of this litigation. This agreement expired on October 29, 1993, when the Supreme Court limited the injunction in Meinhold solely to the named plaintiff. On November 2, 1993, this Court issued a temporary restraining order maintaining the status quo while it considered the issues presented in this case. The order restrained defendants for 10 days from taking any adverse action against plaintiff based solely on his status as a homosexual.
A party moving for a preliminary injunction must demonstrate: 1) a substantial likelihood of success on the merits, 2) irreparable injury absent an injunction, 3) relatively less injury to the non-moving party, and 4) that the injunction will promote the public interest. See Washington Metro. Area Transit Auth. v. Holiday Tours, Inc., 182 U.S. App. D.C. 220, 559 F.2d 841, 844 (D.C. Cir. 1977). For the reasons set forth below, this Court finds that plaintiff is entitled to the preliminary injunction he seeks.
A. Likelihood of Success on the Merits.
Plaintiff has demonstrated probable success on the merits with respect to his removal from active duty. The policy applied to plaintiff must be reviewed under the rational basis test. Under the rational basis test, a government policy fails if it does not serve a legitimate governmental purpose or deprives an individual of his constitutional or legal rights.
The cornerstone of the armed forces' homosexual ban is that homosexual's serving in the armed forces impair the ability of the military to perform its mission. According to the Marine Corps policy statement, homosexual Marines adversely affect the service's ability to "maintain discipline, good order, and morale; to foster mutual trust and confidence among Marines; to ensure the integrity of the system of rank and command; to facilitate assignment and worldwide deployment of service members who frequently must live and work under close conditions affording minimal privacy; to recruit and retain members of the Marine Corps; to maintain public acceptance of military service; and to prevent breaches of security." MarCorSepMan P 6207.1
Defendants state that the courts should defer to the "considered professional judgment" of military officials as to who is fit to serve their country in the armed forces. Goldman v. Weinberger, 475 U.S. 503, 509, 89 L. Ed. 2d 478, 106 S. Ct. 1310 (1986). Defendants take the position that under the policy at issue here, "'appropriate military officials' concluded, as a matter of 'considered professional judgment,' . . . that 'the presence of persons who engage in homosexual conduct or who, by their statements, demonstrate a propensity to engage in homosexual conduct, seriously impairs the accomplishment of the military mission.'" Defendants' Memorandum in Opposition to Plaintiff's Motion for a Preliminary Injunction at 25, quoting Goldman supra at 509 and DOD Directive 1332. They also cite this circuit's holding in Dronenburg v. Zech, 239 U.S. App. D.C. 229, 741 F.2d 1388 (D.C. Cir. 1984) to support their assertion that the Marine Corps' discharge of plaintiff passes constitutional muster.
This court is unpersuaded by defendants' arguments. First the Dronenburg case involved sexual misconduct by a homosexual soldier. The instant case is devoid of any such allegation. This case involves adverse action against plaintiff based solely on his homosexual status. Recently, Judge Oberdorfer had the opportunity to pass on the same issue presented here, namely, whether a serviceman's homosexual status by itself can justify his discharge from active duty. See Selland v. Aspin, 832 F. Supp. 12 (D.D.C. 1993). In that case Judge Oberdorfer granted a preliminary injunction to a homosexual sailor barring the United States Navy from discharging him solely on the basis of his sexual orientation. In so doing, Judge Oberdorfer distinguished between homosexual orientation and homosexual conduct in reaching the conclusion that the plaintiff, Richard Selland, would likely prevail on the merits. Neither the Court of Appeals nor the Supreme Court has yet ruled on this issue.
Defendants present no evidence that homosexual status alone adversely affects the accomplishment of the military mission. Examination of the record in this case reveals no basis, other than the Marine Corps' policy statement that supports the discharge of a service member solely because of that member's status as a homosexual. It is well established that courts cannot give "private biases" legal effect. Palmore v. Sidoti, 466 U.S. 429, 433, 80 L. Ed. 2d 421, 104 S. Ct. 1879 (1984). At this stage of the proceedings, plaintiff presents a strong case that he will probably succeed in establishing that the policy banning homosexuals from the military solely on the basis of status serves no legitimate governmental purpose.
B. Irreparable Injury.
The Court finds that plaintiff will suffer irreparable injury if the Marine Corps is allowed to involuntarily discharge him and deprive him of his rights as a Marine. First, plaintiff will suffer the loss of constitutional rights for which money damages are inadequate, namely, the right to equal protection under the Fifth Amendment. Defendants' actions also implicate free speech concerns under the First Amendment. Second, plaintiff stands to lose his medical benefits, his opportunity to participate in the VSI/SSB program, and a portion of his retirement pay. Third, plaintiff faces the stigma of being removed from active duty as a sergeant in the Marine Corps--a position which he has performed in a sterling fashion for eleven years--and labeled as unfit for service solely on the basis of his sexual orientation, a criterion which has no bearing on his ability to perform his job. That plaintiff has performed in exemplary fashion for eleven years clearly negates defendants' assertion that homosexuality is incompatible with being a good Marine. plaintiff did not become any less of a Marine on the day he announced his sexual orientation. C. Relatively Less Injury to Defendants.
Granting a preliminary injunction keeping plaintiff on active duty and maintaining his eligibility for the VSI/SSB program pending the final outcome of this case will result in no discernible injury to defendants. Plaintiff served in the Marine Corps for eleven years with distinction. This Court sees no injury to defendants by having the services of a "model Marine" for the duration of this litigation. What is more, plaintiff is ready and willing to leave the Marine Corps voluntarily if he is permitted to participate in the VSI/SSB program. This Court is at a complete loss why the Marine Corps would not accede to this reasonable request particularly since in every respect plaintiff is entitled to be placed in the program. Indeed, prior to acknowledgement of his homosexuality he had been accepted into the VSI/SSB program. It seems to this Court that the defendants want to go beyond merely enforcing their policy on homosexuality and actually want to punish plaintiff because of his statements that he is a homosexual. This the law does not allow.
D. Injunction Would Promote the Public Interest.
The public's interest in the efficient operation of the armed forces is clear. The Court does not believe that banning homosexuals from the armed forces on the basis of status alone will adversely affect the military's mission. The issue in this case is status alone. Conduct is not involved and there is nothing in this Court's decision which would prevent the armed forces from enforcing conduct codes.
The same arguments made today concerning homosexuals were made in the past when efforts were first made to knock down sexual and racial barriers in the armed forces. This nation was told that we could not have effective armed services unless we maintained racially and sexually segregated armed forces. We now know such statements were grossly in error. Many say this same misconception applies to the homosexual issue. The ability of homosexuals to perform in all phases of the workplace, including the armed services, has been proven beyond any question. There is simply no correlation between an individual's sexual orientation and his or her intellectual or physical capacity to perform in the workplace.
Indeed, in considering the public interest, it might well be argued that to deprive our armed forces of the intellectual and physical prowess of some extraordinarily talented individuals strictly because of their sexual orientation would be doing a great disservice to this nation. If the Court accepts defendants' position, it would create an incongruity in that the policy would preclude homosexuals from serving in the armed forces but would not extend to the Commander-in-Chief.
For the above reasons the Court enters a preliminary injunction barring defendants from taking any adverse action against plaintiff solely on the basis of his status as a homosexual. So long as plaintiff discharges his duties and responsibilities as a United States Marine Corps sergeant he shall be allowed to remain on active duty pending this Court's determination on the merits.
Because the Court finds that plaintiff has shown a likelihood of success on the merits and the balancing of the equities favors plaintiff, plaintiff's Application for Preliminary Injunction will be granted.
UNITED STATES DISTRICT JUDGE
ORDER - November 10, 1993, Filed
On the basis of the findings and reasons stated in the accompanying Memorandum Opinion, it is this 10 day of November, 1993 hereby
ORDERED: that for the duration of this litigation defendants, Les Aspin, Secretary of Defense, John Dalton, Secretary of the Navy, and General Carl Mundy, Jr., Commandant of the Marine Corps, their officers, agents, servants, employees, and attorneys and those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise, are enjoined from taking any adverse action against plaintiff, separating plaintiff from active duty, placing him on standby reserve, discharging him from the Marine Corps or denying him participation in the VSI/SSB program on the sole basis of his sexual orientation.
UNITED STATES DISTRICT JUDGE