The Constitution presumes that, absent some reason to infer antipathy, even improvident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted. Thus, we will not overturn such a statute unless the varying treatment of different groups or persons is so unrelated to the achievement of combination of legitimate purposes that we can only conclude that the legislature's actions were irrational.
Id. at 97 (emphasis supplied).
There are no reasons to "infer antipathy" between Congress and those homosexuals who are not practicing or exhibiting their orientation through sexual conduct in the Armed Forces as such was the case with plaintiff. Congress is, and for most of this century has been, controlled by a majority party which has taken a great deal of pride in giving legislative aid to those groups in society who have been discriminated against, taken advantage of, or downtrodden. Furthermore, Congress and the various state legislatures around the nation have responded to the homosexual community on numerous occasions in the last decade with respect to the HIV epidemic. See supra note 15.
And so it is with deference to the military and its professional judgment, with deference to the legislature, and under the teaching of Pacific States that the Court takes judicial notice of the widely praised and accepted final report of the Presidential Commission on the Human Immunodeficiency Virus Epidemic [hereinafter Presidential Report ].
In that report it was stated that the HIV "epidemic has predominantly been confined to people participating in behaviors such as homosexual sex and intravenous drug abuse . . . ." Presidential Report at 15. The latest figures available from the Centers for Disease Control show that of the AIDS cases reported through August 1991, 59% of all adults and adolescents were exposed because they were men who had sex with other men. CDC Report at 9, Table 4. Among males, 65% of adults and adolescents were exposed to HIV and subsequently contracted AIDS because of sex with other males. Id. at 10, Table 5.
Article I, Section 8, gives the Congress the power to "raise and support Armies, . . ." and "to provide and maintain a Navy," and "to make Rules for the Government and Regulation of the land and naval forces."
Implicit in the power to support armies is the power to make rules concerning their health and welfare. Regulations designed to protect the health of the nation's Armed Forces are not new. During World War I, Congress authorized the Secretary of War to make regulations to suppress "houses of ill-fame" in the vicinity of military camps. In McKinley v. United States, 249 U.S. 397, 63 L. Ed. 668 , 39 S. Ct. 324 (1919), the plaintiffs in error were convicted of keeping such a house within five (5) miles of a camp, in violation of the regulations. Plainly, since Congress is empowered to raise and support armies, it may do whatever is necessary to protect the health and welfare of those armies, however much its legislation and regulations promulgated pursuant thereto might impinge on what would otherwise be the subject of police power reserved exclusively to the States. Keller v. United States, 213 U.S. 138, 53 L. Ed. 737 , 29 S. Ct. 470 (1909). The Supreme Court in McKinley sustained the convictions.
The power to protect the Armed Forces from venereal disease is ample to sustain the power to protect them from what is now known to be a fatal and incurable virus, the HIV. Given that at least 59% of all those who have contracted HIV have done so due to homosexual or bisexual activity, surely it does not require extended discussion in the dialectic and sterile cliches of "how equal the Equal Protection Clause's protection must be," to show that the exclusion of homosexuals from the Armed Forces constitutes a reasonable step towards the protection of those forces' health.
To be sure, there is no evidence in this case about the plaintiff having had sex with anybody, male or female. But the defendants' policy of excluding homosexuals is rational in that it is directed, in part, at preventing those who are at the greatest risk of dying of AIDS from serving in the Navy and the other armed services.
This is understandable in light of the overall military mission of defending the Nation. The interest we as a Nation have in a healthy military cannot be underestimated or discounted.
The Department of Defense's regulations that prohibit homosexuals from serving in the Navy and the other armed services establish classifications that rationally further legitimate state purposes. Those purposes include the maintenance of discipline, morale, good order, a respected system of rank and command, a healthy military force, morality and respect for the privacy interests of both officers and the enlisted. Plaintiff is not a member of a suspect class entitled to heightened scrutiny. Under the deferential standard of rational basis review, coupled with judicial deference to the military and the legislature, the regulations in question are not violative of the equal protection component of the Due Process Clause of the fifth amendment. The Court reaches these conclusions without reference to the final report of the Presidential Commission on the HIV (Watkins Report), the Center for Disease Control statistics or the Pacific States precedent; however, it notes that these factors strengthen the conclusions heretofore reached.
An appropriate order granting defendants' motion for summary judgment accompanies this memorandum.
Oliver Gasch, Judge
Dec 9th 1991
ORDER - December 9, 1991, Filed
Upon full consideration of defendants' motion for judgment on the pleadings or, in the alternative, for summary judgment, plaintiff's opposition thereto, plaintiff's cross-motion for summary judgment, defendants' opposition thereto, the oral argument of counsel in open court and the entire record herein, and for the reasons set forth in the accompanying memorandum, it is by the Court this 9th day of December, 1991,
ORDERED that defendants' motion for judgment on the pleadings be, and hereby is, denied; and it is further
ORDERED that plaintiff's cross-motion for summary judgment be, and hereby is, denied; and it is further
ORDERED that defendants' motion for summary judgment be, and hereby is, granted.
Oliver Gasch, Judge
ORDER - December 9, 1991, Filed
It appearing to the Court that judicial notice was taken of two documents not presently part of the permanent record in this case, namely, the final report of the Presidential Commission on the Human Immunodeficiency Virus Epidemic, submitted to the President of the United States on June 24, 1988, and "HIV/AIDS Surveillance," Department of Health and Human Services, Public Health Service, Centers for Disease Control, National Center for Infectious Diseases, Division of HIV/AIDS, September 1991, it is by the Court this 9th day of December, 1991,
ORDERED that the Clerk file these two documents as part of the permanent record in this case.
Oliver Gasch, Judge