Chapter Two Bowers v. Hardwick and Watkins v. United States Army Introduction When the United States Supreme Court handed down its decision in the case of Bowers v. Hardwick1 in 1986 it delivered a large setback to many in the gay and lesbian rights movements. While this case only passed judgment on the constitutionality of sodomy laws, it has provided ammunition for many who discriminate against or fight to limit the rights of gay men and lesbians. It also provided many in the judiciary who are opposed to gay and lesbian- rights, be it personally or judicially, a constitutional decision to hide behind. As a result the Courts ruling in Hardwick is important to any investigation into the legal struggle of gay men and lesbians. Three years later, the first major defeat given of the military's gay and lesbian exclusion policy was handed down by the Court of Appeals, and upheld by the Supreme Court, in the case of Perry Watkins. In a en banc decision, a panel in the Ninth Circuit estopped the Army from discharging an openly gay soldier. While the majority decision was made without addressing the constitutional issues of the military's gay and lesbian exclusion policy, it was the first time such a decision was handed down. In addition, it showed that homosexuals do have constitutional rights that are protected by the courts. This is important because many were concerned that the Hardwick decision would be interpreted to preclude homosexuals from redress in the courts on gay and lesbian issues. I. Bowers v. Hardwick 478 U.S. 186 (1985) In August 1982, Michael Hardwick was arrested and charged with violating a Georgia law2 which criminalizes the act of sodomy. Hardwick was arrested when the police were trying to serve him with an arrest warrant for failure to appear in court on a charge of drinking in public. The police went to Hardwick's house to serve the warrant and were let in by a roommate; they found Hardwick in his room having having sex with another man. The district attorney, after a preliminary hearing, decided not to pursue an indictment of Hardwick before a grand jury. Hardwick and his attorney, though, had already filed a suit claiming that the Georgia law pertaining to consensual sodomy was a violation of several of Hardwick's constitutionally protected rights. John and Mary Doe joined the suit; they were a married couple who wished to engage in heterosexual sodomy. The federal district court granted the states motion for dismissal on the grounds that Hardwick had failed to state a claim on which relief could be granted and John and Mary Doe had no proper standing. The ruling against Hardwick was reversed by a divided panel of the U.S. Court of Appeals for the Eleventh Circuit; the ruling against John and Mary Doe was affirmed. The appeals court ruled that the district court had erred in granting the state's motion for dismissal. It ruled that, Hardwick had proper standing because as a practicing homosexual he was in imminent danger of arrest under the statute. The appeals court went on to hold that the Georgia law violated the U.S. Constitution. The appeals court relied on the Supreme Court's decisions in Griswold v. Connecticut,3 Eisenstadt v. Baird,4 Stanley v. Georgia5 and Roe v. Wade6 when appeals court ruled that the Georgia law violated Hardwick's fundamental right to privacy. Bowers, the attorney general of Georgia, appealed this ruling to the United States Supreme Court; which reversed the appeals court's decision. A. Supreme Court's Decision in Hardwick On June 30, 1986, the Court delivered its decision in Bowers v. Hardwick, written by Justice Byron White. The first issue addressed by Justice White was the scope of the Court's decision. Though the Court in essence upheld the law against both consensual heterosexual and homosexual conduct, the Court stated the "issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy...."7 While Hardwick was arrested for violating the sodomy laws with another man, the Court is been criticized for viewing this purely as a concern of gay men. The thought that only gay men violate this law is at best naive, for many studies of sexual behavior between men and women show that contact between mouth and genitalia is common.8 The Court went on to identify the differences between the Hardwick case and such cases as Griswold v. Connecticut and Roe v. Wade, which they said dealt with the right to decide whether or not to bear children, not a fundamental right to engage in sexual activity. The Court went on to say that no "connection between family, marriage, or procreation on the one hand and homosexual activity on the other has been demonstrated by either the Court of Appeals or by respondent."9 In fact, there is no fundamental right to privacy stated in the Constitution; it is only interpreted from the Due Process Clause inherent in the Fifth and Fourteenth Amendments. Because of this, the Court must strive "to assure itself and the public that announcing rights not readily identifiable in the Constitution's text involves much more then the imposition of the Justices' own choice of values on the States...."10 Such implied rights that are considered fundamental liberties must be "'implicit in the concept of ordered liberty' such that 'neither liberty nor justice would exist if [they] were sacrificed.'"11 A different formulation for an implied fundamental right is "characterized as those liberties that are 'deeply rooted in this Nation's history and tradition.'"12 According to the Court, then, "neither of these formulations would extend a fundamental right to homosexuals to engage in acts of consensual sodomy."13 The Court majority pointed out that, at the time of the ratification of the Bill of Rights, sodomy was prohibited by the original thirteen colonies and common law. When the Fourteenth Amendment was passed in 1868, only 5 of the 37 states did not have sodomy laws on the books. In 1960, every state in the Union had criminal sodomy laws, and when this case was decided, the District of Columbia and 24 states still had criminal sodomy laws. "Against this background, to claim that a right to engage in such conduct is 'deeply rooted in this Nation's history and tradition' or 'implicit in the concept of ordered liberty' is, at best, facetious."14 The Court went on to dismiss Hardwick's reliance on Stanley v. Georgia. It noted that Stanley was a First Amendment case and emphasized that the decision was "firmly grounded" in the Constitution. The fact that consentaneous sodomy is a victimless crime does not afford it any protection either. Drug laws apply equally to people in their homes as they do on the street. The Court concluded that while there is not a fundamental constitutional right to engage in consensual homosexual sodomy, Georgia must show a rational basis for this law. This rational basis is found by the court in the "notions of morality" expressed by a majority of the electorate in Georgia and 25 other states.15 Chief Justice Warren Burger and Justice Lewis Powell both wrote concurring opinions in which they joined the Court's decision. In his concurrence, Chief Justice Burger stressed the historical background to sodomy laws, the moral aspect of the sodomy law and the states' legislative authority. Justice Powell found "no substantive right under the Due Process Clause such as that claimed by respondent Hardwick, and found to exist by the Court of Appeals."16 Justice Powell did express concern, however, about the implications of the law under the Eighth Amendment, prohibiting cruel and unusual punishment. A prison sentence, especially one of long duration, "would create a serious Eighth Amendment issue."17 B. Dissent of Justice Blackmun Justice Harry Blackmun in his dissent viewed Hardwick's claim not as a question of whether or not there is a fundamental right to engage in homosexual sodomy; "[r]ather, this case is about 'the most comprehensive of rights and the most valued by civilized men,' namely, 'the right to be left alone.'"18 In addition, just because the Georgia law is expressing a moral judgment that may be familiar, this familiarity is not a valid reason for upholding its constitutionality. Justice Blackmun, quoting the late Justice Holmes, stated that it is: revolting to have no better reason for a rule of law than that ... it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.19 Blackmun said further that the Court in its opinion had distorted the question presented by Hardwick. Blackmun first addressed the fact that the Court focused obsessively on homosexuality. The Georgia law supposedly prohibits both homosexual and heterosexual sodomy, yet the Court did not focus on the whole issue before it. In addition, Hardwick's standing for this case may significantly rest on the fact that Georgia only seemed to be willing to enforce this law against homosexuals. Second, Blackmun did not agree with the Court's refusal to consider whether the Georgia law violated the Eighth or Ninth Amendment or the Fourteenth Amendment's Equal Protection Clause. The fact that Hardwick did not raise these questions did not mean that they should not be addressed by the Court, because "'a complaint should not be dismissed merely because a plaintiff's allegations do not support the particular legal theory he advances...'"20 In part two of his dissent, Blackmun addressed the privacy issue raised by Hardwick. The justice identified two lines of reasoning taken by the Court in the past. First, certain personal decisions are just that and should be left to the individual to make. These decisions have, in the past, included the right to choose whether or not to bear children, because pregnancy affects one's life so dramatically and because sexual intimacy is so important to human life. The Court's ruling in in this case denied Hardwick that choice of intimate association with whom he chooses. Second, there are certain places in which the privacy interests are given without regard to the activities that might take place in them; one such place is the home. The Fourth Amendment gives special significance to the notion that "protecting the physical integrity of the home is more then merely a means of protecting specific activities that often take place there."21 It was in such protection of the home that Stanley v. Georgia was grounded, not the First Amendment. Blackmun concluded his dissent with an examination of the rational basis set forth by the state of Georgia and the Court. The Justice first addressed the State's claim that it was only protecting the health and general welfare of its citizens. As Justice Blackmun noted, the state had provided no evidence that the actions it was prohibiting have any detrimental effect on the persons engaged in this activity or on others. The second claim by the state and the Court was that the state was trying to maintain a decent society by prohibiting what has been condemned for hundreds if not thousands of years. Justice Blackmun responded by stating that traditional Judeo-Christian values do not provide adequate justification for law; for "[a] State can no more punish private behavior because of religious intolerance then it can punish such behavior because of racial animus."22 This, Justice Blackmun concluded, is what Georgia and the Court are doing because they "fail to see the difference between laws that protect public sensibilities and those that enforce private morality."23 Justice Blackmun was joined by Justice William Brennan, Justice Thurgood Marshall and Justice John Paul Stevens in this dissent. C. Dissent of Justice Stevens In a separate dissent, Justice Stevens focused on two questions: first, can Georgia prohibit sodomy against heterosexual couples; second, if not, can the state prohibit sodomy only against homosexuals? On the first question Justice Stevens made two points grounded in the Court's past decisions. First, the fact that the governing majority of a state traditionally views a particular act as immoral does not constitute a sufficient reason for upholding a law that prohibits that act. Second, married persons cannot be legislatively prohibited in their intimate practices even though they do not intend to produce offspring. This was the ruling in Griswold and was extended to unmarried couples in Carey24 and Eisenstadt. Justice Stevens' second question was thus: if the past rulings of the Court protect heterosexual couples from Georgia Code Ann. 16-6-2, which prohibits sodomy, can this law be selectively enforced against homosexuals? If the state wishes to apply this law selectively, then it has the burden of justifying its actions. There are only two possible answers. One response would be that homosexuals are not equal to heterosexuals in the eyes of the law and do not have the same interest as heterosexuals in deciding how to live their lives. This possibility is plainly unacceptable. The second justification would be that the state law is supported by a neutral and legitimate interest; neither the state nor the courts has provided such a justification.25 II. Watkins v. U.S. Army et al. 875 F.2d 699 (9th Cir. 1989) Sgt. Perry J. Watkins brought suit against the United States Army to estopp them from discharging him because of his self-admitted homosexuality. This case differs from many others because Watkins served for 14 years while being openly gay, including admitting that fact on his draft service enlistment form. The Army had on several occasions ignored his self-admitted homosexuality until 1981. In a series of cases in the Ninth Circuit, an en banc panel upheld the district court's original ruling that the Army was and could be estopped from dismissing Watkins. In addition, in a very interesting concurring opinion, by Judge William A. Norris she proposed to give gay men and lesbians the protection of "strict scrutiny." A. Historical Record of Watkins' Military Service and Lower Court Rulings In August of 1967, Watkins was drafted into the Army; he was 19 years old. At this time he marked "yes" on the Army's preinduction medical form in response to a question that asked if he had homosexual tendencies. Despite this admission and the regulations barring homosexuals from enlistment, he was marked "qualified for enlistment." In 1968, as part of a criminal investigation into sodomy charges, Watkins signed an affidavit stating that he had been gay since age 13 and that he had committed sodomy with two other service members since his enlistment. Even with this admission, the Army dropped its investigation due to lack of evidence. In 1970, when his first enlistment period ended, Watkins left the service and his reenlistment eligibility code was marked "unknown." A year later Watkins' requested his eligibility code to be corrected to read "eligible for reentry" which would allow him to reenlist. In 1971 Watkins' reenlistment code was revised to read "eligible for reentry." In 1972, Watkins' reenlisted for a second three year tour. That same year, security clearance was denied to Watkins because of his acknowledged homosexuality; at this time the Army again investigated Watkins for allegedly committing sodomy. The investigation as before was dropped due to lack of evidence. In 1975, Watkins reenlisted for a six-year term. That same year, a board of officers was convened by the Army to determine whether or not Watkins should be discharged for his homosexual tendencies. Based on testimony from Watkins' commanding officer and review of his service record, a four officer board unanimously recommended his retention "'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.'"26 The Army accepted this recommendation, and in November of 1977 Watkins was given a security clearance for information classified as "Secret." On March 15, 1979, Watkins again in an interview acknowledged that he was gay. This resulted in the revocation of his security clearance in 1980. The Army attempted to discharge him, in accordance with Army regulation 635-200, in 1981 on a review board's recommendation; the board, however, rejected all evidence brought by the Army that Watkins had committed sodomy after 1968. In May of 1982, before Watkins' discharge was complete, U.S. District Judge Rothstein enjoined the Army from discharging Watkins. Judge Rothstein reasoned that the Army had placed Watkins in double jeopardy, barred by Army regulations, because of the 1975 discharge proceedings. In the process of oral argument before the district court, the Army stated that if it was enjoined from discharging Watkins it would refuse him reenlistment in 1982. On October 5, 1982, the district court enjoined the Army from refusing Watkins reenlistment because he admitted that he was gay. On November 1, 1982, the Army admitted Watkins with the proviso that if the Army won its appeal his reenlistment would be void. The Army won its appeal in 1983. A three judge appeals panel ruled that the "equity powers of the federal courts could not be exercised to order military officials to violate their own regulations absent a determination that the regulations were repugnant to the Constitution or the military's statutory authority."27 The case was remanded to the district court for argument on the issue of whether the Army's regulation that called for the dismissal of gay men and lesbians absent of criminal conduct was constitutional. The seconed district court, on remand, denied Watkins' motion for summary judgment28 and granted summary judgment to the Army. The court ruled that the Army's regulations were not repugnant to statutory authority or to the Constitution. Watkins appealed the seconed district court's ruling. A seconed three judge appeals panel, in a divided decision, reversed the seconed district court's 1988 ruling. The panel held that the Army's reenlistment regulations violate the constitutional guarantee of equal protection of the laws because they discriminate against persons of homosexual orientation and because the regulations are not necessary to promote a legitimate compelling governmental interest.29 The Army appealed the ruling the seconed three judge appeal panel to the full court of the 9th Circuit, which granted review.30 B. En Banc Decision in Watkins Arguments were held before the full court on October 12, 1988; the court gave its decision on May 3, 1989. The court found for Watkins and reversed the decision by the first appeals panel that had held that the court could not estop the Army from discharging Watkins. The court reached this conclusion without reviewing the constitutional issues raised in the second appeals panel. In reaching this decision the court had to answer three questions: does Watkins pass the test for the review of military policies and procedures, Mindes test, if it applies; does Watkins meet the standards for equitable estoppel31 against the government; and third, does Watkins case contain the traditional elements of estoppel.32 The Mindes test is a standard for review of military policies and procedures established in Mindes v. Seaman.33 The Fifth Circuit articulated this test for determining if a particular internal military decision should be reviewed. Mindes cautioned that a court should not review internal military affairs in the absence of (a) an allegation of the deprivation of a constitutional right or an allegation that the military has acted in violation of applicable statutes or its own regulations and (b) exhaustion of available intraservice corrective measures. If the plaintiff meets both prerequisites, the court must weigh several factors to determine whether to grant review. These factors are (1) the nature and strength of the plaintiff's claim; (2) the potential injury to the plaintiff if review is refused; (3) the extent of interference with military functions; and (4) the extent to which military discretion or expertise is involved.34 The court followed an earlier precedent set in Helm v. State of California35 that in cases of equitable estoppel the court does not have to apply the Mindes test. The doctrine of equitable estoppel addresses the same concerns set forth in the Mindes test; hence, the Mindes test must only be applied in cases involving a constitutional claim. This decision, by the full court, in the Watkins' case did not address the constitutional questions.36 The court found that Watkins satisfied the requirements for equitable estoppel against the government. The Supreme Court has established no set standard for the question of whether the federal government is or is not subject to estoppel. What the Court has established is that heightened deference must be given to the government and that it cannot be estopped on the same grounds as a private litigant. In this vacuum, the Ninth Circuit established its own standard for applying equitable estoppel to the government and to the military when the facts justify. Before the government will be estopped, however, two additional elements must be satisfied beyond those required for traditional estoppel. First, "[a] party seeking to raise estoppel against the government must establish 'affirmative misconduct going beyond mere negligence'; even then, 'estoppel will only apply where the government's wrongful act will cause serious injustice, and the public's interest will not suffer undue damage by imposition of the liability.'" Wagner v. Director, Federal Emergency Management Agency, 847 F.2d 515, 519 (9th Cir. 1988) (quoting Morgan v. Heckler, 779 F.2d 544, 545 (9th Cir. 1985)).37 On the question of affirmative misconduct there is no single test, hence each case must be viewed on the basis of its own particular facts. In all cases, though, affirmative concealment or affirmative misrepresentation of a material fact on the part of the government must be shown. In this case the military affirmatively misrepresented its official records, since for 14 years it marked Watkins qualified for reenlistment and indeed promoted Watkins, though he never hid the fact that he was gay. By doing this the Army violated its own rules. Second, the court states, the serious injustice of denying Watkins' estoppel outweighed any possibility of harm that might be levied against the Army or the public interest in this case. Watkins' service record clearly showed that Army had greatly benefited from his service. Watkins' service record also shows that the Army has in no way been damaged by Watkins' open homosexuality.38 After establishing that Watkins had passed the two elements required to sustain an estoppel claim against the government, the court turned to the traditional elements of estoppel. There are four traditional elements of estoppel: (1) The party to be estopped must know the facts; (2) he must intend that his conduct shall be acted on or must so act that the party asserting the estoppel has a right to believe it is so intended; (3) the latter must be ignorant of the true facts; and (4) he must rely on the former's conduct to his injury.39 There can be little argument that the Army did not know the facts: Watkins acknowledged that he was gay at induction, was denied a security clearance because he was gay, had a review board hearing that established that fact in 1975, was given a security clearance 1977 even though he acknowledged that he was gay, and twice was investigated for allegedly committing sodomy. Second, did Watkins have the right to believe that the Army actions, and not its written regulations, exhibited its real intentions? Yes, said the court: the fact that Watkins repeatedly acknowledged that he was gay and the Army repeatedly ignored or waived this admission for fourteen years established that Watkins could rely on the Army's actions, not their regulations. Third, was Watkins unaware of the true facts? Though the "true fact" is that the Army maintains that its policy against gay service members in non-waivable; the fact that it was repeatedly waived for Watkins means we cannot charge that Watkins had knowledge of this fact. Fourth, did Watkins rely on the Army's conduct concerning his admission that he was gay in a manner which caused him injury? Yes, the fact that the Army started litigation after 14 years and not sooner has harmed Watkins. This is because for 14 years Watkins sacrificed skills that would be necessary to reach the same position in civilian life for skills necessary to attain his position in the Army.40 C. Concurring Opinions Two concurring opinions were written, one by Circuit Judge Norris the second by Circuit Judge Canby. Judge Norris concurred only in the majority judgment, feeling that the court could not rely on equitable estoppel against the government to decide this case. Instead she established an equal protection argument barring the military from discriminating against gay and lesbian service members. The most interesting aspect of this decision is that Judge Norris found that gay men and lesbians are a suspect class entitled to strict scrutiny, the highest level of equal protection review. Judge Canby concurred with Judge Norris' opinion except that Judge Canby believed that equitable estoppel can also be levied against the government. After establishing that the Army does discriminate on the basis of sexual orientation, not sexual acts, Judge Norris addressed the Army's claim that Bowers v. Hardwick forecloses Watkins' equal protection claim. Judge Norris points out that in Hardwick the Court ruled that there is no constitutionally protected right of privacy that covers homosexual sodomy. The Court did not address an equal protection claim, only a substantive due process claim. In addition, "nothing in Hardwick suggests that the state may penalize gays merely for their sexual orientation."41 This is the same as Robinson v. California,42 in which the Supreme Court declared a California law that criminalized narcotics addiction unconstitutional, even though the State could criminalize narcotics. In essence the Army regulation in question here is prohibiting a state of mind, this is what the Court was declaring unconstitutional in Robinson. Watkins is a "orientation" case, not a "conduct" case.43 Judge Norris then established that no federal appellate court has decided whether or not people of homosexual orientation, such as Watkins, constitute a "suspect class." Judge Norris addressed the three factors established by the Court to consider whether a group constitutes a suspect class. The first factor is whether a group has suffered a history of purposeful discrimination. Judge Norris cites many cases establishing that gay men and lesbians have been the subject of purposeful discrimination, such as: Rowland v. Mad River Local School District,44 High Tech Gays v. Defense Industrial Security Clearance Office45 and Ben-Shalom v. Secretary of the Army.46 In addition, the Army in its own brief has conceded this point. In conclusion, this discrimination is no less then that received by other groups which have been extended this protection, such as people of a particular race or national origin and aliens. The second factor established by the Court is in reality a cluster of factors. The basic question is whether the discrimination is so grossly unfair that it is sufficiently inconsistent with the ideals of equal protection to be termed "invidious." In considering this question of gross unfairness, the Court has considered four things, the first three of which are: (1) whether the disadvantaged class is defined by a trait that "frequently bears no relation to ability to perform or contribute to society" (2) whether the class has been saddled with unique disabilities because of prejudice or inaccurate stereotypes; and (3) whether the trait defining the class is immutable.47 First, one's ability to perform is in no way related to one's sexual orientation this was clearly shown by Watkins service record. The Army itself had conceded that there was not a "scintilla" of evidence showing that Watkins' open sexual orientation has had any negative effect on his or his unit's performance.48 The fact that there was no evidence that Watkins' sexual orientation had had any effect on his or his unit's performance suggests that the Army's regulation is based on inaccurate stereotypes. Judge Norris agrees with Justice Brennan that "discrimination against homosexuals is 'likely ... to reflect deep-seated prejudice rather than ... rationality.'"49 The Army tries to justify this by claiming that they are not prejudiced but are only upholding a ban against people who society feels engage in immoral behavior plus those who engage in acts of sodomy in violation of the law. The Army, though, cannot seem to understand that this is a case concerning sexual orientation, not sexual acts. Sexual orientation has never been illegal, and any attempt to make it illegal would present grave constitutional problems. In addition, much of the sexual contact engaged in by gay men and lesbians is not considered by Army regulations to be illegal. Thus to claim that the only sexual gratification available to gay men and lesbians available is illegal is fictitious.50 Judge Norris continued, the third factor that has been set down by the Court is that the indicator of the trait is immutable. The immutability of homosexual orientation is as immutable as racial heritage. The causes of sexual orientation that differ form the "norm" are not fully understood. Scientific research does show that whatever the reason, we have little control over sexual orientation, and once acquired it is largely "impervious" to change. To attempt such a change would be an enormous and traumatic effort, if possible at all, be it from homosexual orientation to heterosexual orientation or from heterosexual orientation to homosexual orientation. While it is conceivable that one might be able to change sexual orientation with shock therapy, it is also conceivable you could change the physical characteristics that help define African Americans or Hispanics with skin pigmentation injections. These radical and traumatic processes though have never been considered viable solutions, by the courts, to racial discrimination.51 The final factor that needs to be considered in order to qualify a group for suspect classification, as established by the Supreme Court after the first three conditions have been met, is whether the group lacks the political power necessary to obtain relief. The very fact that homosexuals have historically been underrepresented in and victimized by political bodies is itself strong evidence that they lack the political power necessary to ensure fair treatment at the hands of government.52 In addition, when people "come out of the closet" and to try to effect a political change their efforts often result in failure, for they fall victim to the same discrimination they are trying to defeat. Heterosexual politicians find it hard to empathize with problems that affect the gay and lesbian communities. The fact that the Army claims that it must keep this ban to "maintain the public acceptability of military service"53 also lends credence to this theory of political isolation.54 After Judge Norris established that people of homosexual orientation constitute a suspect class, she set forth to determine whether the Army's ban against people with homosexual orientation is "'necessary to promote a compelling governmental interest.'"55 In addition, because this is a military regulation, more deferential treatment must be given than to comparable civilian governmental laws. Congress has outlawed only sodomy in its laws concerning the military, not sexual orientation. No evidence, from the debates on the military's criminal sodomy law, reflects an intent of such discrimination. Nor do any of the reasons put forth by the Army constitute compelling governmental interests; these reasons are in fact all too familiar to those used to separate African American solders from white solders in the past.56 Conclusion While Hardwick is not a case that involves the military directly its importance in gay and lesbian rights litigation involving the military is great. While its role can be seen in Watkins it plays a more prominent role the cases of Dusty Pruitt, Keith Meinhold and Joseph Steffan. In all of these case the constitutionality of the policy as a whole is under review. One of the main defences by the military is that it is only discharging personnel who have propensity violate the Article 125 which prohibits sodomy, which can be prohibited constitutionally. The case of Perry Watkins is important to future litigation in several aspects. The first, that it is one case that has been won by gay and lesbian rights activists at the expense of the military. More importantly the Watkins case established that gay men and lesbians have recourse against the military. Third, the military can be ordered by the courts reverse an order on constitutional grounds and be barred from repeating it. This is now well established with the affirmation of the 9th Circuits' ruling in this matter by the Supreme Court, which denied cert to the military's appeal. _______________________________ 1 478 U.S. 186 (1985). 2 Georgia Code Ann. 16-6-2 (1984) reads in part as follows: "(a) A person commits the offense of sodomy when he performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another.... "(b) A person convicted of the offense of sodomy shall be punished by imprisonment for not less then one nor more then 20 years...." 3 381 U.S. 479 (1965). The Court ruled that use of birth control by married couples is protected by a fundamental right of privacy. 4 405 U.S. 438 (1972). The Court ruled that the use of contraceptives by unmarried couples was included in the scope of fundamental privacy. 5 394 U.S. 557 (1969). The Court overturned a Georgia law that prohibited the possession of "obscene" materials in the privacy of one's own house on First and Fourteenth Amendment grounds. 6 410 U.S. 113 (1973). The Court ruled that the Constitution protected the right of women to have an abortion on demand in the first trimester, as part of the fundamental privacy doctrine. 7 Bowers v. Hardwick, 478 U.S. 186, 190 (1985). 8 See Kinsey, p. 369, and Institute for Sex Research, p. 267. 9 Bowers, 191. 10 Ibid. 11 Ibid., 191-192; quoting Palko v. Connecticut 302 U.S. 319, 325, 326 (1937). 12 Bowers, 192; quoting Moore v. East Cleveland 431 U.S. 494, 503 (1977). 13 Bowers, 192. 14 Ibid., 194. 15 Bowers, 195-196. 16 Bowers v. Hardwick, 478 U.S. 186, 197 (1985) (Powell, J., concurring). 17 Ibid. 18 Bowers v. Hardwick, 478 U.S. 186, 199 (1985) (Blackmun, J., dissenting). 19 Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 469 (1897), quoted in Bowers, 199 (Blackmun, J., dissenting). 20 Bowers, 199 (Blackmun, J., dissenting), quoting Bramlet v. Wilson, 495 F. 2d 714, 716 (CA8 1974). 21 Ibid., 206. 22 Bowers, 211-212. 23 Ibid., 212. 24 Carey v. Population Services International, 431 U.S. 678 (1977). 25 Bowers v. Hardwick, 478 U.S. 186, 214-220 (1985) (Stevens, J., dissenting). 26 Watkins v. U.S. Army 875 F. 2d 699, 702 (9th Cir. 1989) 27 Ibid., 704. 28 Summary judgment is when the judge declares a winner in a law suit with out having a full trial based on the merits of the case. This is done most often when the facts of the case are not in dispute. For example in the Watkins' case the fact that Watkins is gay was not in dispute, the constitutionality of the Army 'sregulation was. This was at the time when ample precedent existed that the Army's regulation was not unconstitutional, hence, the judge saw no reason to retry the issue again. 29 Watkins, 704. 30 Ibid., 701-704. 31 Equitable estoppel is, in this case, the doctrine by which the government my be estopped (see note 80) from taking action against a person or party that will cause that person or party harm becouse of affirmative misconduct in the past. 32 Estoppel is the doctrine that prevents a person or orginization, in this case the Army, from future conduct that might cause anouther person or orginization harm becouse of past conduct of the person or orginization that is being harmed. 33 453 F.2d 197, 201 (5th Cir. 1971). 34 Watkins, 705; citations omitted. 35 722 F.2d 507, 509-10 (9th Cir. 1983) 36 Watkins, 705-706. 37 Ibid., 707. 38 Ibid., 706-709. 84 Ibid., 709. 40 Ibid., 709-711. 41 Watkins, 716. 42 370 U.S. 660, 82 S.Ct 1417 (1962) 43 Watkins, 712-724. 44 470 U.S. 1009, 1014 (1985) 45 688 F.Supp 1361, 1369 (1987) 46 703 F.Supp. 1372 (1989) 47 Watkins, 725; citation omitted. 48 Ibid. 49 Rowland, 470 U.S. at 1014, 105 S.Ct at 1376-77 (Brennan J. dissenting from denial of cert. (quoting Player, 457 U.S. at 216 n. 14, 102 S.Ct at 2394 n.24)); quoted in Watkins, 725. 50 Ibid. 51 Ibid., 725-726 52 Ibid., 727. 53 Army Regulation 635-200, 15-2(a), quoted in Watkins, 727. 54 Watkins, 726-728. 55 Dunn v. Blumstein, 405 U.S. 330, 342, 92 S.ct. 995, 1003, 31 L.Ed.2d 274 (1972) (quoting Shapiro, 394 U.S. at 634, 89 S.Ct. at 1331); quoted in Watkins, 728. 56 Watkins, 728-729.