Sergeant Perry J. WATKINS, Plaintiff-Appellant, v. UNITED STATES ARMY, et al., Defendants-Appellees.
No. 85-4006.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted April 22, 1987.
Decided Feb. 10, 1988.
claimed that his sexual orientation or behavior interfered in any way with military functions.¹ To the contrary, an Army review board found "there is no evidence suggesting that his behavior has had either a degrading effect upon unit performance, morale or discipline, or upon his own job performance." ER at 26c.
In 1981 the Army promulgated new regulations which mandated the disqualification of all homosexuals from the Army
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James E. Lobsenz, Wolfe & Cullen, Seattle, Wash., for plaintiff-appellant. E. Roy Hawkens, Asst. U.S. Atty., Civil Div., Washington, D.C., for defendants-appellees. Appeal from the United States District Court for the Western District of Washington. Before CANBY, NORRIS and REINHARDT, Circuit Judges. NORRIS, Circuit Judge: In August 1967, at the age of 19, Perry Watkins enlisted in the United States Army. In filling out the Army's pre-induction medical form, he candidly marked "yes" in response to a question whether he had homosexual tendencies. The Army nonetheless considered Watkins "qualified for admission" and inducted him into its ranks. Watkins served fourteen years in the Army, and became, in the words of his commanding officer, "one of our most respected and trusted soldiers." Excerpt of Record [ER] at 26d. Even though Watkins' homosexuality was always common knowledge, Watkins v. United States Army, 551 F.Supp. 212, 216 (W.D.Wash.1982), the Army has never 1. In this opinion we use the term "sexual orientation" to refer to the orientation of an individual's sexual preference, not to his actual sexual conduct. Individuals whose sexual orientation creates in them a desire for sexual relationships with persons of the opposite sex have a heterosexual orientation. Individuals whose sexual orientation creates in them a desire for sexual relationships with persons of the same sex have a homosexual orientation. In contrast, we use the terms "homosexual conduct" and "homosexual acts" to refer to sexwithout regard to the length or quality of their military service. Pursuant to these new regulations, the Army notified Watkins that he would be discharged and denied reenlistment because of his homosexuality. In this federal court action, Watkins challenges the Army's actions and new regulations on various statutory and constitutional grounds. I During Watkins' initial three-year tour of duty, he served in the United States and Korea as a chaplain's assistant, personnel specialist, and company clerk. Even before this tour began, Watkins indicated on his pre-induction medical history form that he had "homosexual tendencies." A year later, in 1968, Watkins told an Army criminal investigation agent that he had been gay since the age of 13 and had engaged in unspecified homosexual acts with two other servicemen. Whether these acts involved sodomy or some other form of sexual conduct is not evident from the record. Although the Army investigated Watkins in 1968 for allegedly committing sodomy, a criminal offense for a soldier, the investigation was dropped for lack of evidence. Despite repeated investigations of Watkins' ual activity between two members of the same sex whether their orientations are homosexual, heterosexual, or bisexual, and we use the terms "heterosexual conduct" and "heterosexual acts" to refer to sexual activity between two members of the opposite sex whether their orientations are homosexual, heterosexual, or bisexual. Throughout this opinion, the terms "gay" and "homosexual" will be used synonymously to denote persons of homosexual orientation.
sexual behavior, his 1968 statement that he engaged in unspecified homosexual acts with two other soldiers is the only evidence before this court of Watkins' actual sexual conduct. See infra at 1430-31 & n. 2.
When his first enlistment expired in 1970, Watkins received an honorable discharge. In 1971 he reenlisted for a second three-year term, at which time the Army judged him to be "eligible for reentry on active duty." In 1972 the Army again investigated Watkins for allegedly committing sodomy and again terminated the investigation for insufficient evidence. In 1974 the Army accepted Watkins' application for a six-year reenlistment.
In 1975 the Army convened a board of officers to determine whether Watkins should be discharged because of his homosexual tendencies. On this occasion his commanding officer, Captain Bast, testified that Watkins was "the best clerk I have known," that he did "a fantastic job'excellent," and that Watkins' homosexuality did not affect the company. A sergeant testified that Watkins' homosexuality was wellknown but caused no problems and generated no complaints from other soldiers. The four officers on the board unanimously found that "Watkins is suitable for retention in the military service" and stated, "In view of the findings, the Board recommends that SP5 Perry J. Watkins be retained in the military service because there is no evidence suggesting that his behavior has had either a degrading effect upon unit performance, morale or discipline, or upon his own job performance. SP5 Watkins is suited for duty in administrative positions and progression through Specialist rating." ER at 26c.
In November 1977, the United States Army Artillery Group (the USAAG) granted Watkins a security clearance for information classified as "Secret." His application for a position in the Nuclear Surety Personnel Reliability Program (the PRP), however, was initially rejected because his records'specifically, his own admissions' showed that he had homosexual tendencies. After this initial rejection, Watkins' commanding officer in the USAAG, Captain Pastain, requested that Watkins be requalified for the position. Captain Pastain stated, "From daily personal contacts I can attest to the outstanding professional attitude, integrity, and suitability for assignment within the PRP, of SP5 Watkins. In the 6V2 months he has been assigned to this unit SP5 Watkins has had no problems what-so-ever in dealing with other assigned members. He has, in fact, become one of our most respected and trusted soldiers, both by his superiors and his subordinates." ER at 26d. An examining Army physician concluded that Watkins' homosexuality appeared to cause no problem in his work, and the decision to deny Watkins a position in the Nuclear Surety Personnel Reliability Program was reversed.
Watkins worked under a security clearance without incident until he again stated, in an interview on March 15, 1979, that he was homosexual. This prompted yet another Army investigation which, in July 1980, culminated in the revocation of Watkins' security clearance. As Watkins' notification of revocation makes clear, the Army based this revocation on Watkins' 1979 admission of homosexuality, on medical records containing Watkins' 1968 admission of homosexual conduct, and on his history of performing (with the permission of his commanding officer) as a female impersonator in various revues. The Army did not rely on any evidence of homosexual conduct other than Watkins' 1968 admission that he had engaged in unspecified homosexual acts with two other soldiers.
In October 1979, the Army accepted Watkins' application for another three-year reenlistment.
In 1981 the Army promulgated Army Regulation, (AR) 635-200, chpt. 15, which mandated the discharge of all homosexuals regardless of merit. Pursuant to this regulation, a new Army board convened to consider discharging Watkins. Although this board explicitly rejected the evidence before it that Watkins had engaged in homosexual conduct after 1968,Footnote 2 the board rec-
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2. During these discharge proceedings the Army tried to prove that Watkins had engaged in
ommended that Watkins be separated from the service "because he has stated that he is a homosexual." Major Genera] Elton, the discharge authority overseeing the board, approved this finding and recommendation and directed that Watkins be discharged. In addition, Major General Elton, on his own initiative, made an additional finding that Watkins had engaged in homosexual acts with other soldiers. The district court ruled both that Major General Elton lacked the regulatory authority to make supplemental findings, id. at 259, and that the evidence presented at the discharge hearing could not support a specific finding that Watkins had engaged in any homosexual conduct except those unspecified acts to which Watkins admitted in 1968. Id. at 257. The Army has not contested either of these rulings and, on appeal, relies solely on Watkins' 1968 statement as evidence of homosexual conduct. In May 1982, after the Army board voted in favor of Watkins' discharge, but before the discharge actually issued, the district court enjoined the Army from discharging Watkins on the basis of his statements admitting his homosexuality. Watkins v. United States Army, 541 F.Supp. 249, 259 (W.D.Wash.1982).Footnote 3 The district court reasoned that the discharge proceedings were barred by the Army's regulation against double jeopardy, AR 635-200, 11 l-19b, because they essentially repeated the discharge proceedings of 1975. Footnote 4
During oral argument before the district court, counsel for the Army declared that if the Army were enjoined from discharging Watkins, it would deny Watkins reenlistment, pursuant to AR 601-280, H2-21(c), when his current tour of duty expired in October 1982. Footnote 5
This reenlistment regulation, which was promulgated in 1981 along with the discharge regulation AR 635-200, chpt. 15, makes homosexuality a nonwaivable disqualification for reenlistment. The district court nonetheless enjoined Watkins' discharge, and the Army fulfilled its promise by rejecting Watkins' reenlistment application "[b]ecause of self admitted homosexuality as well as homosexual acts." Footnote 6
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homosexual conduct by introducing the testimony of one soldier that a black staff sergeant had "squeezed his leg" and the testimony of another soldier that Watkins had "asked him if he'd like to move into [Watkins'] apartment" and that Watkins used to "stare at" him. Watkins v. United States Army, 541 F.Supp. 249, 257 (W.D. Wash.1982). The first soldier, however, was unable to identify Watkins in a line-up as the black sergeant who had squeezed his leg (there were thousands of black sergeants at the base). Id. The second soldier testified that he was not sure Watkins had been making a pass at him, that he was prejudiced against blacks and against homosexuals, that he had once had a bad experience with a homosexual, and that he had once been disciplined by a board of which Watkins was a member. Id. The Army board concluded that this evidence did not support a finding that Watkins had engaged in homosexual acts with these two soldiers, and the district court ruled that any finding to the contrary would have been arbitrary and unsupported by the evidence. Id.
3. Watkins had originally brought suit in August 1981 to have his security clearance reinstated, but after receiving notice that discharge proceedings would be convened, he amended his complaint in October to seek an injunction against his discharge. The district court declined to reach the issue whether the Army could revoke Watkins' security clearance, reasoning that the issue was not yet ripe because Watkins had an administrative appeal pending. See 541 F.Supp. at 259; see also 551 F.Supp. at 223. Watkins' security clearance dispute is thus not before us on this appeal.
4. The district court held that the evidence could not support a finding that Watkins engaged in homosexual conduct subsequent to the 1975 discharge proceedings and that the Army's double jeopardy provision barred the Army from basing Watkins' discharge on statements that merely reiterated what Watkins had stated in the 1975 discharge proceedings'that he was homosexual. See 541 F.Supp. at 257-58.
5. At that time, the regulation appeared at U 2-24(c). However, for convenience, our opinion will refer to all Army regulations by the paragraph numbers used in the Army's September 15, 1986, update, unless a different date is explicitly noted.
6. Again, we emphasize that Watkins' 1968 statement admitting unspecified homosexual acts is the only evidence before this court supporting Captain Scott's finding of homosexual conduct. See supra at 1430-31 & n. 2. That the Army had no new evidence of homosexual conduct is evident from the Army's interrogation of Watkins at the time that he applied for reenlistment. 551
On October 5, 1982, the district court enjoined the Army from refusing to reenlist Watkins because of his admitted homosexuality, holding that the Army was equitably estopped from relying on AR 601280, H 2-21(c). Watkins v. United States Army, 551 F.Supp. 212, 223 (W.D.Wash. 1982). Footnote 7
The Army reenlisted Watkins for a six-year term on November 1, 1982, with the proviso that the reenlistment would be voided if the district court's injunction were not upheld on appeal.
While the Army's appeal of the district court injunction was pending, the Army rated Watkins' performance and professionalism. He received 85 out of 85 possible points. See Appendix to Appellant's Brief; Court Record 164, Appendix C. His ratings included perfect scores for "Earns respect," "Integrity," "Loyalty," "Moral Courage," "Self-discipline," "Military Appearance," "Demonstrates Initiative," "Performs under pressure," "Attains results," "Displays sound judgment," "Communicates effectively," "Develops subordinates," "Demonstrates technical skills," and "Physical fitness." Id. His military evaluators unanimously recommended that he be promoted ahead of his peers. Id. The Army's written evaluation of Watkins' performance and potential stated: SSG Watkins is without exception, one of the finest Personnel Action Center Supervisors I have encountered.
Through his diligent efforts, the Battalion Personnel Action Center achieved a near perfect processing rate for SIPDERS transactions. During this training period, SSG Watkins has been totally reliable and a wealth of knowledge. He requires no supervision, and with his "can do" attitude, always exceeds the requirements and demands placed upon him. I would gladly welcome another opportunity to serve with him, and firmly believe that he will be an asset to any unit to which he is assigned.
SSG Watkins should be selected to attend ANCOC and placed in a Platoon Sergeant position. [Rater's Evaluation of Watkins' performance and potential.] SSG Watkins' duty performance has been outstanding in every regard. His section continues to set the standard within the Brigade for submission of aecurate, timely personnel and financial transactions. Keeping abreast of everchanging personnel regulations and directives, SSG Watkins has provided sound advice to the commander as well as to the soldiers within the command. His suggestion to separate S-l and Personnel Action Center functions and to colocate the Personnel Action Center with the Company Orderly Rooms was adopted and immediately resulted in improved service by both offices. SSG Watkins' positive influence has been felt throughout the Battalion and will be sorely missed.
SSG Watkins' potential is unlimited. He has consistently demonstrated the capacity to manage numerous complex responsibilities concurrently. He is qualified for promotion now and should be selected for attendance at ANCOES at the earliest opportunity. [Indorser's Evaluation of Watkins' performance and potential.] Id. On appeal, we reversed the district court's injunction. We reasoned that the equity powers of the federal courts could
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F.Supp. at 225-32. During extraordinarily aggressive questioning aimed at eliciting a new confession of homosexual conduct from Watkins, the Army's interrogating officer admitted that he had no new basis for suspecting that Watkins had engaged in additional homosexual acts. Id. at 227. Captain Scott, who made the above findings, also found that Watkins had refused to answer questions concerning his homosexuality and homosexual acts, but the district court ruled that this finding was totally unsupported by the evidence. See 551 F.Supp. at 217. The Army has not contested this ruling of the district court and does not argue on appeal that Watkins refused to answer questions.
7. This case does not involve an asserted right to reenlist or a claim that courts can exercise general review of the Army's reenlistment decisions. Watkins does not seek a judicial determination on the merits of his reenlistment application. He merely seeks a judicial determination that the Army must consider his reenlistment application on its merits without regard to his homosexuality. See 551 F.Supp. at 218.
not be exercised to order military officials to violate their own regulations absent a determination that the regulations were repugnant to the Constitution or to the military's statutory authority. Watkins v. United States Army, 
721 F.2d 687, 690-91 (9th Cir.1983) [hereinafter Watkins /]. On remand, the district court held that the Army's regulations were not repugnant to the Constitution or to statutory authority and accordingly denied Watkins' motion for summary judgment and granted summary judgment in favor of the Army. Watkins appealed, invoking our jurisdiction under 28 U.S.C. § 1291.
Watkins argues on appeal that the Army's actions in discharging him and denying him reenlistment violate the First Amendment and constitute due process entrapment in violation of the Fifth Amendment. He also argues that the Army's discharge and reenlistment regulations are arbitrary and capricious under the Administrative Procedure Act, 5 U.S.C. 706(2)(A) and deny him equal protection of the laws in violation of the Fifth Amendment. Notably, with the exception of his due process entrapment claim, Watkins makes no procedural or substantive due process argument. Specifically, he does not rely upon an argument that the constitutionally protected right to privacy extends to homosexual acts.
II Almost all of Watkins' arguments can be rejected without reaching their merits. Watkins' argument that denying him reenlistment was arbitrary and capricious under the Administrative Procedure Act, 5 U.S.C. § 706(2)(A) (1982), fails because Watkins does not claim that the regulations on homosexuality themselves violate the Administrative Procedure Act. See Watkins I, 721 F.2d at 690-91. Similar reasons lead us to reject two additional claims raised by Watkins: his "petition clause" argument that the Army refused to reenlist Watkins in retaliation for his suit over revocation of his security clearance and his "due process entrapment" claim that the Army had induced him to believe that his homosexuality would not disqualify him from a career in the Army. Whether or not the Army's actions, in the absence of the regulations, would have constituted unconstitutional retaliation or due process entrapment, to enjoin the Army from denying Watkins reenlistment on the basis of his homosexuality would be in direct contravention of its regulations. This we cannot do unless the regulations themselves are unconstitutional. Id. Since Watkins does not allege that the regulations, either on their face or as applied, violate the petition clause or constitute due process entrapment, we have no authority to issue the requested relief on those grounds.
Watkins' argument that the Army regulations violate the First Amendment by penalizing his statements regarding his homosexuality is somewhat more troublesome. See benShalom v. Secretary of the Army, 489 F.Supp. 964, 973-75 (E.D.Wis. 1980) (holding that the Army violated the First Amendment by discharging soldier solely because she stated she was a homosexual when there was no evidence of homosexual conduct). In contrast to benShalom, however, the determination of Watkins' homosexuality'which absolutely disqualified him from service under the regulations'was based both on his various statements admitting his homosexual orientation and on his 1968 statement that he had engaged in homosexual acts. The regulations clearly mandate that homosexual acts give rise to a disqualifying presumption of homosexuality, though that presumption can be rebutted by proof of actual nonhomosexual orientation. See infra at 1434-38. In other words, under the regulations, any homosexual who engages in homosexual acts is automatically disqualified from service. Since Watkins admitted in 1968 that he had engaged in homosexual acts, he was presumed under the regulations to have a homosexual orientation, and could not rebut that presumption because his orientation was, in fact, homosexual. Thus, the regulations mandated both Watkins' discharge and the denial of his reenlistment regardless of whether he had ever stated that he had homosexual tendencies. Consequently,
Watkins could obtain no relief from a judicial determination that his statements declaring his homosexual orientation were protected by the First Amendment unless he could also show that the portions of the Army's regulations that ban homosexuals who engage in homosexual acts are invalid. Footnote 8
See Matthews v. Marsh, 755 F.2d 182, 184 (1st Cir.1985) (in light of evidence that plaintiff engaged in homosexual acts, a ruling as to whether her discharge from the Army for statements about her homosexuality violated the First Amendment would be an advisory opinion).
We are left, then, With Watkins' claim that the Army's regulations deny him equal protection of the laws in violation of the Fifth Amendment. Footnote 9
Specifically, Watkins argues that the Army's regulations constitute an invidious discrimination based on sexual orientation. To address this claim we must engage in a three-stage inquiry. First, we must decide whether the regulations in fact discriminate on the basis of sexual orientation. Second, we must decide which level of judicial scrutiny applies by asking whether discrimination based on sexual orientation burdens a suspect or quasi-suspect class,¹* which would make it subject, respectively, to strict or intermediate scrutiny. See City of Cleburne v. Clebume Living Center, 473 U.S.
432, 439-41, 105 S.Ct. 3249, 3254-55, 87 L.Ed.2d 313 (1985). If the discrimination burdens no such class, it is subject to ordinary rationality review. Id. Finally, we must decide whether the challenged regulations survive the applicable level of scrutiny by deciding whether, under strict scruti^ ny, the legal classification is necessary to serve a compelling governmental interest; whether, under intermediate scrutiny, the classification is substantially related to an important governmental interest; or whether, under rationality review, the classification is rationally related to a legitimate governmental interest. See id.
Ill
We now turn to the threshold question raised by Watkins' equal protection claim: Do the Army's regulations discriminate based on sexual orientation? The portion of the Army's reenlistment regulation that bars homosexuals from reenlisting states in full: Applicants to whom the disqualifications below apply are ineligible for RA [Regular Army] reenlistment at any time and
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8. Aft. Healthy City School District v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.EeUd 471 (1977), is not to the contrary. In Mt. Healthy, the Supreme Court held that governmental action can violate the First Amendment when it is taken for mixed motives, one of which is to penalize an individual for exercising his right to freedom of speech. See id. at 284-87. The Supreme Court adopted a "but for" causation test: Once a plaintiff demonstrates that his conduct is constitutionally protected and a "substantial factor" in the government's adverse decision, the burden of proof shifts to the government to show that it would have reached the same decision in the absence of the protected conduct. Id. at 287. Mt. Healthy, however, concerned a discretionary decision not to grant tenure to a teacher who had engaged in constitutionally protected speech. This case, in contrast, involves a riondiscretionary regulation that absolutely disqualified Watkins from Army service because he was a homosexual who admitted to engaging in homosexual acts. See AR 635-200, fl 15-3; AR 601-280, f 2-21(c). The government's burden under Mt. Healthy to show that it would have reached the same decision in the absence of the protected speech is therefore met by the dictates of the regulations themselves.
9. The equal protection component of the Fifth Amendment imposes precisely the same constitutional requirements on the federal government as the equal protection clause of the Fourteenth Amendment imposes on state governments. See, e.g., "Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n. 2, 95 S.Ct. 1225, 1228 n. 2, 43 L.Ed.2d 514 (1975).
10. Discriminations that burden some despised or politically powerless groups are so likely to reflect antipathy against those groups that the classifications are inherently suspect and must be strictly scrutinized. See, e.g., Plyler v. Doe, 457 U.S. 202, 216 n. 14, 102 S.Ct. 2382, 2394 n. 14, 72 L.Ed.2d 786 (1982). Such groups are generally termed "suspect classes." The Supreme Court has identified other groups whose history of past discrimination entitles them to intermediate scrutiny protection under equal protection doctrine. Such groups are termed "quasi suspect" classes. See generally, Nowak, Rotunda & Young, Constitutional Law, Ch. 16, § 1, at 593 (2d ed. 1983).
requests for waiver or exception to policy will not be submitted ___ c. Persons of questionable moral character and a history of antisocial behavior, sexual perversion or homosexuality. A person who has committed homosexual acts or is an admitted homosexual but as to whom there is no evidence that they have engaged in homosexual acts either before or during military service is included. (See note 1) ___ k. Persons being discharged under AR 635-200 for homosexuality.... Note: Homosexual acts consist of bodily contact between persons of the same sex, actively undertaken or passively permitted, with the intent of obtaining or giving sexual satisfaction, or any proposal, solicitation, or attempt to perform such an act. Persons who have been involved in homosexual acts in an apparently isolated episode, stemming solely from immaturity, curiousity [sic], or intoxication, and in the absence of other evidence that the person is a homosexual, normally will not be excluded from reenlistment. A homosexual is a person, regardless of sex, who desires bodily contact between persons of the same sex, actively undertaken or passively permitted, with the intent to obtain or give sexual gratification. Any official, private, or public profession of homosexuality, may be considered in determining whether a person is an admitted homosexual.
AR 601-280, 11 2-21. Although worded in somewhat greater detail, the Army's regulation mandating the separation of homosexual soldiers from service (discharge), AR 635-200, is essentially the same in substance. Footnote 11
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11. AR 635-200 provides: 15-2 Definitions ... a. Homosexual means a person, regardless of sex, who engages in, desires to engage in, or intends to engage in homosexual acts. b. Bisexual means a person who engages in, desires to engage in, or intends to engage in homosexual and heterosexual acts. c. A homosexual act means bodily contact, actively undertaken or passively permitted, between soldiers of the same sex for sexual satisfaction. 15-3 Criteria The basis for separation may include preservice, prior service, or current service conduct or statements. A soldier will be separated per this chapter if one or more of the following approved findings is made: a. The soldier has engaged in, attempted to engage in, or solicited another to engage in a homosexual act unless there are further approved findings that' (1) Such conduct is a departure from the soldier's usual and customary behavior; and (2) Such conduct is unlikely to recur because it is shown, for example, that the act occurred because of immaturity, intoxication, coercion, or a desire to avoid military service; and (3) Such conduct was not accomplished by use of force, coercion, or intimidation by the soldier during a period of military service; and (4) Under the particular circumstances of the case, the soldier's continued presence in the Army is consistent with the interest of the Army in proper discipline, good order, and morale; and (5) The soldier does not desire to engage in or intend to engage in homosexual acts. Note: To warrant retention of a soldier after finding that he or she engaged in, attempted to engage in, or solicited another to engage in a homosexual act, the board's findings must specifically include all five findings listed in a(l) through (5) above. In making these additional findings, boards should reasonably consider the evidence presented. For example, engagement in homosexual acts over a long period of time could hardly be considered "a departure from the soldier's usual and customary behavior." The intent of this policy is to permit retention only of nonhomosexual soldiers who, because of extenuating circumstances (as demonstrated by findings required by para 15-3a(l) through (5)) engaged in, attempted to engage in, or solicited a homosexual act. b. The soldier has stated that he or she is a homosexual or bisexual, unless there is a further finding that the soldier is not a homosexual or bisexual. c. The soldier has married or attempted to marry a person known to be of the same biological sex (as evidenced by the external anatomy of the person involved) unless there are further findings that the soldier is not a homosexual or bisexual (such as, where the purpose of the marriage or attempt to marry was the avoidance or termination of military service). AR 635-200, fifi 15-2 & 15-3 (emphasis in original). Although it is the Army's refusal to reenlist Watktns because of his homosexuality that is directly at issue, Watkins' challenge to the Army's regulation on discharge is relevant to this appeal for two reasons: (1) persons being validly discharged for homosexuality at the time
We conclude that these regulations, on their face, discriminate against homosexuals on the basis of their sexual orientation. Under the regulations any homosexual act or statement of homosexuality gives rise to a presumption of homosexual orientation, and anyone who fails to rebut that presumption is conclusively barred from Army service. In other words, the regulations target homosexual orientation itself. The homosexual acts and statements are merely relevant, and rebuttable, indicators of that orientation.
Under the Army's regulations, "homosexuality," not sexual conduct, is the operative trait for disqualification. AR 601-280, 112-21(c); see also AR 635-200, H 15-l(a) (articulating the same goal). For example, the regulations ban homosexuals who have done nothing more than acknowledge their homosexual orientation even in the absence of evidence that the persons ever engaged in any form of sexual conduct. The reenlistment regulation disqualifies any "admitted homosexual"'a status that can be proved by "[a]ny official, private, or public profession of homosexuality" even if "there is no evidence that they have engaged in homosexual acts either before or during military service." AR 601-280, H2-21(c) & note; see also AR 635-200, 1115-3(b). Since the regulations define a "homosexual" as "a person, regardless of sex, who desires bodily contact between persons of the same sex, actively undertaken or passively permitted, with the intent to obtain or give sexual gratification," a person can be deemed homosexual under the regulations without ever engaging in a homosexual act. 601-280, U 2-21(c) & note (emphasis added); see also A.R. 635-200, 15-2(a) (same desire sufficient to make one homosexual). Thus, no matter what statements a person has made, the ultimate evidentiary issue is whether he or she has a homosexual orientation. Under the reenlistment regulation, persons are disqualified from reenlisting only if, based on any "profession of homosexuality" they have made, they are found to have a homosexual orientation. AR 601-280, 112-21(c) & note. Similarly, under the discharge regulation a soldier must be discharged if "[t]he soldier has stated that he or she is a homosexual or bisexual, unless there is a further finding that the soldier is not a homosexual or bisexual." AR 635-200, 1115-3(b) (emphasis added). In short, the regulations do not penalize all statements of sexual desire, or even only statements of homosexual desire; they penalize only homosexuals who declare their homosexual orientation.
True, a "person who has committed homosexual acts" is also presumptively "included" under the reenlistment regulation as a person excludable for "homosexuality." AR 601-280, H2-21(c); see also AR 635-200, 1115-3(a). But it is clear that this provision is merely designed to round out the possible evidentiary grounds for inferring a homosexual orientation. The regulations define "homosexual acts" to encompass any "bodily contact between persons of the same sex, actively undertaken or passively permitted, with the intent of obtaining or giving sexual satisfaction, or any proposal, solicitation, or attempt to perform such an act." AR 601-280, Tf 2-21(c) & note; see also AR 635-200, 1T1F 15-2(c) & 15-3(a) (stating the same in slightly different order). Thus, the regulations barring homosexuals from the Army cover any form of bodily contact between persons of the same sex that gives sexual satisfaction'from oral and anal intercourse to holding hands, kissing, caressing and any number of other sexual acts. Indeed, in this case the Army tried to prove at Watkins' discharge proceedings that he had committed a homosexual act described as squeezing the knee of a male soldier, but failed to prove it was Watkins who did the alleged knee-squeezing. See supra at 1430-31 & n. 2. Moreover, even non-sexual conduct can trigger a presumption of homosexuality: The regulations provide for the discharge of soldiers who
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of reenlistment, as Watkins was, cannot reenlist under 601-280 fl2-21(k); (2) enjoining the Army to consider Watkins' reenlistment application without regard to his homosexuality will provide no effective relief if he would be subject to mandatory discharge because of homosexuality as soon as he was reenlisted. We thus consider Watkins' challenge to the constitutionality of the Army's discharge regulation as well as its reenlistment regulation.
have "married or attempted to marry a person known to be of the same sex ... unless there are further findings that the soldier is not a homosexual or bisexual." AR 635-200, 1115-3(c) (emphasis added).
With all the acts and statements that can serve as presumptive evidence of homosexuality under the regulations, it is hard to think of any grounds for inferring homosexual orientation that are not included. Footnote 12
The fact remains, however, that homosexual orientation, not homosexual conduct, is plainly the object of the Army's regulations.
Moreover, under the regulations a person is not automatically disqualified from Army service just because he or she committed a homosexual act. Persons may still qualify for the Army despite their homosexual conduct if they prove to the satisfaction of Army officials that their orientation is heterosexual rather than homosexual. To illustrate, the discharge regulation provides that a soldier who engages in homosexual acts can escape discharge if he can show that the conduct was "a departure from the soldier's usual and customary behavior" that "is unlikely to recur because it is shown, for example, that the act occurred because of immaturity, intoxication, coercion, or a desire to avoid military service" and that the "soldier does not desire to engage in or intend to engage in homosexual acts." AR 635-200, 1115-3(a). The regulation expressly states, "The intent of this policy is to permit retention only of nonhomosexual soldiers who, because of extenuating circumstances engaged in, attempted to engage in, or solicited a homosexual act." Id. at note (emphasis in original). Similarly, the Army's ban on reenlisting persons who have committed homosexual acts does not apply to "[pjersons who have been involved in homosexual acts in an apparently isolated episode, stemming solely from immaturity, curiousity [sic], or intoxication, and in the absence of other evidence that the person is a homosexual." AR 601-280, 112-21 note. If a straight soldier and a gay soldier of the same sex engage in homosexual acts because they are drunk, immature or curious, the straight soldier may remain in the Army while the gay soldier is automatically terminated. In short, the regulations do not penalize soldiers for engaging in homosexual acts; they penalize soldiers who have engaged in homosexual acts only when the Army decides that those soldiers are actually gay. Footnote 13
In sum, the discrimination against homosexual orientation under these regulations is about as complete as one could imag-
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12. In stark contrast to the breadth and focus of the regulations, the only statute Congress has enacted regulating the private consensual sexual activity of military personnel covers only sodomy, not other forms of sexual conduct, and covers sodomy whether engaged in by homosexuals or heterosexuals. 10 U.S.C. § 925 (1982) provides: (a) Any person subject to this chapter who engages in unnatural carnal copulation with another person of the same or opposite sex or with an animal is guilty of sodomy. Penetration, however slight, is sufficient to complete the offense. (b) Any person found guilty of sodomy shall be punished as a court-martial may direct. Although the statute does not define "sodomy" or "unnatural carnal copulation," the statute does require proof of "penetration," which apparently limits sodomy to oral and anal copulation. See United States v. Harris, 8 M.J. 52, 53-59 (C.M.A. 1979). Moreover, the statute explicitly regulates sodomy without regard to sexual orientation by making sodomy illegal whether engaged in by persons of "the same or opposite sex." 10 U.S.C. § 925. There is no finding or even evidence that Watkins ever committed an act of sodomy, and thus there is no evidence that Watkins ever violated section 925. Indeed, the Army twice investigated Watkins for allegedly committing sodomy in violation of section 925 and had to drop both investigations because of "insufficient evidence." See supra at 1429-30 & n. 2. While the lack of evidence that Watkins committed sodomy prevents him from being convicted under the statute, it is immaterial under the Army regulations because they presume homosexual orientation from evidence of any form of homosexual bodily contact that gives sexual satisfaction.
13. This distinction based on sexual orientation may have directly affected the Army's treatment of Watkins because, were it not for his admitted homosexual orientation, Watkins might have been able to continue his 14-year career by arguing that the homosexual acts to which he admitted in 1968 were the product of his immaturity or curiosity.
ine. Footnote 14
The regulations make any act or statement that might conceivably indicate a homosexual orientation evidence of homosexuality; that evidence is in turn weighed against any evidence of a heterosexual orientation. It is thus clear in answer to our threshold equal protection inquiry that the regulations directly burden the class consisting of persons of homosexual orientation. Footnote 15
IV
Before reaching the question of the level of scrutiny applicable to discrimination based on sexual orientation and the question whether the Army's regulations survive the applicable level of scrutiny, we first address the Army's argument that we are foreclosed by existing Supreme Court and Ninth Circuit precedent from holding that the Army's regulations deny Watkins equal protection of the laws because they discriminate on the basis of homosexual orientation. The Army first argues that the Supreme Court's decision in Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), forecloses Watkins' equal protection challenge to its regulations. In Hardwick, the Court rejected a claim by a homosexual that a Georgia statute criminalizing sodomy deprived him of his liberty without due process of law in violation of the Fourteenth Amendment.
More specifically, the Court held that the constitutionally protected right to privacy 'recognized in cases such as Griswold v.
Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), and Eisenstadt v.
Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.
2d 349 (1972)'does not extend to acts of consensual homosexual sodomy. Footnote 16
See id. at 2843-46. The Court's holding was limited to this due process question. The parties did not argue and the Court explicitly did not decide the question whether the Georgia sodomy statute might violate the equal protection clause. See id. at 2846 & n. 8. Footnote 17
The Army nonetheless argues that it would be "incongruous" to hold that its regulations deprive gays of equal protection of the laws when Hardwick holds that
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14. We cannot agree with the premise of Judge Reinhardt's dissent that the Army disqualified Watkins from service because of his homosexual conduct as opposed to his homosexual orientation. Dissent at 1460. First, the regulations encompass all possible evidentiary grounds for inferring homosexual orientation and merely include homosexual acts as one possible, but by no means necessary, ground for drawing that inference. Second, the specific regulations allow some soldiers to remain in the Army despite homosexual conduct if they can prove that they in fact have a non-homosexual orientation. We also note that homosexual orientation encompasses a range of emotions, desires, and needs wholly separate from sexual conduct and involves an element of individual self-definition in addition to sexual conduct. We cannot agree with the dissent's view (Dissent at 1455-56, 1459-61) that the class comprised of persons who consider themselves homosexual is virtually identical to the class of persons who engage in homosexual conduct, and sodomy in particular.
15. Of course, in their attempt to identify soldiers of homosexual orientation, the regulations discriminate in their treatment of homosexual and heterosexual conduct. While homosexual acts subject the participants to discharge proceedings by triggering the regulatory presumption of "homosexuality," the identical acts when engaged in by members of the opposite sex do not subject the participants to any such proceedings.
16. Under the Court's analysis, because the Constitution's protection of the right to privacy does not extend to homosexual sodomy, a judgment by the state that sodomy is immoral provides a sufficiently rational basis for sodomy laws to satisfy the requirements of substantive due process. See Hardwick at 2846.
17. See also Hardwick, 106 S.Ct. at 2849 (Blackmun J. dissenting) (Court "refused to consider" equal protection clause); Doe v. Casey, 796 F.2d 1508, 1522 (D.C.Cir.1986) ("Although ... the Supreme Court's recent decision in Bowers v. Hardwick [held] that homosexual conduct is not constitutionally protected, the Court did not reach the different issue of whether an agency of the federal government can discriminate against individuals merely because of sexual orientation." (footnotes omitted and emphasis in the original)), cert, granted sub nom. Webster v. Doe, ' U.S.-----, 107 S.Ct. 3182, 96 L.Ed.2d 671; Swift v. United States, 649 F.Supp. 596, 601 (D.D.C.1986) ("this Circuit has declined to read [Hardwick ] as barring claims of discrimination based on sexual preference"); but cf. Padula v. Webster, 822 F.2d 97 (D.C.Cir.1987) ("reasoning in Hardwick forecloses ... suspect class status for practicing homosexuals").
there is no constitutionally protected privacy right to engage in homosexual sodomy. Army's Second Supp. Brief at 19. We disagree. First, while Hardwick does indeed hold that the due process clause provides no substantive privacy protection for acts of private homosexual sodomy, nothing in Hardwick suggests that the state may penalize gays for their sexual orientation. Cf. Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962) (holding that state violated due process by criminalizing the status of narcotics addiction, even though the state could criminalize the use of the narcotics'conduct in which narcotics addicts by definition are prone to engage).
Second, although Hardwick held that the due process clause does not prevent states from criminalizing acts of homosexual sodomy, id. at 2842 n. 2, nothing in Hardwick actually holds that the state may make invidious distinctions when regulating sexual conduct. Unlike the Army's regulations, the Georgia sodomy statute at issue in Hardwick was neutral on its face, making anal and oral intercourse a criminal offense whether engaged in by partners of the same or opposite sex. See id. 106 S.Ct. at 2842 n. I. Footnote 18
In deciding a due process challenge to the Georgia statute as applied to homosexual sodomy, Footnote 19 the Hardwick Court simply did not address either the question whether heterosexual sodomy also falls outside the scope of the right to privacy or the separate question whether homosexual but not heterosexual sodomy may be criminalized without violating the equal protection clause. We cannot read Hardwick as standing for the proposition that government may outlaw sodomy only when committed by a disfavored class of persons. Surely, for example, Hardwick cannot be read as a license for the government to outlaw sodomy only when committed by blacks. If government insists on regulating private sexual conduct between consenting adults, it must, at a minimum, do so evenhandedly'prohibiting all persons from engaging in the proscribed sexual acts rather than placing the burden of sexual restraint solely on a disfavored minority. Footnote 20
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18. Cf. United States v. Lemons, 697 F.2d 832, 837-38 (8th Cir.1983) (rejecting homosexual's equal protection challenge to sodomy statute because criminal law also prohibited the same conduct between persons of the opposite sex).
19. The district court had dismissed two heterosexual plaintiffs for lack of standing, and they did not appeal. Hardwick, 106 S.Ct. at 2842 n. 2.
20. Judge Reinhardt argues in dissent that our opinion reads Hardwick as "implicitly permitting the regulation of heterosexual conduct" thereby "increas[ing]'exponentially'the damage to the right to privacy caused by Hardwick." Dissent at 1454. First, we do not read Hardwick as reversing or even undermining any of the cases establishing and defining the right to privacy. We simply read Hardwick as refusing to extend the constitutionally protected right to privacy to acts of homosexual sodomy. Second, we do not read Hardwick as passing judgment one way or the other on whether the constitutionally protected right to privacy extends to heterosexual sodomy. We do note, however, that the Court's reasoning in Hardwick rests in major part on its determination that at one time all 50 states outlawed sodomy and that 24 states and the District of Columbia continue to outlaw sodomy. "Against this background," Justice White reasoned, it would be "at best facetious" to claim that "a right to engage in such conduct is 'deeply rooted in our history and tradition' or 'implicit in the concept of ordered liberty.'" 106 S.Cl. at 2845^16. In making this point the Court drew no distinction between homosexual and heterosexual sodomy, nor do 19 of the 25 jurisdictions that still outlaw sodomy. See Survey on the Constitutional Right to Privacy in. the Context of Homosexual Activity, 40 U. Miami L.Rev. 521-26 (1986). The dissent's interpretation of Hardwick'that it authorizes the state to single out homosexual conduct for criminal sanction because that conduct is committed by homosexuals'is wide of the mark. Hardwick explicitly focused on the question whether the right to privacy extends constitutional protection to the commission of homosexual sodomy. See 106 S.Ct. at 284