124 F.3d 1126 (9th Cir. 1997), 96-15855, Holmes v. California Army Nat. Guard

Docket Nº:96-15855, 96-15726 and 96-35314.
Citation:124 F.3d 1126
Party Name:Op. Serv. 7165, 97 Daily Journal D.A.R. 11,571 Andrew HOLMES, First Lieutenant, Plaintiff-Appellee, v. CALIFORNIA ARMY NATIONAL GUARD; Tandy Bozeman, Major, in his official capacity; Pete Wilson, Governor, in his official capacity, Defendants-Appellants. Andrew HOLMES, First Lieutenant, Plaintiff-Appellee, v. CALIFORNIA ARMY NATIONAL GUARD; Tandy B
Case Date:September 05, 1997
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1126

124 F.3d 1126 (9th Cir. 1997)

Op. Serv. 7165,

97 Daily Journal D.A.R. 11,571

Andrew HOLMES, First Lieutenant, Plaintiff-Appellee,

v.

CALIFORNIA ARMY NATIONAL GUARD; Tandy Bozeman, Major, in

his official capacity; Pete Wilson, Governor, in

his official capacity, Defendants-Appellants.

Andrew HOLMES, First Lieutenant, Plaintiff-Appellee,

v.

CALIFORNIA ARMY NATIONAL GUARD; Tandy Bozeman, Major, in

his official capacity; Pete Wilson, Governor, in his

official capacity; U.S. Army National Guard; United States

of America; William S. Cohen, Secretary of Defense,

Defendants-Appellants.

Richard P. WATSON, Lieutenant, Plaintiff-Appellant,

v.

William S. COHEN, Secretary of Defense; John Dalton,

Secretary of the Navy; United States of America,

Defendants-Appellees.

Nos. 96-15855, 96-15726 and 96-35314.

United States Court of Appeals, Ninth Circuit

September 5, 1997

Submission vacated Aug. 16, 1996. Argued and Submitted July 8, 1996.

Submission vacated Aug. 16, 1996.

Resubmitted April 7, 1997.

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Christopher J. Bakes, Douglas G. Chapman III, Bakes & Chapman, San Francisco, CA, for appellant Watson.

Kim M. Settles, Deputy Attorney General, Oakland, CA, for State appellants in Holmes.

E. Roy Hawkens, Attorney, United States Department of Justice, Washington, DC, for Federal appellants in Holmes and the appellees in Watson.

Todd E. Thompson and L. Jay Kuo, Howard, Rice, Nemerovski, Canady, Falk & Rabkin, San Francisco, CA, for appellee Holmes.

Melissa Wells-Petry, Washington, DC, for amicus curiae Family Research Council.

Karen M. McGaffey, Bogle & Gates P.L.L.C., Seattle, WA, for amicus curiae Northwest Women's Law Center and Kirk Childress, Servicemembers Legal Defense Network, Washington, DC, for amicus curiae Servicemembers Legal Defense Network.

Appeals from the United States District Court for the Northern District of California; Saundra B. Armstrong, District Judge, Presiding. D.C. No. CV-95-00688-SBA.

Appeal from the United States District Court for the Western District of Washington; Thomas S. Zilly, District Judge, Presiding. D.C. No. CV-95-01141-TSZ.

Before: REAVLEY, [*] REINHARDT, and WIGGINS, Circuit Judges.

Opinion by Judge WIGGINS; Dissent by Judge REINHARDT.

WIGGINS, Circuit Judge:

We review the constitutional challenges of two service members to the military's current "don't ask/don't tell" policy on homosexuals. 1 Pursuant to the policy, Lieutenant Richard P. Watson was discharged from the United States Navy and First Lieutenant Charles Andrew Holmes was discharged from the California Army National Guard ("CANG") and the United States Army National Guard ("USANG"). With respect to Watson, the district court granted summary judgment in favor of the Navy, holding that his discharge was essentially based on homosexual conduct and, therefore, the "don't ask/don't tell" policy was constitutional as it applied to him. Watson v. Perry, 918 F.Supp. 1403 (W.D.Wash.1996). With respect to Holmes, the district court granted summary judgment in Holmes's favor as to his claims for violation of his constitutional rights to equal protection and free speech, holding that his discharge was unconstitutional because it was based solely on his statement that he is homosexual. Holmes v. California Army Nat'l Guard, 920 F.Supp. 1510 (N.D.Cal.1996).

Watson and the defendants in Holmes appeal the respective district court orders, addressing the constitutionality of 10 U.S.C. § 654(b)(2) and its implementing regulations. 2 We have jurisdiction under 28 U.S.C. § 1291. On our own motion, we consolidated the appeals. Because we conclude that § 654(b)(2) and its implementing regulations

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are constitutionally valid, we affirm the district court in Watson and reverse in Holmes.

BACKGROUND

The "Don't Ask/Don't Tell" Policy

The present policy regarding homosexuals in the military, commonly known as the "don't ask/don't tell" policy, is the product of extensive deliberation by Congress and the President. When it enacted the policy, Congress made a series of legislative findings, including the following: (1) that military life is fundamentally different from civilian life in that military society is characterized by numerous restrictions on personal behavior that would not be acceptable in civilian society, 10 U.S.C. § 654(a)(8)(B); (2) that standards of conduct for members of the armed forces must apply at all times to members whether on or off base and whether on or off duty, id. § 654(a)(10); (3) that the potential duties of the armed forces make it necessary for members of the armed forces to accept involuntarily living conditions characterized by forced intimacy with little or no privacy, id. § 654(a)(12); (4) that "[t]he prohibition against homosexual conduct is a longstanding element of military law that continues to be necessary in the unique circumstances of military service," id. § 654(a)(13); and (5) that "[t]he presence in the armed forces of persons who demonstrate a propensity or intent to engage in homosexual acts would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability," id. § 654(a)(15).

The "don't ask/don't tell" policy differs from the military's former policy on homosexuals in that the statement, "homosexuality is incompatible with military service," was eliminated. See DOD Directive 1332.14, 32 C.F.R. pt. 41, App. A at 93 (1981) ("old policy"). As a result, the military no longer asks new recruits questions about their sexual orientation. Also unlike the old regulatory policy, the regulations implementing the new policy stipulate that sexual orientation is considered a personal and private matter, and does not bar entry into service or continued service, unless manifested by homosexual conduct. DOD Directive 1332.30 at 2-1(C). However, the "don't ask/don't tell" policy continues to require discharge of any service member (1) who engages in or intends to engage in homosexual acts, see 10 U.S.C. § 654(b)(1); DOD Directive 1332.30 at 2-2(C)(1)(a) (hereinafter "acts prong"); (2) who makes a statement that he is homosexual and fails to rebut the presumption, raised by that statement, that he has a propensity to engage in homosexual acts, see 10 U.S.C. § 654(b)(2); DOD Directive 1332.30 at 2-2(C)(1)(b) (hereinafter "statement prong"); or (3) who has married or attempted to marry a person of the same biological sex, see 10 U.S.C. § 654(b)(3); DOD Directive 1332.20 at 2-2(C)(1)(c). 3 "Homosexual" is defined as "a person, regardless of sex, who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual

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acts, and includes the terms 'gay' and 'lesbian.' " Id. § 654(f)(1). "Homosexual act" means:

(A) any bodily contact, actively undertaken or passively permitted, between members of the same sex for the purpose of satisfying sexual desires; and

(B) any bodily contact which a reasonable person would understand to demonstrate a propensity or intent to engage in an act described in subparagraph (A).

Id. § 654(f)(3).

The DOD Directive under which Watson and Holmes were discharged provides, among other things:

Homosexual conduct is grounds for separation from the Military Services under the terms set forth in paragraph C.1.b, below. Homosexual conduct includes homosexual acts, a statement by a member that demonstrates a propensity or intent to engage in homosexual acts, or a homosexual marriage or attempted marriage. A statement by a member that demonstrates a propensity or intent to engage in homosexual acts is grounds for separation not because it reflects the member's sexual orientation, but because the statement indicates a likelihood that the member engages in or will engage in homosexual acts. A member's sexual orientation is considered a personal and private matter, and is not a bar to continued service under this section unless manifested by homosexual conduct in the manner described in section C.1.

DOD Directive 1332.30 at 2-1(C) (emphasis added). The Directive provides that the statement, "I am gay," is sufficient to trigger the presumption. Id. at 8-1(B)(4)(b). 4 Paragraph (C)(1)(b) spells out the findings required to rebut the presumption under the acts and statement prongs of § 654(b) in virtually identical terms to § 654(b)(1), (2), (3). Id. at 2-2(C)(1)(a)-(b). 5

Facts and Prior Proceedings

Watson. Watson enlisted in the United States Navy in 1981 and was promoted to the rank of lieutenant in 1991. His fourteen-year Naval career is marked with many awards and honors. Before initiation of his discharge proceedings, Watson served as an Assistant Professor of Naval Science in the Naval Reserve Officers Training Corps. On October 28, 1994, Watson delivered to his commanding officer a one-page document, entitled "Submission of Sexual Orientation Statement," in which he stated: "I have a homosexual orientation. I do not intend to rebut the presumption." The presumption referred to by Watson is the rebuttable presumption in 10 U.S.C. § 654(b)(2), which provides that a service member may rebut his statement of homosexuality by demonstrating that he is not a person who engages in,

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attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts. Watson stated that he submitted his statement of sexual orientation because of his commitment to honesty and desire to eliminate any potential for blackmail attempts in the future.

Based on Watson's letter, the Navy issued a show cause order, requiring Watson to show cause before a three-member Board of Inquiry why he should be retained in the Navy....

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