This has been posted to biact-l, bisexu-l, soc.bi, and soc.motss. Please crosspost as you see fit. Michael Beer mbeer@cap.gwu.edu Copyright 1994 The Bureau of National Affairs, Inc., U.S. LAW WEEK -- DAILY EDITION Apr. 14, 1994 LENGTH: 1392 words NEW COURT DECISIONS CV 94-0974 DC ENY Able v. U.S. DISCHARGES -- Armed Forces U.S. Law Week Digest of 4/4/94 Opinion COURT'S RULING -- Homosexual service members who contend that 1994 policy requiring discharge of members who "demonstrate a propensity" to engage in homosexual acts will result in discharge if they declare their homosexual orientation for purpose of lawsuit challenging constitutionality of policy have demonstrated sufficient harm and sufficiently serious questions concerning violation of their First Amendment free speech rights and Fifth Amendment equal protection rights to warrant preliminary injunction against their dismissal on basis of statements made during lawsuit challenging policy. (Able v. U.S., DC ENY, No. CV 94-0974, 4/4/94) DIGEST OF OPINION -- This action appears to be the first to challenge Section 571 of the National Defense Authorization Act for the Fiscal Year 1994, 10 USC 654, concerning a new policy as to homosexuals, and regulations issued under the statute. Each plaintiff is a homosexual member of the services who has served honorably for years. They argue that the statute and regulations violate their Fifth Amendment equal protection and First Amendment free speech rights and impose on lesbians and gays punitive rules unrelated to fitness and ability to serve, rules promoting no legitimate military interest and based on presumed prejudices of heterosexual service members and civilians. The statute states that the prohibition against homosexual "conduct" is a longstanding and still necessary element of military law, and that the presence in the services of persons who demonstrate a "propensity" or "intent" to engage in homosexual acts would create an unacceptable risk to "good order" and "unit cohesion" essential to military capability. Subsection (b) states that a service member "shall be separated" if one or more of the following findings are made: (1) The member is found to have engaged, attempted to engage, or solicited another to engage, in homosexual acts unless the member has demonstrated, among other things, that he or she "does not have a propensity or intent to engage in homosexual acts." (2) The member "has stated that he or she is a homosexual or bisexual, " unless "the member has demonstrated that he or she is not a person who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts." (3) The member has married or attempted to marry someone of the same sex. "Homosexual" is defined to include the terms gay and lesbian and means a person who engages, attempts to engage, has a propensity to engage, or PAGE 5 U.S. LAW WEEK -- DAILY EDITION BNA, Inc. intends to engage in homosexual acts. The term "homosexual act" means any bodily contact between members of the same sex to satisfy sexual desires or any such contact that a reasonable person would understand to "demonstrate a propensity" or "intent" to engage in such an act. The statute has no definition of the word "propensity." The secretary of defense issued a memorandum concerning the implementation of the new policy stating that no one applying to become a member "will be asked about his or her sexual orientation," that "homosexual conduct may be a basis for rejection," and that the suitability of persons to serve will be based not on "sexual orientation" but on "homosexual acts" and "statements that reflect an intent or propensity to engage" in such acts. The guidelines annexed to the directive make it clear that a statement by a service member that he or she is a homosexual "creates a rebuttable presumption" that the member "engages in homosexual acts or has a propensity or intent to do so." The word "propensity" is generally understood to mean a natural inclination or an innate or inherent tendency. Webster's Third New International Dictionary. "Innate" means existing in one from birth or inborn. Neither the statute nor the directive suggests how one who was born with an innate tendency, a "propensity," to commit a homosexual act can prove that he or she does not have such a propensity. To invite someone to prove that he or she does not have an inborn tendency seems like a hollow offer. The directives state that propensity to engage in homosexual conduct "means more than an abstract preference or desire to engage" in homosexual acts and "indicates a likelihood that a person engages in or will engage in" them. But the guidelines make clear that the very statement of homosexual orientation establishes such a likelihood. They treat as "homosexual conduct" not merely statements that in context may reasonably be considered as revelations of intent to or as invitations to engage in homosexual acts. They go so far as to make any statement of homosexual orientation, wherever and whenever made, even a statement to this court, as proof of an intent to engage in homosexual acts. Thus, statements such as "I am a homosexual," "I am gay," or "I am a lesbian" constitute homosexual conduct. The plaintiffs say that the statute inhibits their right of free speech because they face retaliation for statements they must make in this action to test the statute's constitutionality. The fact that the complaint identifies plaintiffs as having a homosexual orientation has caused the services to take action against some of them. The First Amendment guarantees the right to petition the government for a redress of grievances, and that includes the right of access to the courts. An acknowledgment that one is gay is clearly speech. But the statement is also an act of identification, a non-speech element. When speech and non-speech elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the non-speech element can justify incidental limitations on First Amendment freedoms. U.S. v. O'Brien, 391 U.S. 367 (1968). To say that plaintiffs may not even petition this court and litigate this case without incurring the disabilities that the government seeks to visit upon them seems to this court at least to raise a serious First Amendment question. The statute and regulations restrict their speech not only while PAGE 6 U.S. LAW WEEK -- DAILY EDITION BNA, Inc. they are in uniform and on duty, or on base, but in every conceivable aspect of their lives, including the prosecution of this lawsuit. A military regulation may restrict speech no more than is reasonably necessary to protect the substantial governmental interest. There is a serious question as to whether a regulation goes beyond what is reasonably necessary to protect any possible government interest when it inhibits six service members from continuing to speak in court to make a constitutional challenge. The plaintiffs also assert that the statute and regulations violate their right to equal protection, serve no rational, legitimate government interest, and reflect only the actual or perceived private prejudices of those who are not lesbian or gay. Assuming the statute and regulations are subject to only minimal equal protection scrutiny, they are valid if the distinction they make is rationally related to a legitimate governmental purpose. There is a split of authority as to whether the military's prior policy, making the status of being homosexual "incompatible with military service," denied homosexuals equal protection because no similar policy obtained as to heterosexuals. This court does not now undertake to assess the relative merits of the divergent holdings. It is enough to say that the allegedly new policy makes the same distinction between homosexuals and heterosexuals as to the prior policy. The conflict of authority signifies the seriousness of the questions going to the merits of plaintiffs' equal protection claim. The court is satisfied that the plaintiffs have shown sufficient harm to warrant granting their request for a preliminary injunction against having the services take any further actions against them while they pursue the merits of their constitutional challenge to the statute.--Nickerson, J.