some can Latinos for Note, supra, 57 S.Cal.L. 945 n. 17. But see appearance with change even their racial nn. 147-149. But the Rev. at 820-21 & Griffin, pigment injections. J. Black and traumatic possibility of such a difficult minimum, then, (1977). At a Like Me change not make sexual orientation does willing a trait Supreme Court is to treat protection purposes. “mutable” changing effectively immutable if it would under the alter- express To the same idea great difficulty, requiring formulation, such as involve conclude that allow- native major physical change penalize or a traumatic the failure ing government to aspect change identity. Reading change the case law of individu- such a central manner, abhorrent to capacious group identity “immutabili would be a more al and animating the constitutional ty” may are so values describe those traits that equal protection of the laws. person’s identity ideal of central to that it would

1447 social, fact, economic, Supreme Court con tation. factor the The final analysis is whether political pressures class to conceal one’s homo- siders discrimina group official sexuality commonly many burdened gays deter from necessary to political power tion lacks advocating pro-homosexual legisla- openly political from the branches redress obtain tion, intensifying inability thus their to Cleburne, See, e.g., 473 government. political process. make effective use 3255; 441, Plyler, 457 105 S.Ct. at at U.S. 21, Ely, supra note at 163-64. “Be- J.Cf. 14; 14, 102 at 2394 n. 216 n. U.S. at oppro- and severe cause of immediate 28, at 1294. 411 at 93 S.Ct. Rodriguez, U.S. against brium often manifested homosexu- re understandably been more have Courts publicly, als once so identified members protection un heightened extend luctant to powerless group particularly this are to groups ful doctrine to der rights openly political in the pursue their securing rights through their ly capable of Rowland, 1014, at arena.” 470 U.S. 105 evaluating wheth political process. (Brennan, J., dissenting 1377 from S.Ct. at underrepresented, politically er a class is cert.).28 denial focused on whether Supreme Court has gays prejudice this Even when overcome and insular minori class is a “discrete enough participate openly politics, to 313, 96 See, Murgia, 427 U.S. at ty.” e.g., general animus towards 2567; Examining Board v. Flores S.Ct. at may participation wholly inef- render 602, 2264, 572, Otero, 96 S.Ct. 426 U.S. de public Elected officials sensitive to fective. (1976); 2281, generally L.Ed.2d 65 see support legislation prejudice refuse to Products, 304 v. Carolene United States appears condone homosexuali- 778, that even 144, 4, 783-84 n. 152-53 U.S. Note, supra, 98 at 4, ty. See Harv.L.Rev. n. 82 L.Ed. Indeed, argues n. 96. itself held, example, that old The Court has justified by the are insular a discrete and age does not define public acceptability need to “maintain stage that each “it marks a group because ¶ 635-200, 15-2(a), service,” military AR our normal reach if we live out of us will conduct “toleration of homosexual because 313-14, 96 Murgia, 427 U.S. at span.” approval” might as tacit be understood ... contrast, By most of us are S.Ct. at units existence of homosexual and “the identify as homosex- likely to ourselves of ridicule and noto- might well a source Thus, many of any time in our lives. ual at 17, Opening Brief at 19 n. riety.” Army’s officials, us, including many elected political These 30-31 n. 18. barriers understanding difficulty likely have underrepre- are underscored power peo- homosexuals. Most empathizing homosexuals of avowed sentation gays, be- exposure little both ple have decisionmaking government and bodies of gays27 and they rarely encounter cause leg- prevent inability of homosexuals may the encounter gays do group their interests.29 hostile to sexual orien- islation compelled to conceal their feel (1938) (Williams, minority L.Ed. 1234 783-84 n. and are homosexuals are a 27. Because J.)). schools, jobs, frequently churches, from excluded circles, social see and heterosexual generally have rela- supra heterosexuals cannot be claims that homosexuals 29.The states, tively opportunities powerless to meet homosexuals Wis- politically few because two California, against pro- any prejudices passed homosexu- statutes and overcome have consin and ality. homosexuals. hibiting discrimination not overcome the statutes do These two state history Wallace, of laws discrimina- long and extensive Adolph abo Coors Co. v. 28. See See, fifty (“Homo all states. (N.D.Cal.1983) ting against F.Supp. 209 n. 24 Note, at 803-07. supra, S.Cal.L.Rev. rep e.g., Moreover, attempting form associations to sexuals beliefs, level—the relevant national at the political free and social resent their seeking protection from mili- political reprisals level sexual orientation” fatal for their been tary minority discrimination —homosexuals merit and insular constitute discrete legislation passed getting wholly unsuccessful ing special under U.S. v. Carolene Co., protects from discrimination. them n. Products 1448 1003; Bakke, 357, Frontiero, 17, 93 438 U.S. at 98 411 at 686 & n. S.Ct.

See U.S. (Opinion justices). (plurality) (underrep- S.Ct. at 2782 of four n. 17 at 1770 & S.Ct. government women in resentation of recognize that even under strict scru We discrimination); by history of part in caused tiny, military of our review 445, Cleburne, 105 S.Ct. at 473 U.S. at comparable than must be more deferential legis- (reasoning that the existence 3257 civilians. See governing of laws review men- responsive to the needs of the lation 503, Weinberger, v. Goldman 475 U.S. 106 claim that tally disabled belied the 1310, 1313, S.Ct. 89 L.Ed.2d 478 politically powerless). were “pur does not While the port apply a different sum, analysis our of the relevant context, military test because of the [it determining given whether a factors congression stress the deference due does] suspect class considered a group should be among exercising al choices alternatives equal protection doc purposes of for the authority congressional to raise and ineluctably leads us to the conclusion trine support armies and make rules for their suspect homosexuals constitute such a Goldberg, 453 Rostker v. governance.” only analysis that our find not class. We 57, 71, 101 2646, 2655, U.S. S.Ct. 69 L.Ed.2d supports factors our of each of the relevant Ballard, (1981) (citing Schlesinger v. 478 conclusion, principles un but also that 498, 572, 419 95 42 L.Ed.2d 610 U.S. S.Ct. derlying equal protection doctrine —the (1975)). question special We whether this principles gave rise to these factors appropriate deference is in Watkins’ case place compel us to conclude that the first — given Congress reg not to has chosen suspect class. homosexuals constitute homosexuality any ulate form of sexual 21, Ely, supra note also J. at 162-64 See military personnel conduct (classifications based exception Congress cho save for one has — Tribe, supra heightened scrutiny); L. merit sodomy by military per sen to criminalize 23, (1978) (same). note at 944-45 n. 17 sonnel whether committed “with another opposite sex.” 10 the same or person VI added). Hence, (emphasis if U.S.C. § anything, section 925 reflects an absence of Having con concluded that homosexuals congressional to discriminate on the intent class, subject the stitute a we must of sexual orientation. basis discriminating Army’s facially case, granting special defer- even scrutiny. against homosexuals to strict policy military, of the regula ence to the choices Consequently, may uphold “ ‘necessary reject many must assert- promote if a we tions ” compelling they illegitimately governmental justifications interest.’ ed Blumstein, 342, 330, example, the Dunn v. private cater to biases. For 405 U.S. (1972) 995, 1003, (quot Army argues that it has a valid interest 31 L.Ed.2d 274 ing Shapiro, 394 U.S. at maintaining discipline morale and avoid- 89 S.Ct. at “ University Re 1331); ‘tensions between see also ing hostilities of Calif. Bakke, gents 265, 357, other members homosexuals and known [of (1978) despise/detest ho- (Opinion who 57 L.Ed.2d 750 the armed services] ” Blackmun, Army’s Opening Brief at Brennan, White, mosexuality.’ Marshall & JJ.). incorporating into their (quoting and requirement necessity The means Better, 811); see also argument 632 F.2d at that no less alternative is avail restrictive 18; 17-18, 30-31 n. id. 19 n. promote compelling governmen able to Dunn, Supp. Brief at 30-31 & n. Army’s Second See tal interest. 405 U.S. at sodomy peal thus reflect the argues repeal statutes of sod- also omy many proves be- statutes states that homo- attitudes about heterosexual liberalization of However, politically powerless. sexuals are sodomy political power than it reflects havior more freedom of statutes restrict the sexual homosexuals. heterosexuals The re- as well as homosexuals. and morale. efficiency, discipline, ¶ 15-l(a).30 tain 17; AR “ Ware, Grace Under concerning Hastie: a G. William ‘doubts expresses also (1984).32 Today, it is un- Pressure ability to command officer’s defer to judiciary thinkable that personnel he respect and trust ” judgment prior “professional” Army’s the many lower- because she commands’ soldiers had to be that black and white despise and soldiers heterosexual ranked interracial segregated to avoid tensions. Army’s Second See homosexuality. detest Indeed, Supreme decisively has the incorpo (quoting and Brief at 30-31 Supp. private prejudice id. 811); rejected notion that Better, see also the at rating 632 F.2d justify against ever official at 17- minorities can 17; Army’s Opening Brief at n. 31 discrimination, private 1115-l(a). when those 30; 635-200, even 9, AR 19 n. legitimate prob- prejudices create real argues presence the Army that Finally, the Sidoti, 466 U.S. Palmore lems. See v. “might well be a ranks gays in its of (1984). 421 104 80 L.Ed.2d notoriety, harmful of ridicule and source to its efforts” and Army’s recruitment the Palmore, custody granted of a a state Army’s Opening Brief at image. public her white moth- child to her father because 9, 30; 15, 17, 19 AR id. at n. see also 18; n. man. The state er remarried a had black 1115-l(a).31 635-200, the best interests of rested its decision on that, improve- child, reasoning despite the chord. strike a familiar concerns These relations, reality the social military’s fear ments race history, much of our For likely suffer social the child would sepa- was that kept soldiers tension black of racial parents of differ- stigmatization if she had v. Secre- benShalom whites. from rated Court, opin- in an A ent races. unanimous Army, F.Supp. tary of Burger, conceded the by Chief Justice recently War ion (E.D.Wis.1980). As as World interest importance of the and the state’s Army of staff chief II both child, nonetheless re- seg- of the but welfare Navy justified racial Secretary of the following reasoning: with the necessary to main- versed as regation in the ranks per suggests nothing that a se conceivably in the record even rationale different 30.A somewhat Army banning from the all cryptic rule statements also underlie certain could method of advanc- restrictive would be the least regarding Army concerns about makes ing this interest. privacy,” affording minimal conditions "close “ arising possible out of 'potential for difficulties ’’ not, confinement,’ intimacy as the dissent of bar- Rostker do and "the Goldman and 31. close 15-l(a); Army’s suggests, require be so deferential us to life.” AR ¶ rack’s Opening scrutiny Belter, we can- military strict (quoting F.2d at that even under Brief at 15 " n.9, professional judg- the 'considered 812); Army’s Supp. not overturn Brief at 19 Second of Army what kind of the as Conceivably, Army ment’ be concerned could enlisting to insure a should be barred from presence will part gays in the ranks fighting Id. at 18. This can- disciplined force.” distinguished from sexual tensions—as create military to ex- decided If the not be the law. arising prejudice of the from tensions —because pres- because their its ranks clude blacks person- necessity housing gays practical morale, judiciary allegedly however, ence undermined Army, never of the same sex. nel helpless down action. to strike gives indi- Thus it this concern. articulates judicial require defer- and Rostker Goldman compelling regards this as it concern that cation duty ence, Article III of our abdication not the weeding all homosexuals that it believes government, even hold the other branches exemplary military soldiers as out —even military, to the Constitution. accountable necessary Sergeant to advance Watkins—is as compelling reducing military sexual interest Indeed, in 1945 Presi- argument Order points an Executive in its It took tensions. Army Truman, against the advice al- issued implies about the dent that it is concerned integrate general, to every admiral insofar most confinement of soldiers close Miller, Speaking: Plain might forces. M. hostilities our armed exacerbate confinement such Harry Biography S. Truman 79 prejudice assertedly created An Oral and tensions during interesting to note It is also homosexuals. heterosexuals some deliberately minimized II the Opening Even World War 31 n.18. Brief of black existence sol- any publicity about argument ex- had raised the if publicity would that such it feared cluding reduces diers barracks homosexuals from Ware, image. Army’s public See G. reducing tarnish the had shown that tension and sexual interest, supra, at 100. compelling tension serves sexual reality suggest principle A ignore Loving similar animates “It would prejudices do not exist ethnic Virginia, racial and preju- of those manifestations (1967), or that all L.Ed.2d 1010 in which the eliminated.... have been dices Virginia Court struck down a statute out however, reality is whether the question, lawing marriages between whites injury possible and the private biases Although Virginia legislature blacks. permissible consid- they might inflict are adopted may have this law in the sincere infant for removal of an child erations miscegenation mixing belief that —the custody of its natural mother. from the evil, racial blood lines—was this moral difficulty concluding have little We judgment justify could not the statute’s they are not. The Constitution cannot on the of race. Like discrimination basis prejudices such but neither can it control Army’s regulations proscribing may Private biases be tolerate them. by only acts when committed law, the reach of the but the law outside couples, Virginia proscribed statute cannot, directly indirectly, give them marriage only by when undertaken mixed- effect.” cases, couples. govern race both Thus, 104 S.Ct. at 1882. Id. at Pal- conduct, prohibit ment did not certain it Army justifying forecloses the more prohibited selectively only certain conduct — ground on homosexuals on the that its ban engaged by peo when certain classes of private prejudice against homosexuals ple. Although may courts sometimes have strength would somehow undermine the accept society’s to moral condemnation as a per- our armed forces if homosexuals were justification morally even when con Cleburne, mitted to serve. See also activity demned causes no harm to inter (even U.S. at 105 S.Ct. at 3259 under morality, outside ests notions of see Hard against rationality review of discrimination wick, (accepting 106 S.Ct. at 2846 moral group quasi-sus- that is neither nor justification condemnation as under ration a., catering private prejudice pect, to is not review), ality majoritarian our deference to interest).33 cognizable state morality tempered by notions of must be Army’s regulations, defense of its The equal protection principles require which however, goes beyond professed fear of applied evenhandedly. that those notions be prejudice Apparently, in the ranks. acceptable limit the Laws focus of Army regulations rooting that its believes one’s sexual desires to members of the persons with out certain sexual tendencies sex, opposite like laws that limit one’s merely response prejudice, are not but (or spouse partner) choice of sexual grounded legitimate are also moral race, members the same cannot with words, Army norms. In other believes scrutiny stand constitutional absent a com against simply its ban homosexuals pelling governmental justification. This re society’s codifies moral consensus that ho- quirement nullity be reduced to a if would Yet, mosexuality accepting is evil. even government’s objec assertion of moral proposition arguendo this that anti-homo- couples only tions interracial (as grounded sexual animus is morality couples itself could serve as a opposed prejudice masking morality), as tautological challenged basis for the classi permit doctrine does not fication. majoritarian morality notions of to serve as compelling justification Army’s remaining justifications laws that dis- against suspect against criminate classes. discriminating homosexuals dissent, According to the our decisions 1459.To that these cases the extent countenance Hatheway preclude rejecting Better and prejudice potential us from rationales based on such as Army’s purported justifications illegit- tension between homosexuals and soldiers who Hatheway" imate. “Better and tends, potential the dissent con- detest impact or the adverse approve discriminatory "both military treatment of homosexual soldiers on re- homosexuals, military, cruiting, Hatheway which is Better and are undermined judgments regarding subsequent based on moral ality homosexu- both Palmore and Su- Cleburne— preme and homosexual conduct.” Dissent at Court decisions. homosexuals opposite, the ban rela they bear illegitimate, but little not be they have declared their homo- only after exam at issue. For tion to sexuality or have in known homo- disci argues military ple, Army’s about concern acts. re if emotional might undermined pline be among gays security could be ad- risks developed lationships between a more sensible and less restric- dressed in Army's Open military rank. different adopting regulation tive ban- manner 17-18,19 9, 30; n. AR ing Brief at ning gays lied about or only those who had might Although ¶ concern 15-l(a). their sexual orientation.34 failed to admit legitimate military inter compelling and encourage, way, In that would poorly tai est, Army’s regulations discourage, of ho- rather declarations than interest. one No to advance lored reducing the mosexuality, thereby number suggest heterosexuals are might who indeed of closet homosexuals attach develop emotional likely less security pose a risk.35 homosex military ranks than within ments do not Army’s regulations uals. Yet CONCLUSION attach emotional problem of address the regula personnel, Army’s female We hold that ments between male guarantee of place similar stress tions violate constitutional presumably which in laws Surely, the military discipline. against persons of homosexual relationships discriminate preventing emotional terest class, orientation, and military discipline would that could erode pro necessary to regulations are not the directly by a ban more advanced much be legitimate compelling governmental mote a members sexual contact between on all the district interest. We thus reverse unit, persons of whether between the same motion rulings denying Watkins’ court’s Cleburne, sex. opposite or the same Cf. granting and sum summary judgment 449-50, at 3259-60 Army, and in favor of mary judgment the justifications un asserted (rejecting certain a declar instructions to enter remand with justifica the rationality where der review Regulations Army atory judgment groups the to other would extend but tion 601-280, 635-200, Chapter A.R. not). the did Here challenged classification ¶ 2-21(c), constitutionally void on their all regulations disqualify homosexu Army requiring face, injunction to enter an any developed als whether reenlist to consider Watkins’ sol liaisons with other emotional or sexual regard to his sex application without ment diers. shall The court orientation. district ual regula- bearing relation to the little Also claims of also unresolved consider Army’s professed concern with is the tions Army acted such as whether Watkins’ security. AR breaches revoking security clear his unlawfully 1115-l(a). Army has a com- Certainly the ance. excluding persons who pelling interest AND REMANDED. REVERSED is evi- may susceptible to blackmail. It however, dent, homosexuality poses REINHARDT, Judge, Circuit only if a homosex- special risk of blackmail dissenting. his or her sexual about ual is secretive reluctance, concluded I have great do Army regulations With orientation. majority I to concur in Quite am unable problem. nothing lessen this homosexuality treating as a non- reported forthrightly homo- reason his Watkins has military disqualification service sexuality and his induction in since his waivable always potential treating a matter of common other more serious while is no knowledge. supra at 1429-31. There disqualifica- as waivable sources of blackmail us that Watkins suggestion 635-200, 14-12(c) (d) (mak- record before in the & AR ¶ tions. See public disclosure of his homosexual- feared ever ity- of other ing and the drug abuse commission disqualifica- military offenses waivable serious tions). Moreover, banning if homosexuals even risks, appears security to be there lessen could Clause, Equal I Protection and neither majority, believe that opinion. Like party presented that issue in its briefs or at unfairly treated have been argument, holding oral Court limited its historically and in the United States both process properly to due refrained from apply my I free to own view today. Were reaching any regarding direct conclusion meaning of the Constitution and of the equal protection challenge to the stat- upon validity of the pass light However, id. at 2846 n. 8. ute.1 See I too conclude Army’s regulations, fact that Hardwick does not address the may not refuse to enlist equal protection question directly does not however, bound, as a I am homosexuals. mean that the is not of case substantial apply the Constitution as it judge to circuit significance inquiry. to such an interpreted by has been important part An circuit, of the function of agree I whether or not and our own judges interpret circuit court is to the Su- interpretations. Because of this those so, preme opinions. doing Court’s compelled to requirement, I am sometimes attempt principles must understand contrary I believe to be reach a result underlying opinions, so those that we interpretation of constitutional proper past determine how decisions affect subse- is, regrettably, one of principles. This Hardwick, quent respect With cases. those times. májority performing balks at this task. Instead, it states: “the Hardwick Court I. question simply did not address either the In this case we consider the constitution- sodomy whether heterosexual also falls regulation ality of a which bars homosexu- scope privacy outside the Sergeant enlisting Army. als from separate question whether homosexual challenges regulation Perry Watkins sodomy may but not heterosexual be crimi- Equal under the Protection Clause. violating equal protec- nalized without majority holds that homosexuals are a sus- Maj. op. duty tion clause.” at 1439. The class, regulation pect and that the cannot interpret Supreme precedent Court can- scrutiny. survive strict Because I am com- easily Logic not be so avoided. and reason pelled by Supreme recent Court and Ninth among judges are the tools available to first, precedent Circuit to conclude that ho- meaning to determine who wish the mosexuals are not a class and sec- cases. ond, regulation survives both ra- meaning The answer to the of Hardwick scrutiny, tional and intermediate level I only is not difficult to find. There are two must dissent. choices: either is about “sod- Hardwick Hardwick, Bowers v. 106 omy”, sodomy and heterosexual is as con- (1986), S.Ct. 92 L.Ed.2d 140 is the stitutionally unprotected as homosexual involving landmark case con- homosexual “homosexuality”, sodomy, or it is about Hardwick, In Supreme duct. the protect- are and there are some acts which sodomy pro: decided that homosexual is not ed if done but not if heterosexuals done right privacy, tected the and thus applying opinion homosexuals. In that the states are free to criminalize that to future cases our first effort must be to conduct. Because Hardwick did not chal- propositions which decide of the two Hard- lenge Georgia Although sodomy majority statute under wick stands for.2 Tribe, denied,-U.S.-, 1. L. American Constitutional Law cert. Cf. (2nd 1988) (1986), n. 7 ed. § at 1431 [herein- L.Ed.2d 742 which involved a Texas after, Constitutional Law ]: targeted only law ... homosexual acts. majority’s treatise, notes, The Hardwick notation that no In his Professor Tribe in the equal protection issue disclosure, was before the Court interest of full that he served as should not be taken to mean that the Justices Hardwick's counsel before the Court. resolving would have been interested in it if it had been. For the Court denied certiorari Ultimately, as far as the case before us is Wade, that same term in Baker v. F.2d concerned, regardless the result is the same (5th Cir.1985) (en banc), rehearing en which choice we make. See note infra. denied, (5th Cir.1985), banc 774 F.2d 1285 however, making standpoint from the Court’s acknowledge it refuses crucial fact was that Hardwick was a ho- choice, no doubt that it does there can be reason, throughout For that quoted text mosexual. its after the The sentence so. opinion the Court wrote about “homosexual read Hardwick “We cannot above reads: govern- sodomy”. proposition that standing for the as sodomy only when com- may outlaw

ment significant may one It is whatever persons.”3 class of by a disfavored mitted think of the soundness of Hardwick’s as By expressly rejecting Maj. op. at conclusions, sumptions or the decision came option, majority “homosexuality” surprise as no to those familiar with the necessarily the “sod- selects implicitly but rulings of the lower federal courts on the I do believe omy” alternative. rights. subject of homosexual Well before reasonably so construed. can be Hardwick Hardwick, court, along most oth with courts, federal had concluded that the must be read er my opinion, Hardwick proposition Supreme Court had determined that for the standing precisely put privacy inapplicable I to homo simply, To it majority rejects. govern- sexual conduct. As we said in Better v. that after Hardwick believe (9th sodomy Middendorf, 632 F.2d Cir. even ment outlaw homosexual 1980),“Most federal courts ... have under regulate private sexu- though it fails to holding Doe v. Hardwick stood Common conduct of heterosexuals. [in al Attorney, 425 U.S. great to make clear wealth’s took care the Court (1976)] 47 L.Ed.2d 751 to be that only that homosexual saying it was enjoy special constitutionally protected, homosexual conduct does sodomy is not pro under the due hetero- constitutional not that all sexual acts—both fall within cess clause.” and homosexual—that sodomy prohibited. can definition of Hardwick, thrust of The anti-homosexual willingness to condone anti- at issue in Hard- Court’s Georgia statute sodomy. homosexual animus actions all acts of on its face barred wick prominent clear. A con- upheld government, simply have The Court could point makes this suc- mentioning the stitutional scholar even word statute without Tribe, cinctly. Professor Laurence after carefully crafted Instead it “homosexual”. criticizing holding and strongly the Court’s proscribe only and condemn opinion to Hardwick, reasoning in states that sodomy. While it can be ar- “ ‘good about the Court’s decision” news’ gued that the Court was faced prejudice case, clearly based on majori- that it was so sodomy under “may therefore against that it particular act ty’s theory the fact prece- privacy to other pose less of a threat sodomy homosexual nature is of the case.” would otherwise be According majority, to the dents than significance. Law, supra, at preference of the de- Constitutional § the race and sexual majori- Justice Blackmun characterized equally are irrelevant. fendant “obsessively on being example, decision as ty says: “Surely, focus[ed] Hardwick “proceed[ing] and activity”, to outlaw sod- read as a license cannot be are assumption that homosexuals so by blacks.” omy only when committed lives other citizens that their surely, different from Surely not. And Maj. op. at 1439. way that would not controlled rather than a be Hardwick been black had the choices of ... not, if it limited homosexual, through- be tolerated Hardwick, 106 at S.Ct. other citizens.” opinion, have written about “black out its Indeed, (Blackmun, J., dissenting). it It would sim- 2849 sodomy” or black sodomists. Here, in the Court’s sodomy. hard to find basis is ply have written about However, rejected are a sus- claims that homosexuals analysis by which we reach that substantially. pect that criminalized differs class and that a statute result sodomy sod- but not heterosexual 1, Wade,supra note where the But see Baker v. omy equal protection. violates banc, Circuit, sitting en considered and Fifth correct, could, example, way the ma- states criminal- interpreting it the opinion for says explicitly engaged in by chooses: the Court ize the act of oral sex when jority by “majority justified heterosexuals, including that the statute couples, married homosexuality”, 106 S.Ct. sentiments about required to do so if fact would “majority sentiments about to criminalize homosexual sod- they wished sodomy”. Moreover, required omy. states would be (cid:127) equally, to enforce these statutes interpretation of Hard- My colleagues’ alike,5 unsound, heterosexuals and homosexuals unneces only it also wick is not exponen sarily incorrectly practice not heretofore common our soci- increases— damage right privacy to tially differently to the ety. I the Constitution view —the in Hardwick caused Hardwick. While majority apparently does: I than the be- it clear that homosexual the Court made most, protects if not lieve Constitution right protected by the to conduct is not all, private heterosexual acts between con- never held that the privacy, the Court has senting adults. authority regulate government has the to majority opinion undermines the consenting private acts of heterosexual right privacy way. to in another In its Connecticut, 381 v. adults. See Griswold eagerness promote equal protection S.Ct. 14 L.Ed.2d 510 U.S. analysis and to bolster its characterization Baird, (1965); Eisenstadt v. decision, anti-privacy it Hardwick as (1972); Carey 31 L.Ed.2d 349 objective terms more International, 431 Population Services pro- more democratic than substantive due 2010, 52 L.Ed.2d 675 U.S. cess, which it describes as “value-based (1977); Hardwick, 106 S.Ct. at see also line-drawing” arising not from the Consti- (Stevens, J., dissenting). To the “judicial Maj. tution itself but from fiat”. contrary, expressly it has stated that “inti op. necessary at 1440. It is not to deni- relationships” (though apparently mate grate right appre- privacy in order to only variety) heterosexual consti importance ciate the tutionally protected. See Board Di majority’s clause. The attack on substan- Rotary Rotary rectors International v. — process unjusti- tive due is unreasoned and Club, U.S.-, 1940, 1945, fied.6 As the Court has made (1987). Reading 95 L.Ed.2d 474 Hardwick occasions, right clear on numerous implicitly permitting regulation privacy part conduct, is a fundamental of our consti- majority’s heterosexual as the protections, originating in do, tutional analysis it to a seri forces constitutes First, Third, Fourth, Fifth, privacy ous If the and Ninth retreat area.4 Amendments, majority’s interpretation pro- of Hardwick were and of course the due majority's disingenuous identically respect 4.The statement that it must be treated to that way already reads Hardwick neither one nor the other conduct. Since the Court has held that point, maj. op. simply on this neither 1439 n. protected by privacy homosexuals are not logical Only nor credible. if heterosexu- provisions of the Constitution when com- sodomy protected by right priva- al cy is not sodomy, right mit treatment exists majority’s equal protection argu- could the similarly unprotected. if heterosexuals are conceivably any validity. ment If the majority’s argument equal protec- Thus the privacy apply does in the case of heterosexu- applies necessarily premised tion is on view who, sex, example, engage als in oral then sodomy, including that heterosexual oral sex obviously the require clause does not couples, protected by between married is not equal treatment of homosexual and het- right privacy to be criminalized. proce- erosexual sexual conduct. The clause is dural in nature and cannot afford substantive 356, Hopkins, 5. See Yick Wo v. 118 U.S. 6 S.Ct. rights particular group to a when the Constitu- 1064, (1886). 30 L.Ed. 220 provide put tion does not otherwise differently, them. To it pro- group's if one sexual conduct is Ely “severely 6. That Dean John Hart has criti- right privacy and the tected other’s is Wade, 21, not, maj. op. cized” v. Roe at 1440 n. distinguishes it is the Constitution itself that majority’s position per- makes the groups no more the treatment the constitu- between tionally two cannot, then, binding equal suasive and Roe v. receive. use the Wade no less or We protection say groups important clause to that the two constitutional decision.

1455 Hardwick, longer we are no the Fourteenth Amendment. free to reach cess clause of Connecticut, that conclusion.7 381 See, v. e.g., Griswold 484-85, 1681-82. The 85 S.Ct. at U.S. majority opinion The suspect treats as a pri guaranteed by the protections group defining class a whose central to the Constitution vacy are no less desire, predisposition, characteristic is their guaranteed by equal protec those than propensity in conduct that the “Process, Note, generally tion clause. See Supreme has held to be constitution- Court”, Supreme 28 Privacy, and the B.C. ally unprotected, an act that the states Also, (1987). notwithstanding L.Rev. 691 approximately can—and half the states Ely, maj. op. at 1440 the views of Dean see have8—criminalized.9 Homosexuals are agree groups previously different from afforded 21, 22, most commentators ns. protection objec under no more analysis is equal clause that homosexuals are defined sub apply than difficult no less tive and or, least, by their at the their See, e.g., analysis. process due conduct— stantive engage in certain conduct. desire to With Tribe, Puzzling Persistence of Pro “The women, groups, other such as blacks or Theory”, 89 Constitutional cess-Based particular there is no connection between (1980); Westen, Empty “The Yale L.J. group. conduct and the definition of the Equality”, 95 Harv.L.Rev. 537 Idea of plays When conduct a central role (1982). majority, I believe we Unlike defining group may prohibited by be these fundamental con should afford both state, any legiti- it cannot be asserted with digni protections full and stitutional group protected macy specially ty. by the Constitution.10 Sodomy homosexuality. is an act basic to II. statutes, sodomy In the relevant state majority opinion concludes that un- broadly “any usually defined to include by equal protec- der the criteria established involving organs sexual act the sex of one law, tion case homosexuals must be treated person and the mouth or anus of another.” Maj. op. class. at 1444-48. as a See, Hardwick, 106 at 2842 n. 1. e.g., (and cases it not for Hardwick other Were are, practices this definition covered my infra), agree, I would discussed surprisingly, the most common opinion group applicable meets all the Specifically, practices of homosexuals. See, Note, e.g., “The Constitution- criteria. primary oral sex is the form of homosexual Weinberg, al Status of Sexual Orientation: Homosex- Ho activity. A. Bell & M. Classification”, 106-11, (1978). uality Suspect as a mosexualities However, (1985). after Court declares that Harv.L.Rev. When 19, Doe, Law, Plyler supra, v. 457 U.S. 219 n. See Constitutional 9. § Cf. (1982) 1616 n. 47: S.Ct. (rejecting n. 72 L.Ed.2d 786 illegal the claim that aliens are a sus- The fact that the Court in Bowers v. Hard wick, (1986), class, defining pect part 106 S.Ct. 2841 went out of its because the element way act). to create a line between heterosexuals is a criminal of the class homosexuals, where there was none in and the statute, challenged sodomy merely pre Thus, necessary even to decide it is not prosecution under the serve of homosexuals majority’s of Hardwick—that whether the view infirmity, indicates law constitutional sodomy it is based a condemnation of rather homosexuality unlikely it is that will how homosexuality than of correct. Whatever —is quasi-suspect in the near future. But deemed willingness explanation for the Court’s Education, compare Brown v. Board sodomy allow to be criminalized —whether (1954), 98 L.Ed. 873 U.S. morality decision is based on its views as to the Plessy Ferguson, with disapproval on its of sod- of omy, including 41 L.Ed. 256 variety the heterosexual —that pessimistic Professor Tribe’s forecast I note that relates to intermediate affording spe- willingness is inconsistent scrutiny not the protection to homosexuals—a cial constitutional group majority today stricter standard that the even activity, primary form of sexual whose applicable. holds us, may be declared criminal. the Court tells Hardwick, 106 S.Ct. at 2845. 8. See by majority activity among homosexuals; of a of act that is done a vast sexual group’s however, members and is fundamental to sexual is primary intercourse very can be criminalized and their nature among activity form sexual heterosexu- further states that the basis for such crimi als.12 If homosexuals were fact a sus- presumed belief of a ma nalization is “the class, pect criminalizing a statute both het- jority prac ... of the electorate [the sodomy erosexual sodomy and homosexual unacceptable” I is immoral and do tice] equal protection would still not survive free, are whatever our think analysis. prohibition equal, For the to be views, personal discriminatory to describe government prohibit would have to sex- group treatment of the as based on “unrea ual intercourse —conduct as to basic hetero- soning prejudice”. maj. op. at 1444- sodomy sexuals as is to homosexuals.13 obligated accept 45. Rather we are This, obviously, government would not Supreme conclusion that what the Court’s Therefore, equal pro- and could not do. if panel “unreasoning majority of this calls (i.e. apply tection rules if homosexuals are prejudice” permissible is instead a societal class), a ban on homosexual sod- judgment. moral omy could not stand no matter how the already explained principal I have statute was drawn. Hardwick makes it why majority’s interpretation reasons plain contrary is true. covering of Hardwick as heterosexual sod- Finally, “protection” of homosexual omy only damag- is not incorrect but also rights provided by majority opinion ing principles. I to constitutional must majority unwittingly hollow indeed. The majority now add that the errs for another denigrates equal protection clause as important majority reason. The states that right privacy. now, well as the Until requires clause “suspect group class” has been a whose (if government it wishes to criminalize ho- special members were afforded solicitude. sodomy) prohibit mosexual all patently That is respect not the case with engaging proscribed in “the sexual Many deny homosexuals. states Maj. op. analysis acts”. at 1439. This group in their most affords treatment in the most activity. fundamental form of sexual A superficial meaning of the term. Govern- any physical intimacy”, “life without Hard actions, face, ment neutral on their can wick, (Blackmun, J., S.Ct. at 2850 n. effects, distinctly unequal sometimes have dissenting), hardly contemplated the life carry implicit statements inequality. for our citizens Tribe, Declaration of Inde See L. 238- Constitutional Choices (“the or, pendence pursuit happiness”) (1985). against sodomy Laws do not thought, one would have the Constitu affect homosexuals and heterosexuals pre tion. equally. wholly While Hardwick heavily Homosexuals are more possibility physical clude the legislation, burdened such of lawful inti even if we ignore homosexuals, governmental macy drastically it tendency prose- limits general cute sodomy right. proclaim To that under selectively statutes these Hardwick, them. See circumstances homosexuals are afforded (Blackmun, J., 2850 n. 2 dissenting). special protection by Oral the Constitution sex, sodomy, a form of primary is the form hypocritical would be at best. Hardwick, disparate impact upon group 106 S.Ct. at 2846. tral law has a historically been the that has nation, victim of discrimi- sex, though practiced by 12. Oral a substantial purpose may an unconstitutional still be heterosexuals, majority primary is not Certainly, at work. ... when the adverse conse- activity Masters, group. for that See W. upon quences group of a law an identifiable are Kolodny, V. Johnson & Sexuality R. Human strong ... inevitable ... a inference that the (2nd 1985). ed. reasonably adverse effects were desired can drawn.” Personnel 13. Statutes which are Administrator Massachu- neutral on their face sur- 256, 273, Feeney, setts scrutiny vive unless 279 n. 2282, 2293, product However, discriminatory intent. 2296 n. 60 L.Ed.2d 870 noted, as the Court has "when a neu- my rejected Hatheway’s of Lieutenant concluding discussion claim that Before practice prosecuting Hardwick, my of I to record own view of wish general not heterosexuals but under a sod- delayed doing so until I opinion. I have omy statute was unconstitutional. We I applied the case as believe we have have Hatheway’s stated: “We understand claim Now, apply it. I must add that duty a (that the commissionof a homosexual act is Constitution, a state I our as understand impermissible prosecution) an basis for treating any group simply has business equal protection argument.” be an Id. at Georgia persons as the State applied 1382. We then intermediate level sodomy statutes treat other states with scrutiny govern- and concluded that my opinion, In invidious dis- homosexuals. single ment could out those who against group crimination a “homosexual acts”. Id. Our determina- jus- characteristics can never be immutable scrutiny apply tion that did strict not to Lt. grounds society’s moral tified on the Hatheway’s claim, id., necessarily must be regarding the disapproval. No lesson interpreted meaning that we concluded meaning of our Constitution could be more suspect that homosexuals are not a class. a nation to learn. I important for us as egregiously argues majority that because believe our analysis misinterpreted Hatheway apparently the Constitution Hard- was view, rights my improperly based on the “fundamental branch” wick. Hardwick equal protection analysis prejudice against rather than on condones official bias and branch”, “suspect homosexuals, Hatheway class does and authorizes the criminali- preclude holding part that homosexuals that is an essential zation of conduct suspect Maj. op. are a class. 1441- many our of the intimate sexual life of disagree. majority’s position I citizens, group his- that has is based on too narrow a of how view torically the victim of unfair and irra- been questions courts decide constitutional history I will tional treatment. believe the extent to too narrow view of which Plessy much as it views v. view Hardwick holdings. arewe bound constitutional 1138, 41 Ferguson, 163 U.S. thought in Hatheway Had we that strict that, And I am confident L.Ed. 256 scrutiny required by was a “different run, Hardwick, long Plessy, like will clause, equal protection branch” of the it enlight- be overruled a wiser and more obligation apply been our have Hardwick, ened 106 S.Ct. at Court. See higher equal protection test. The issue J., (Blackmun, dissenting). squarely presented by Hatheway. Lt. not affect- The decision Hardwick has him, against We could not have ruled as we Constitution, my ed firm belief that did, apply a standard under failed to properly interpreted, does afford homosex- might prevailed he have unless we which it protections uals the same affords other inapplica- higher standard was believed the groups that are historic victims of invidious opinion does the state that ble. Nowhere Nevertheless, discrimination. for the rea- particular Hatheway Lt. relied on one stated, already my I it sons obli- to the exclusion of branch of the doctrine gation long to follow as has Hardwick as it other, fairly and we make precedential force—and now it does. assumption. Nor are free to refuse to we apply precedent simply because our own III. reasoning may unpersuasive or the majority’s analysis if sur Even the could complete. The hold- explanation less than Hardwick, precluded by vive we ing would be Hatheway is clear: intermediate lev- concluding precedent scrutiny, ap- our own circuit scrutiny, el rather than strict plies that homosexuals are a class. claim to an based F.2d Hatheway Secretary Army, homosexuals. Be- discrimination (9th 1981), recognized a chal Hatheway Cir. we considered cause in claim, acknowledged lenge brought army convicted by officer approach”, applied the interme- We “three-tier general court-martial. sodomy by In Middendorf, S.Ct. at 1313. Better v. scrutiny, and ruled level diate Justice, writing Judge, Kennedy now we can blithe- I do not believe plaintiff, the rights our court -said: “constitutional must holding.14 ignore its ly light special viewed in of the circum- be IV. stances of the armed forces”. 632 F.2d at 810-11. to hold that not free we are Because class, we can homosexuals Army’s justifications rejecting the scrutiny Army’s to the apply strict not regulation, majority give the the fails regulations most the At the

regulations. proper Army’s deference to the determina scrutiny pass must intermediate may do so result in tions. Its failure to —and military’s the that Hatheway we decided unwillingness recognize part from its spe- conduct for singling of homosexual out regarding judgments the moral homosexu that level survives adverse treatment cial Hardwick, ality approved in at intermediate level applying of review: permissible, and deemed at least for prosecutions by scrutiny we concluded military regulations, purpose by the prefer- military the basis of sexual the on Better, Judge Kennedy in 632 F.2d at 811- relationship to an “a substantial ence bear Although Army’s I 12. see no merit the interest.” important government Id. homosexuals, its ideas about beliefs about Army’s discrimi- upheld then the 1382. We consequences allowing Hatheway. We are natory treatment of Army, pandering in the and its serve that mili- by Hatheway homosexuals, to conclude negative stereotypes bound see tary which are based sole- maj. op. permitted we are not “[classifications inter- ly preference” on sexual survive an for the to substitute our views professional judgment” mediate level of review.15 Id. “considered as to persons what kind of should be barred give special deference when must Courts enlisting in order to ensure a disci involving military. adjudicating matters plined fighting force.16 Goldman v. Wein Weinberger, 475 U.S. v. Goldman berger, 106 S.Ct. at 1313. (1986); 1310, L.Ed.2d 478 Rostker analyzing explanations After the various Goldberg, v. Army, majority In the context of a offered dismiss- L.Ed.2d challenge, purposes regulations as ille- first amendment es the recently gitimate Maj. op. stated: “Our review of or irrational. at 1448- Court has military regulations Again, majority position is far more defer- takes a ... open only review of us. For not have ential than constitutional similar that is designed to the laws or for civilian our cases told us we must defer kind, society.” Weinberger, military judgment matters of this Goldman Moreover, majority’s assumption applicable Hatheway survives Hardwick. estab- solely Hatheway rights ceiling appropriate relied the "fundamental for the level of scru- lished a may overly-sim- clear, minimum, branch" be based on an tiny; Hardwick makes it at a plified view of doctrine. While ceiling higher. that the can be no clearly many equal protection cases fall exclu- other, some, sively within one branch or the like Weinberger 16.To the claim in Goldman v. Hatheway, Hatheway do not. The facts in in- military's regulation applied irration- activity special protec- volved both an tion to which support, empirical al and without the Court activity may applicable private be — stated: group special protection may —and a for which expert whether witnesses But addition, required —homosexuals. religious exceptions to feel that AFR 35-10 are group by its connection to the activi- is defined quite point. Thus, desirable is beside the The desir- ty. Hatheway presents paradigmatic ability military merger of dress is that call for a mixture or circumstances officers, appears may, appropriate military It of the two branches. intentionally decided inadvertently, have used they are under no constitutional mandate approach Hatheway, case. See 641 F.2d in that professional to abandon their considered at 1382. judgment. 106 S.Ct. at 1314. question regarding Hatheway is 15. The real holding scrutiny is whether our that mid-level reasoning very upheld persons between class of who engage majority rejects. justifications now slightly homosexual acts and the broader Army involving negative advanced class of who have a homosexual views about homosexuals and homosexuali- Relying distinction, orientation. on this ty accepted by have been earlier decisions majority argues also regula- legitimate impor- of this court as both status, tion about not conduct. It is Better, 811-12; tant. 632 F.2d at see majority unclear whether the arguing Hatheway, 641 F.2d at 1381-82. We are suspect that homosexuals are a class sim- prior not free to reconsider those conclu- ply they by a class defined sions unless or until our court as a whole conduct, status rather than or whether it is agrees to do so en bane. arguing question that, majority says It is true as the on by is unaffected Hardwick because that occasions, maj. op. several 1449- case involves conduct rather than orienta- Army could not treat it blacks as event, tion. either I do not believe we treats homosexuals and could not base its escape can the conclusion that “homosexu- negative judgments regard on als”, defined, however qualify cannot as a ing appealing blacks. No matter how suspect class. be, analogy may we are not free to draw it Even if we define the class as those who approve Hatheway here. Better and both orientation”, have a “homosexual its mem- discriminatory against treatment homosex active, bers will consist principally prac- uals, by military, judg on based moral ticing may homosexuals.18 That the class regarding homosexuality. ments See Bel also include a persons small number of who ter, 811-12; Hatheway, 632 F.2d at are or wish to be celibate is irrelevant for 1381-82; Hardwick, F.2d at see also purposes determining group whether out, majority points S.Ct. at 2846. As the suspect as a whole a constitutes class. I against similar biases could not blacks simply way see say that homosexuals form the for basis state action status) broadly (by suspect defined are a Sidoti, group. Palmore v. class, group, but that the same if more 80 L.Ed.2d 421 Thus, conduct) regarding narrowly (by simply cases blacks are defined is not. irrelevant.17 group by Whether the is defined status or conduct, composition essentially is

Y. short, the same. “homosexuals” are suspect they either a class or aren’t. The majority attempts The to overcome the problems (and, depend answer cannot niceties of posed by Hardwick to some on the extent, by Hatheway) by distinguishing class definition.19 means, suggesting, pretend 17. I am not that all duct. To or hetero- discriminatory affecting sexuality statutes is unrelated to sexual conduct borders dealing only distinguishes are valid. We are here with mili- on the absurd. What the class of action, tary regulations. governmental Other homosexuals from the class of heterosexuals is statutes, emotions", including subject vague "range state would still be not some but the proclivities examination under a number of constitutional nature of the member’s sexual principles, including interests. concerned, clause. As far as that clause is purposes necessary of this case it is me to equal protection jurisprudence 19.Nowhere scrutiny conclude that strict is not the protected can there be found a class that is proper supra. standard. See note merely slightly unprotect- a broader an form of end, majority’s ed class. In distinction majority appears unwilling nought. 18. The to be to ac- between status and conduct comes to class, knowledge point. maj. op. truly this at 1438 n. For if homosexuals were However, (or Army regulation the fact that homosexuals on conduct would be based orientation”) persons engage "homosexual as unconstitutional as one based on status. See engage (“We maj. op. or seek to in homosexual conduct is as cannot read Hardwick as standing government proposition unremarkable as fact that "heterosexuals" for the (or orientation") persons may sodomy only of "heterosexual en- when committed outlaw gage engage persons.”). in or seek to in heterosexual con- disfavored class of policy regarding ho- arguing is stated majority What mosexuality: targeted at “orientation” regulation that a Homosexuality incompatible with mili- is rationality review. survive too broad to mili- presence tary service. making However, this majority if the persons engage tary environment of who of difficult are a number argument, there who, by their in homosexual conduct or first. For exam- answer questions it must statements, propensity demonstrate majority’s status/conduct ple, under the conduct, seriously engage in homosexual distinction, could be excluded Watkins accomplishment the mili- impairs regulations slightly based tary mission. target only so as to narrowly drawn more Regulation Read 635-200 1115-2.22 who have the class light, constitute an conduct. If Watkins’ actions those who in or attempt to exclude (and category that narrower fall within engage in homosexual acts. ma- will do), is therefore a mem- and Watkins jority makes much of the fact that is not consti- persons class of ber of a opportunity regulation allows a soldier an standing he tutionally protected, does prove homosexual act he has to that a constitutionality of these challenge the to Maj. op. engaged in was aberrational. does, the cor- regulations?20 If he Contrary I majority, to the do not simply strike the few remedy be to rect proves regulation is think that this broad, regulations make too words orientation rather than conduct. The about invalidating regula- all of the rather than regulation’s exception relates to conduct: it Spokane Ar- Brockett v. distinguish tions? allows the to between Inc., cades, likely engage are in homo- soldiers who (practicing conduct in the future majority simply L.Ed.2d homosexuals) likely and those who are not similarly other not discuss these and does (heterosexuals engage in an to do so who questions. troublesome isolated homosexual act due to intoxication Moreover, disagree majority’s I with reason). I or some similar consider distinction, applied as status/conduct regulation exception of this inclusion case, I for another reason. view the a rational exercise of discre- to constitute my as a conduct case. case before us legitimate attempt predict future tion—a regarding opinion, the facts Watkins clear- past conduct on the basis of conduct. disqualifying and the ly demonstrate acts However, purpose analyzing I see little regulations may properly be before us Army’s regulations in detail here. Suf- First, regulations. Wat- viewed as conduct say disagree major- I fice it to engaging opin- in homosex- ity’s my kins has admitted of them. In characterization ion, targeted at conduct other servicemen while ual conduct with future, conduct —past, present, and but Army. inte- Those admissions form an nonetheless. gral part for the reasons Second, permit refusal to him to reenlist. majority’s In the status/conduct end light does not advance cause.23 must be construed distinction See, e.g., Hatheway, (per- to believe that it would not be 641 F.2d at 1382-83 there is no reason sodomy equally applicable son accused of homosexual ing lacks stand- to the section which states challenge constitutionality applying disqualifi- homosexuality is a nonwaivable heterosexuals). sodomy law use the for reenlistment. Both sections cation same of "homosexual”. definition example, 21. For the underlined words could be regulation's removed from the definition "ho- question whether that do not reach 23.I person, "Homosexual means a re- mosexual”: purposes is relevant for other than distinction sex, in, engages gardless of who desires to en- California, criminal law. Robinson v. 1417, in, gage or intends to in homosexual Cf. (1962) 8 L.Ed.2d 758 U.S. 15-2(a) (em- Army Regulation 635-200 acts." phasis If act; (criminal penalties some added). must be based on merely they may on not be inflicted the basis policy 22. The statement of is from the section' condition). person’s However, "Separation Homosexuality". part analysis, of its or without that With ultimately majority’s effort comes a JAFFREE; Jaffree, Ishmael Mozell Hurst Hardwick, Beller, cropper Hatheway, on on behalf of herself and all Rostker,24 Goldman situated; similarly Jamael Akki Jaf

free; Green; Makeba Chioke Saleem Jaffree; Jaffree; Mailah Akwete Tali CONCLUSION Jaffree, infants, by bah Akwokwo out, through father, majority points Sgt. As the Watkins their best of friend Jaffree, every aggrieved. to feel Ishmael has reason His behalf of them persons similarly selves and all other homosexuality has been well known for situated; Chrystobel Allen; During many years. period, that entire his Deborah Allen; Allen; army exemplary. has Those Darlene service been Ronald Lernard Allen; him, Preston; including Rebecca Michelle who have worked with his Clara Preston; Kidd, supervisors, are anxious to see him contin- Essina M. Nikklas R. Yet, Plaintiffs-Appellants, military career. under the ue with his (and circuit’s) Supreme Court’s our own Constitution, interpretation of WALLACE, George C. as Governor of the solely career is free to terminate that Alabama, etc; Jr.; Tyson, State of John he is a homosexual. There are Thomasson; Williams; Isabelle Nolan authority entities which have the three Fulmer; Poole; Dr. L. John Victor P. I, Sgt. to afford Watkins the relief which Martin; Dr. Harold C. Dr. James B. majority, proper interpre- like the believe a Jr.; Allen, Evelyn Pratt, and Dr. require. tation of the Constitution members of the Alabama State Board First, could undo the Education; Wayne Teague, Super damage wrought to the Constitution Education; intendent of Ala. Bd. of Hardwick; precedent it overrule that could Board of School Commissioners of Mo Second, directly implicitly. County; McCain, Judy bile A. individu voluntarily unfair could abandon its ally and as member of Board of School (or, discriminatory regulation I would as- Commissioners; Belk; Charles S. Ho sume, Department of Defense could Mathis, III; ward F. Norman C. Cox so). Third, Congress direct it to do Gilliard, Individually Robert and Dr. appropriate legislation prohibit- could enact and as members of Board of School ing excluding armed services ho- County; Commissioners Mobile Dr. recognize prac- mosexuals. I that from a Hammons, Individually Abe and as Su standpoint tical fo- existence of these perintendent County the Mobile Sgt. offer rums Watkins little solace. Education, Douglas Board of T. Nevertheless, panel I do not believe that a Smith, System teacher Public School may, of the Ninth Circuit consistent with Alabama, Montgomery County, De duty apply precedent properly, afford fendants-Appellees. him the relief he seeks. No. 87-7359. reasons, I reluctantly For the above must Non-Argument Calendar. dissent. Appeals,

United States Court of Eleventh Circuit. Jan.

24. As the (D.C.Cir.1987), majority acknowledges, maj. op. its conclu- 822 F.2d 97 at 1443 contrary sions are also to those of several other & n. 25. particular, Webster, circuits. see Padula v.

Case Details

Case Name: Sergeant Perry J. Watkins v. United States Army

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Feb 10, 1988

Citation: 837 F.2d 1428

Docket Number: 85-4006

Court Abbreviation: 9th Cir.