Steffan v. Cheney

• Citation: 780 F. Supp. 1
• Decision Date: 09 December 1991
• Docket Number: Civ. A. No. 88-3669-OG.
• Parties: Joseph C. STEFFAN, Plaintiff, v. Dick CHENEY, Secretary of Defense, et al., Defendants.
• Court: United States District Courts. United States District Court (Columbia)

780 F. Supp. 1

Joseph C. STEFFAN, Plaintiff, v. Dick CHENEY, Secretary of Defense, et al., Defendants.

Civ. A. No. 88-3669-OG.

United States District Court, District of Columbia.

December 9, 1991.

Marc Wolinsky, Wachtell, Lipton, Rosen & Katz and Sandra J. Lowe, Lambda Legal Defense and Educ. Fund, Inc., New York City, Calvin Steinmetz, Isicson, Steinmetz & Weinberg, Washington, D.C., for plaintiff.

David M. Glass, Vincent M. Garvey, U.S. Dept. of Justice, Stuart M. Gerson, Asst. Atty. Gen., Jay B. Stephens, U.S. Atty., Washington, D.C., for defendants.

MEMORANDUM

GASCH, Senior District Judge.

This matter is before the Court on defendants' motion for judgment on the pleadings, or in the alternative, for summary judgment. The plaintiff has filed a cross-motion for summary judgment. The case has been fully briefed and argued in open court.

This suit is about the constitutionality of classifications by the military on the basis of sexual orientation. The plaintiff is suing for his diploma from the Naval Academy, his commission as an Ensign in the United States Navy, a declaration that his resignation was null and void, and for a declaration that the Department of Defense Directives 1332.14 and 1332.30, and all other regulations applied to the plaintiff prohibiting those with a homosexual orientation¹ from serving in the Navy or attending the Naval Academy, are violations of the equal protection component of the fifth amendment to the Constitution.²

On the merits, the Court has concluded for the reasons stated below that defendants are entitled to judgment as a matter of law. The Court will therefore grant defendants' motion for summary judgment.

Background

The plaintiff was a midshipman in good standing at the United States Naval Academy in Annapolis, Maryland, when in March 1987, a few months before his expected graduation, he learned that he was under investigation by the Naval Investigative Service ("NIS") for his alleged homosexuality.³ The NIS had received a report from the Academy that plaintiff had admitted his homosexuality to another midshipman. Upon learning of the NIS investigation, the plaintiff sought advice from a friend, a Chaplain at the Academy. After plaintiff admitted his homosexuality to the Chaplain, the Chaplain offered to help plead his case for a timely graduation with the Commandant of Midshipmen. This was accomplished, but on March 23, 1987, plaintiff was told by the Commandant that graduation was not going to be possible because of the servicewide regulations promulgated in 1981 under Department of Defense ("DoD") Directive 1332.14, pt. 1, § H, ¶ 1(a), reprinted in 32 C.F.R., pt. 41, app. A, which prohibit homosexuals from serving in the Armed Forces.⁴

After hearing from the Commandant himself that graduation was impossible, plaintiff indicated that he would want to leave the Academy "as soon as possible." Def. Motion, 6 (quoting Second Statement of Capt. H.W. Habermeyer, Jr. (Mar. 23, 1987), at 1); see Steffan I, 733 F.Supp. at 116.⁵ As a courtesy to an accomplished young man, the Commandant arranged for an expedited review process for plaintiff in order to accommodate his wishes. The Brigade Military Board met the following day, March 24, 1987, to review the Steffan case. At that hearing plaintiff admitted his homosexuality on the record and stated that he did not "desire to be commissioned as an officer of the Naval service by continuing as a midshipman of the Naval Academy." Hearing Transcript (Mar. 24, 1987) (affidavit of Marc Wolinsky, filed October 16, 1989, Ex. K, 6); see Steffan I, 733 F.Supp. at 116. When asked by Captain Habermeyer on March 23, 1987, "Are you willing to state at this time that you are a homosexual?", plaintiff responded, "Yes, sir." Pl. Mem. at 12.⁶ At the Brigade Military Performance Board on March 24, 1987, Deputy Commandant, Captain Konetzni asked plaintiff: "I'd like your word, are you a homosexual?" Again plaintiff responded: "Yes, sir." Id. at 15; Wolinsky Aff., Ex. K. at 6.

On April 1, 1987, the Naval Academy Academic Board convened to consider the plaintiff's case. By unanimous vote the Academic Board determined that the plaintiff had "insufficient aptitude to become a commissioned officer in the naval service." Def. Motion at 7, quoting Memorandum from Superintendent to plaintiff (Apr. 1, 1987), at 1. The Superintendent of the Academy wrote the plaintiff a memorandum that same day and advised the plaintiff of his intention to recommend a discharge to the Secretary of the Navy. Id. The Superintendent, however, gave the plaintiff the option of submitting a qualified resignation to the Secretary, in which case the Superintendent would forego submitting his recommendation of discharge. The benefits of resignation were discussed with plaintiff. If he resigned, he would be honorably discharged; if not, his would be an involuntary discharge. It was made clear to plaintiff that an involuntary discharge would have a notation on his record that would indicate the plaintiff was a homosexual, whereas, if he resigned, no such notation would appear. Id. at 7-8.

On April 1, 1987, the plaintiff submitted his qualified resignation.⁷ On May 6, 1987, it was accepted by an Assistant Secretary of the Navy. More than eighteen months later, on December 9, 1988, the plaintiff wrote the Secretary of the Navy requesting that his resignation be withdrawn. The present action was filed December 28, 1988. The Secretary denied the request to withdraw the resignation in February of 1989.

Discussion

I. EQUAL PROTECTION

This is not a case of first impression. This may be the first time that a student at one of the service academies of the United States Armed Forces was not permitted to graduate because of his admitted status as a homosexual, but it is certainly not the first time that the regulations in question have been reviewed for their lawfulness on an equal protection challenge under the fifth amendment. See Ben-Shalom v. Marsh, 881 F.2d 454 (7th Cir.1989), cert. denied, 494 U.S. 1004, 110 S.Ct. 1296, 108 L.Ed.2d 473 (1990) (lesbian denied re-enlistment in Army); Dronenburg v. Zech, 741 F.2d 1388 (D.C.Cir.1984) (Naval petty officer discharged for admitted homosexual conduct with recruit on Navy property); High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563 (9th Cir. 1990) (class of homosexuals working in defense industries subject to expanded investigations for security clearances); Woodward v. United States, 871 F.2d 1068 (Fed. Cir.1989) (Navy reserve released from active duty after being seen associating with an enlisted man awaiting discharge for homosexuality); Rich v. Secretary of Army, 735 F.2d 1220 (10th Cir.1984) (serviceman honorably discharged for fraudulent enlistment when Army later learned he was homosexual despite earlier denial upon enlistment).

The plaintiff maintains that homosexuals, gay men and lesbians if you will, are a "suspect" or "quasi-suspect"⁸ class of persons who as a result of such classification are entitled to have the government action complained of, or regulation as applied as in this case, subject to a form of heightened scrutiny on an equal protection challenge. Plaintiff seeks to distinguish all of the cases cited above, as well as others, on the grounds that each involved some kind of homosexual conduct, while in this case it is the plaintiff's status as a homosexual that is at issue.

From the landmark classification case of Cleburne v. Cleburne Living Center, Inc., there are three recognized levels of review that are used in equal protection cases: "strict scrutiny," "heightened review" (also called "intermediate scrutiny") and rational basis review. Cleburne, 473 U.S. at 440-42, 105 S.Ct. at 3254-58. As stated in Ben-Shalom v. Marsh, "in general, a government regulation will be presumed to be valid under equal protection analysis as long as the classification drawn by the regulation `rationally furthers some legitimate, articulated state purpose.'" Ben-Shalom, 881 F.2d at 463 (quoting McGinnis v. Royster, 410 U.S. 263, 270, 93 S.Ct. 1055, 1059, 35 L.Ed.2d 282 (1973) (legislative classification of state prisoners denying them credit for "good time" during presentence incarceration in county jails upheld on equal protection challenge)).

Rational basis review is a deferential standard of scrutiny that is "grounded in a constitutional presumption that `improvident classifications will eventually be rectified by the democratic processes.'" Ben-Shalom, 881 F.2d at 463 (quoting Cleburne, 473 U.S. at 440, 105 S.Ct. at 3254). The warning in Cleburne is clear, however. When government conduct or a regulation makes classifications that are based on "factors which are so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy," then a form of heightened scrutiny is used in lieu of rational basis review. Id.

In the case at bar, as in Ben-Shalom, the issue has been a bit clouded by a debate and discovery over whether the defendants' classification of the plaintiff went to his conduct as a homosexual or his status as a homosexual. The ongoing NIS investigation of plaintiff's homosexual conduct was discontinued upon the acceptance of his resignation from the Navy. Plaintiff declined to answer questions at deposition about whether he had engaged in homosexual conduct at the Academy. As a result, this is primarily a case about the plaintiff's status as a homosexual.

A. Homosexuals not a "Suspect" or "Quasi-suspect" Class

The district court in Ben-Shalom held that homosexuals were a suspect class, a holding which was subsequently reversed by the Seventh Circuit. Ben-Shalom, 881 F.2d at 463-64. There is ample authority to support the defendants' position in this case that those with a homosexual orientation are not a suspect class. Id.; Rich, 735 F.2d at 1229; National Gay Task Force v. Board of Education, 729 F.2d...