Pruitt v. Weinberger, CV 83-2035-WPG.

• Citation: 659 F. Supp. 625
• Decision Date: 17 April 1987
• Docket Number: No. CV 83-2035-WPG.,CV 83-2035-WPG.
• Parties: Rev. Dusty PRUITT, Captain, U.S.A.R., et al., Plaintiffs, v. Caspar WEINBERGER, Secretary of Defense, et al., Defendants.
• Court: U.S. District Court — Central District of California

659 F. Supp. 625

Rev. Dusty PRUITT, Captain, U.S.A.R., et al., Plaintiffs, v. Caspar WEINBERGER, Secretary of Defense, et al., Defendants.

No. CV 83-2035-WPG.

United States District Court, C.D. California.

April 17, 1987.

Susan McGreivy, Fred Okrand, William G. Smith, ACLU Foundation of Southern California, Michael Wetherbee, Los Angeles, Cal., for plaintiffs.

Richard K. Willard, Asst. Atty. Gen., Robert C. Bonner, U.S. Atty., Eric A. Nobles, Asst. U.S. Atty., Los Angeles, Cal., Vincent M. Garvey, Stanley E. Alderson, Attys., Dept. of Justice, Civil Div., Washington, D.C., for defendants.

MEMORANDUM OF DECISION

GRAY, District Judge.

The plaintiff was a captain in the United States Army Reserve until she was discharged, on July 19, 1986, on the ground that she was a homosexual. She filed this action seeking declaratory relief adjudging that Army Regulation 135-175 ("AR 135-175"), upon which her discharge was based, is unconstitutional because it violates the First Amendment, both facially and as applied to the plaintiff and to her right to privacy.

Since the filing of this action, the plaintiff has adequately exhausted her administrative remedies and now moves for summary judgment; the defendant has countered with a motion to dismiss the action; and both motions have been submitted to the Court for decision. The plaintiff's motion will be denied and the Motion to Dismiss granted.

Factual Background

On January 27, 1983, the plaintiff was the subject of an article published in the Los Angeles Times entitled Pastor Resolves Gay, God Conflict, which described her as a "lesbian and the pastor of a non-denominational Christian church ... whose congregation is 85% gay and lesbian." The article also reports that the plaintiff had twice gone through a marriage ceremony for homosexuals. As a result of the article, an investigation was initiated by the Army to determine whether or not it should suspend the plaintiff's scheduled promotion to major, revoke her security clearance, and ultimately remove her from the Army Reserve pursuant to AR 135-175. That regulation provides for separation of a member who has engaged in homosexual acts, has admitted that she is a homosexual as defined in the regulation, or has married or attempted to marry a person of the same sex. AR 135-175, § VII, ¶ 2-39. The regulation defines a homosexual as "a person, regardless of sex, who engages in, desires to engage in, or intends to engage in homosexual acts." AR 135-175, § VII, ¶ 2-38(a).

A formal hearing was conducted by an administrative board on September 7, 1985. The board concluded that separation was warranted based on an admission the plaintiff made in a letter to her commanding officer, wherein she acknowledged that she is a homosexual within the meaning of the subject regulation (Findings of Board of Officers, Summarized Proceedings of Officer Elimination Action, dated Sept. 7, 1985, at page 3). The board's recommendation was approved by the Commander, Sixth Army, and accepted by the review authority at the Department of the Army level. Ms. Pruitt was honorably discharged from the reserve, effective July 19, 1986.

Discussion

The constitutionality of the discharge of a member of the Armed Forces because of acts of homosexuality has been upheld in Beller v. Middendorf, 632 F.2d 788 (9th Cir.1980). However, there is no showing that the present plaintiff has committed any such acts. Instead, her discharge stemmed from her acknowledgement that she is a homosexual, as defined in the subject regulation. This means that she "desires to engage in, or intends to engage in, homosexual acts." The plaintiff...