status, Plaintiff has continued to demonstrate the qualities which resulted in his being named "Marine of the Year." In March of 1994, he was awarded a Certificate of Good Conduct and as recently as March of 1995, he was "highly recommended" for a promotion. His superior officer, Lieutenant Toomey, concluded that Sgt. Elzie had "demonstrated superior motivation, dedication to duty and outstanding professional and military performance."
This case now comes before the Court on cross-motions for summary judgment. Despite his exemplary record, the military remains committed to denying Sgt. Elzie benefits under the VSI/SSB program and continues to seek Sgt. Elzie's discharge. The irony of the current posture of this litigation is not lost on this Court. Plaintiff was ready and willing to leave the military voluntarily by April 1993 as long as he was permitted to participate in the VSI/SSB program. He had already been accepted into the program and had met the eligibility criteria.
The military has prolonged Sgt. Elzie's stay in the Marine Corps due to its need to enforce its discharge policy. It would appear that the military is not simply seeking to discharge Sgt. Elzie due to the purported threat to military morale and discipline, but is also seeking to punish Sgt. Elzie by denying him all benefits that a heterosexual, who has served his country in a far less distinguished fashion, is entitled to receive.
The military discharged Sgt. Elzie and denied him the benefits of the VSI/SSB program under the military's "old" policy regarding homosexuals enumerated in Department of Defense Directive 1332.14 (January 28, 1992), published at 32 C.F.R. pt. 41, app. A (1992) (superseded). And in this lawsuit, Plaintiff challenges the legality and constitutionality of that "old" policy.
The old policy provides for the separation of an enlisted person who has been found to have "engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts," or who has "stated that he or she is a homosexual . . . unless there is a further finding that the member is not a homosexual." Id. at 1332.14.H.1.c. The term homosexual is defined as "a person, regardless of sex, who engages in, desires to engage in, or intends to engage in homosexual acts." Id. at 1332.14.H.1.b.(1). In conformity with the Department of Defense Directive, the Marine Corps Separation and Retirement Manual ("MarCorSepMan") provides that discharge proceedings are to be instituted where there is "probable cause" that a Marine has "engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts," or has "admitted to being a homosexual or bisexual, unless there is a further finding that the member is not homosexual or bisexual." MarCorSepMan, P 6207.3(b).
Since the time that Sgt. Elzie was first discharged by the Marine Corps, President Clinton signed into law a new policy concerning homosexuals in the military, popularly labelled as the "Don't Ask, Don't Tell" policy. 10 U.S.C. § 654 (1994).
Under the new policy, a service member who has admitted to being a homosexual has the opportunity to rebut the presumption that he "is a person who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts." Id. at § 654(b).
As such, the new policy is more favorable to homosexuals than the old policy.
This case vividly underscores the folly (as opposed to unconstitutionality or illegality, which the Court does not reach at this juncture) of a policy that systematically excludes a whole class of persons who have served this country proudly and in the highest tradition of excellence. Sgt. Elzie is a Marine to whom the military should be extending appreciation rather than seeking to discharge without benefits.
Given Sgt. Elzie's superior record of achievement while in the Marine Corps, he certainly deserves to receive the benefits of the new policy. Fairness demands that the new policy be applied to Sgt. Elzie in all respects. Accordingly, the Court orders that the case be remanded for proceedings to be conducted under the new policy.
Having so ruled, this Court feels compelled to note that the military's policy still raises serious constitutional questions in the context of this case. The military contends that the D.C. Circuit's ruling in Steffan v. Perry, 309 U.S. App. D.C. 281, 41 F.3d 677 (D.C. Cir. 1994) (en banc) is controlling precedent that the old policy does not run afoul of the Constitution. The facts in Steffan, however, differ from the facts in this case. In Steffan, the plaintiff was separated from the Naval Academy during his senior year after he admitted that he was a homosexual. Steffan brought suit claiming that his equal protection rights under the Fifth Amendment had been violated and sought an order "enjoining Defendants from prohibiting [him] from graduating and receiving his diploma from the Academy" and "from denying [him] commission in the United States Navy." Steffan at 684. Steffan sought to maintain his status in the military and challenged only the discharge policy.
Sgt. Elzie does more than challenge the discharge policy on equal protection grounds. He also challenges his removal from the VSI/SSB program on equal protection grounds and seeks an order declaring his "removal from the VSI/SSB program null and void" and an order restoring him "to full participation in the VSI/SSB program with all the benefits and incidents thereof." While this Court is constrained by the Steffan Court's decision that the "discharge policy" survives equal protection scrutiny, there is no similar constraint with respect to the "denial of retirement benefits" policy. The Steffan Court simply did not reach that issue.
Here, there is no dispute that Sgt. Elzie had met all the eligibility requirements for enrollment in the retirement program based on his distinguished service in the Marine Corps since 1982.
He was ready and willing to leave the military voluntarily once he received these benefits. There is also no dispute that he would have received these benefits had he not admitted to being a homosexual.
It is difficult to conceive how the military's stated rationale for discharging professed homosexuals applies to a military policy which prevents such homosexuals from receiving retirement benefits which they have earned. Sgt. Elzie's receipt of retirement benefits hardly appears to have an adverse impact on military morale and discipline. The purported justifications undergirding the discriminatory treatment of homosexual active service members, which this Circuit has accepted in Steffan, seem wholly inapplicable to homosexual retired service members. To arbitrarily deprive a service member of retirement benefits that he has earned merely on the basis that the member is a homosexual raises serious equal protection concerns which have not yet been addressed by this Circuit.
Moreover, the constitutionality of both the "discharge" and "denial of retirement benefits" policy under the free speech clause of the First Amendment is far from resolved in the D.C. Circuit. While the D.C. Circuit held in Steffan that the old "discharge" policy does not violate the equal protection component of the Fifth Amendment's due process clause, the Court of Appeals did not specifically address the First Amendment. It could certainly be argued that heightened scrutiny is warranted under the First Amendment, rather than the rational basis equal protection review on the theory that the policy represents "viewpoint discrimination."
Subsequent to the Court of Appeals decision in Steffan, the Supreme Court made clear in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 132 L. Ed. 2d 487, 63 U.S.L.W. 4625, 115 S. Ct. 2338 (1995) that the statements of self-identification of sexual orientation may contain a quite specific message. "A contingent marching behind the organization's banner [proclaiming the members' sexual orientations] would at least bear witness to the fact that some Irish are gay, lesbian or bisexual, and the presence of the organized marchers would suggest their view that people of their sexual orientations have as much claim to unqualified social acceptance as heterosexuals . . ." The Hurley Court recognized that the statement "I am homosexual" expresses a viewpoint. Both the old and new military policy treat the statements of homosexual identification and statements of heterosexual identification differently, and both might constitute viewpoint discrimination. Even with the restricted First Amendment protections in the military, see, e.g., Brown v. Glines, 444 U.S. 348, 62 L. Ed. 2d 540, 100 S. Ct. 594 (1980), viewpoint discrimination in the military might be subject to strict scrutiny. Cf. R.A.V v. City of St. Paul, 505 U.S. 377, 112 S. Ct. 2538, 120 L. Ed. 2d 305 (1992) (viewpoint discrimination impermissible even within the context of fighting words, which the government may ordinarily prohibit for any reason.)
Based on the foregoing, the case will be remanded with instructions that Plaintiff's status in the Marine Corps and his eligibility for the VSI/SSB program be reviewed under the military's current policy as codified at 10 U.S.C. § 654.
An appropriate order accompanies this memorandum opinion.
United States District Judge
This matter comes before the Court on cross-motions for summary judgment. The Court hereby ORDERS that the case be remanded with instructions that Plaintiff's status in the Marine Corps and eligibility for the VSI/SSB program be reviewed under the military's current policy as codified at 10 U.S.C. § 654.
United States District Judge