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December 9, 1991

DICK CHENEY, Secretary of Defense, et al., Defendants.

The opinion of the court was delivered by: OLIVER GASCH

 This matter is before the Court on defendants' motion for judgment on the pleadings, or in the alternative, for summary judgment. The plaintiff has filed a cross-motion for summary judgment. The case has been fully briefed and argued in open court.

 This suit is about the constitutionality of classifications by the military on the basis of sexual orientation. The plaintiff is suing for his diploma from the Naval Academy, his commission as an Ensign in the United States Navy, a declaration that his resignation was null and void, and for a declaration that the Department of Defense Directives 1332.14 and 1332.30, and all other regulations applied to the plaintiff prohibiting those with a homosexual orientation *fn1" from serving in the Navy or attending the Naval Academy, are violations of the equal protection component of the fifth amendment to the Constitution. *fn2"

 On the merits, the Court has concluded for the reasons stated below that defendants are entitled to judgment as a matter of law. The Court will therefore grant defendants' motion for summary judgment.


 The plaintiff was a midshipman in good standing at the United States Naval Academy in Annapolis, Maryland, when in March 1987, a few months before his expected graduation, he learned that he was under investigation by the Naval Investigative Service ("NIS") for his alleged homosexuality. *fn3" The NIS had received a report from the Academy that plaintiff had admitted his homosexuality to another midshipman. Upon learning of the NIS investigation, the plaintiff sought advice from a friend, a Chaplain at the Academy. After plaintiff admitted his homosexuality to the Chaplain, the Chaplain offered to help plead his case for a timely graduation with the Commandant of Midshipmen. This was accomplished, but on March 23, 1987, plaintiff was told by the Commandant that graduation was not going to be possible because of the servicewide regulations promulgated in 1981 under Department of Defense ("DoD") Directive 1332.14, pt.1, ยง H, para. 1(a), reprinted in 32 C.F.R., pt. 41, app. A, which prohibit homosexuals from serving in the Armed Forces. *fn4"

 After hearing from the Commandant himself that graduation was impossible, plaintiff indicated that he would want to leave the Academy "as soon as possible." Def. Motion, 6 (quoting Second Statement of Capt. H.W. Habermeyer, Jr. (Mar. 23, 1987), at 1); see Steffan I, 733 F. Supp. at 116. *fn5" As a courtesy to an accomplished young man, the Commandant arranged for an expedited review process for plaintiff in order to accommodate his wishes. The Brigade Military Board met the following day, March 24, 1987, to review the Steffan case. At that hearing plaintiff admitted his homosexuality on the record and stated that he did not "desire to be commissioned as an officer of the Naval service by continuing as a midshipman of the Naval Academy." Hearing Transcript (Mar. 24, 1987) (affidavit of Marc Wolinsky, filed October 16, 1989, Ex. K, 6); see Steffan I, 733 F. Supp. at 116. When asked by Captain Habermeyer on March 23, 1987, "Are you willing to state at this time that you are a homosexual?", plaintiff responded, "Yes, sir." Pl. Mem. at 12. *fn6" At the Brigade Military Performance Board on March 24, 1987, Deputy Commandant, Captain Konetzni asked plaintiff: "I'd like your word, are you a homosexual?" Again plaintiff responded: "Yes, sir." Id. at 15; Wolinsky Aff., Ex. K. at 6.

 On April 1, 1987, the Naval Academy Academic Board convened to consider the plaintiff's case. By unanimous vote the Academic Board determined that the plaintiff had "insufficient aptitude to become a commissioned officer in the naval service." Def. Motion at 7, quoting Memorandum from Superintendent to plaintiff (Apr. 1, 1987), at 1. The Superintendent of the Academy wrote the plaintiff a memorandum that same day and advised the plaintiff of his intention to recommend a discharge to the Secretary of the Navy. Id. The Superintendent, however, gave the plaintiff the option of submitting a qualified resignation to the Secretary, in which case the Superintendent would forego submitting his recommendation of discharge. The benefits of resignation were discussed with plaintiff. If he resigned, he would be honorably discharged; if not, his would be an involuntary discharge. It was made clear to plaintiff that an involuntary discharge would have a notation on his record that would indicate the plaintiff was a homosexual, whereas, if he resigned, no such notation would appear. Id. at 7-8.

 On April 1, 1987, the plaintiff submitted his qualified resignation. *fn7" On May 6, 1987, it was accepted by an Assistant Secretary of the Navy. More than eighteen months later, on December 9, 1988, the plaintiff wrote the Secretary of the Navy requesting that his resignation be withdrawn. The present action was filed December 28, 1988. The Secretary denied the request to withdraw the resignation in February of 1989.



 This is not a case of first impression. This may be the first time that a student at one of the service academies of the United States Armed Forces was not permitted to graduate because of his admitted status as a homosexual, but it is certainly not the first time that the regulations in question have been reviewed for their lawfulness on an equal protection challenge under the fifth amendment. See Ben-Shalom v. Marsh, 881 F.2d 454 (7th Cir. 1989), cert. denied, 494 U.S. 1004 (1990) (lesbian denied re-enlistment in Army); Dronenburg v. Zech, 239 App. D.C. 229, 741 F.2d 1388 (D.C. Cir. 1984) (Naval petty officer discharged for admitted homosexual conduct with recruit on Navy property); High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563 (9th Cir. 1990) (class of homosexuals working in defense industries subject to expanded investigations for security clearances); Woodward v. United States, 871 F.2d 1068 (Fed. Cir. 1989) (Navy reserve released from active duty after being seen associating with an enlisted man awaiting discharge for homosexuality); Rich v. Secretary of Army, 735 F.2d 1220 (10th Cir. 1984) (serviceman honorably discharged for fraudulent enlistment when Army later learned he was homosexual despite earlier denial upon enlistment).

 The plaintiff maintains that homosexuals, gay men and lesbians if you will, are a "suspect" or "quasi-suspect" *fn8" class of persons who as a result of such classification are entitled to have the government action complained of, or regulation as applied as in this case, subject to a form of heightened scrutiny on an equal protection challenge. Plaintiff seeks to distinguish all of the cases cited above, as well as others, on the grounds that each involved some kind of homosexual conduct, while in this case it is the plaintiff's status as a homosexual that is at issue.

 From the landmark classification case of Cleburne v. Cleburne Living Center, Inc., there are three recognized levels of review that are used in equal protection cases: "strict scrutiny," "heightened review" (also called "intermediate scrutiny") and rational basis review. Cleburne, 473 U.S. at 440-42. As stated in Ben-Shalom v. Marsh, "in general, a government regulation will be presumed to be valid under equal protection analysis as long as the classification drawn by the regulation 'rationally furthers some legitimate, articulated state purpose.'" Ben-Shalom, 881 F.2d at 463 (quoting McGinnis v. Royster, 410 U.S. 263, 270, 35 L. Ed. 2d 282 , 93 S. Ct. 1055 (1973) (legislative classification of state prisoners denying them credit for "good time" during presentence incarceration in county jails upheld on equal protection challenge)).

 Rational basis review is a deferential standard of scrutiny that is "grounded in a constitutional presumption that 'improvident [classifications] will eventually be rectified by the democratic processes.'" Ben-Shalom, 881 F.2d at 463 (quoting Cleburne, 473 U.S. at 440). The warning in Cleburne is clear, however. When government conduct or a regulation makes classifications that are based on "factors which are so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy," then a form of heightened scrutiny is used in lieu of rational basis review. Id.

 A. Homosexuals not a "Suspect" or "Quasi-suspect" Class

 The district court in Ben-Shalom held that homosexuals were a suspect class, a holding which was subsequently reversed by the Seventh Circuit. Ben-Shalom, 881 F.2d at 463-64. There is ample authority to support the defendants' position in this case that those with a homosexual orientation are not a suspect class. Id.; Rich, 735 F.2d at 1229; National Gay Task Force v. Board of Education, 729 F.2d 1270, 1273 (10th Cir. 1984), aff'd, 470 U.S. 903, 84 L. Ed. 2d 776 , 105 S. Ct. 1858 (1985); Hatheway v. Secretary of Army, 641 F.2d 1376, 1382 (9th Cir.), cert. denied, 454 U.S. 864, 102 S. Ct. 322, 70 L. Ed. 2d 163 (1981); DeSantis v. Pacific Telephone & Telegraph Co., 608 F.2d 327, 333 (9th Cir. 1979).

 The best way, however, to determine if the plaintiff is a member of a suspect class is to review the analysis used in Bowen v. Gilliard, 483 U.S. 587, 97 L. Ed. 2d 485 , 107 S. Ct. 3008 (1987) (equal protection heightened scrutiny inapplicable where amendment to welfare legislation intruded on family living arrangements). See Cleburne, 473 U.S. at 442-47.

 Under Bowen the plaintiff must: 1) have suffered a history of discrimination, 2) exhibit obvious, immutable, or distinguishing characteristics that define him as a member of a discrete group; and 3) show that the group is a minority or politically powerless, or alternatively show that the statutory classification at issue burdens a fundamental right. Bowen, 483 U.S. at 602-03 (citing Lyng v. Castillo, 477 U.S. 635, 638, 91 L. Ed. 2d 527 , 106 S. Ct. 2727 (1986) (eligibility and benefit levels in federal food stamp program determined on "household" basis rather than individual basis such that close relatives were not "suspect" or "quasi-suspect" class)).

 1. History of Discrimination

 Using the Bowen test then, plaintiff alleges that those with a homosexual orientation have, in fact, suffered a history of discrimination. See High Tech Gays, 895 F.2d at 573.

 The court in Ben-Shalom however, held that discrimination was not responsible for the military's policy of excluding homosexuals. With reference to the concurring opinion of Norris, J., in Watkins v. United States Army, 875 F.2d 699 (9th Cir. 1989) (en banc), *fn9" the Seventh Circuit said: "Homosexuals have suffered a history of discrimination and still do, though possibly now to a less degree. We do not see, however, that the new regulation embodies a gross unfairness in the military context so inconsistent with equal protection as to be termed 'invidious.'" Ben-Shalom, 881 F.2d at 465-66 (footnote omitted).

 2. Distinguishing Characteristics

 The next question concerns obvious, immutable or distinguishing characteristics that define those with a homosexual orientation as a discrete or separate group. Plaintiff argues eloquently that there is no way to distinguish those persons with a homosexual orientation by way of performance of their duties. The plaintiff himself is an example of this point; academically he was in the top ten percent of his class at the Academy, and he was slated for one of the most prestigious assignments after graduation, duty on a nuclear submarine. Beyond all that, he is a talented young performer and singer who made the Academy and our country proud on several occasions. *fn10" It can fairly be said that there is nothing obvious or distinguishing about plaintiff's homosexual orientation which sets him apart.

 Even if it were maintained that his sexual preference for men was a distinguishing characteristic, nothing in the record indicates that the plaintiff overtly "exhibited" such a characteristic. In fact, he kept his sexual preference secret between the time he determined his preference in his third class (second or sophomore) year, and February or March of 1987 when he told a fellow midshipman, despite knowing all the while that the DoD and the Academy had regulations prohibiting homosexual orientation or conduct. *fn11"

 3. Immutability

 Whether homosexual orientation is an immutable characteristic is difficult to analyze. The Federal Circuit in Woodward found homosexuality to be "primarily behavioral in nature." Woodward, 871 F.2d at 1076. In High Tech Gays the Ninth Circuit came to a similar conclusion. High Tech Gays, 895 F.2d at 573-74. Each of those cases, however, dealt with fact situations where some homosexual conduct was part of the record. This case is different. The Court is, however, convinced that homosexual orientation is neither conclusively mutable nor immutable since the scientific community is still quite at sea on the causes of homosexuality, its permanence, its prevalence, and its definition. *fn12"

  On the matter of suspect classifications, the Supreme Court seems to focus on the question of whether an individual chooses the characteristic that defines the class or not. Plyler v. Doe, 457 U.S. 202, 220, 72 L. Ed. 2d 786 , 102 S. Ct. 2382 (1982); Cleburne, 473 U.S. at 441 (quoting Mathews v. Lucas, 427 U.S. 495, 505, 49 L. Ed. 2d 651 , 96 S. Ct. 2755 (1976)). One's race is determined genetically, and one's gender is -- unless there is new evidence worthy of a Nobel prize -- commonly believed to be a random event. Frontiero v. Richardson, 411 U.S. 677, 686, 36 L. Ed. 2d 583 , 93 S. Ct. 1764 (1973) (plurality opinion). One's national or ethnic origin and whether one was born out of wedlock are characteristics similarly not subject to choice by the person being so classified. In the Plyler case, the Supreme Court subjected a Texas statute denying public school education to children of illegal aliens to heightened scrutiny and found that Texas had denied the children their right to equal protection of the laws. Id. at 205, 230. The Court noted that illegal aliens who are adults are not a suspect class since the conduct that defines the class is unlawful, and their status as illegal and as aliens is not immutable. Minor children of illegal aliens, on the other hand, do not consciously choose their status, nor can they very well alter it by leaving the country on their own accord. Id. at 219-220.

 Seeing how the choice of the characteristic influences the decision on whether or not the class that bears the characteristic is "suspect" or "quasi-suspect," the Court turns to the case at bar. Homosexual orientation, plaintiff asserts, is not a matter of choice. Pl. Mem. at 47-49. Defendants, on the other hand, agree with the Federal Circuit in Woodward that the characteristic is primarily behavioral in nature, and that if man is a mammal in control of his own behavior, he therefore chooses his sexual orientation. As aforementioned, the scientific community is unclear and unsure about many of the causes and attributes of sexual orientation. It is not for this Court to say definitively whether sexual orientation is always chosen by the individual, but it is apparent that sometimes it is chosen. This realization puts sexual orientation closer to the category of alien adults who are not a suspect class under Plyler, than to their children who did not choose their status.

 4. Fundamental Rights

 On the question of a fundamental right, in Bowers v. Hardwick, 478 U.S. 186, 92 L. Ed. 2d 140 , 106 S. Ct. 2841 (1986), the Supreme Court upheld a Georgia criminal sodomy statute as applied to a consenting adult homosexual male found engaging in homosexual sodomy in his home. It was determined in Bowers that there was no fundamental right to engage in that kind of activity. Id. at 192. Since plaintiff does not maintain that he has a fundamental right to have a homosexual orientation under the Constitution, we need not reach that issue. *fn13"

 5. Political Power

 The last issue concerning a suspect class is political powerlessness. Even it were proven that homosexual orientation was immutable, or indeed, not subject to individual choice, it is still very clear that homosexuals as a class enjoy a good deal of political power in our society, not only with respect to themselves, but also with respect to issues of ...

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