80 F.3d 915 (4th Cir. 1996), 95-2185, Thomasson v. Perry

Docket Nº:95-2185.
Citation:80 F.3d 915
Party Name:Paul G. THOMASSON, Lieutenant, United States Navy, Plaintiff-Appellant, v. William J. PERRY, Secretary of Defense; John H. Dalton, Secretary of the Navy, Defendants-Appellees, Union of American Hebrew Congregations; The American Jewish Congress; National Organization for Women; Now Legal Defense and Education Fund; Center for Women Policy Studies;
Case Date:April 05, 1996
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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80 F.3d 915 (4th Cir. 1996)

Paul G. THOMASSON, Lieutenant, United States Navy, Plaintiff-Appellant,

v.

William J. PERRY, Secretary of Defense; John H. Dalton,

Secretary of the Navy, Defendants-Appellees,

Union of American Hebrew Congregations; The American Jewish

Congress; National Organization for Women; Now Legal

Defense and Education Fund; Center for Women Policy

Studies; National Lesbian and Gay Law Association; Gay and

Lesbian Advocates and Defenders; American Civil Liberties

Union; Lambda Legal Defense and Education Fund;

Servicemembers Legal Defense Network; Iaomai, Incorporated;

Family Research Council; Iota Legal Defense Fund, Amici Curiae.

No. 95-2185.

United States Court of Appeals, Fourth Circuit

April 5, 1996

Argued Dec. 5, 1995.

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Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, District Judge. (CA-95-252-A).

ARGUED: Allan Baron Moore, Covington & Burling, Washington, D.C., for Appellant. Edwin Smiley Kneedler, United States Department of Justice, Washington, D.C., for Appellees. Professor William Allen Woodruff, Campbell University School of Law, Buies Creek, North Carolina, for Amicus Curiae Family Research Council. ON BRIEF: Mark H. Lynch, Covington & Burling, Washington, D.C., for Appellant. Frank W. Hunger, Assistant Attorney General, Helen F. Fahey, United States Attorney, Anthony J. Steinmeyer, John C. Hoyle, E. Roy Hawkens, Edward Himmelfarb, Civil Division, United States Department of Justice, Washington, D.C.; Lcdr. Edward S. White, Office of the Judge Advocate General, Department of the Navy, Washington, D.C., for Appellees. Melissa Wells-Petry, Washington, D.C., for Amicus Curiae Family Research Council. Chai R. Feldblum, Washington, D.C., for Amici Curiae Union of American Hebrew Congregations, et al. Beatrice Dohrn, Evan Wolfson, Jon W. Davidson, Lambda Legal Defense and Education Fund, New York City; Ruth E. Harlow, Marc E. Elovitz, Matthew Coles, American Civil Liberties Union Foundation, New York City, for Amici Curiae ACLU and Lambda Legal Defense and Education Fund. Jeffrey L. Bleich, Munger, Tolles & Olson, San Francisco, California; George C. Freeman, III, Hunton & Williams, Richmond, Virginia, for Amicus Curiae Servicemembers Legal Defense Network. Arthur C. Schulcz, Sr., Vienna, Virginia, for Amici Curiae IAOMAI and IOTA Legal Defense Fund.

Before WILKINSON, Chief Judge, and RUSSELL, WIDENER, HALL, MURNAGHAN, ERVIN, WILKINS, NIEMEYER, HAMILTON, LUTTIG, WILLIAMS, MICHAEL, and MOTZ, Circuit Judges, sitting en banc.

Affirmed by published opinion. Chief Judge WILKINSON wrote the majority opinion, in which Judges RUSSELL, WIDENER, MURNAGHAN, WILKINS, NIEMEYER, HAMILTON, LUTTIG, and WILLIAMS joined. Judge MURNAGHAN wrote a concurring opinion. Judge LUTTIG wrote a concurring opinion, in which Judges RUSSELL, WIDENER, WILKINS, HAMILTON, and WILLIAMS joined. Judge HALL wrote a dissenting opinion, in which Judges ERVIN, MICHAEL, and MOTZ joined.

OPINION

WILKINSON, Chief Judge:

Former Navy Lieutenant Paul G. Thomasson challenges the constitutional validity of Section 571 of the National Defense Authorization Act for Fiscal Year 1994, 10 U.S.C. § 654, and the Department of Defense Directive that governs homosexuality in the military, pursuant to which Thomasson received an honorable discharge from the Navy. We hold that the challenged statute is constitutional and that the discharge represented an appropriate exercise of military authority under the Act. In so holding, we affirm the judgment of the district court.

I.

A.

We shall set forth at the outset the relevant statutory framework in this case. In November, 1993, after lengthy deliberations, Congress approved and the President signed

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the National Defense Authorization Act, which codified a policy with respect to homosexuality and the armed forces. That policy came to be colloquially known as "Don't Ask, Don't Tell." In a series of findings that established the predicate for the policy, Congress declared that "[m]ilitary life is fundamentally different from civilian life," 10 U.S.C. § 654(a)(8), and that "[s]uccess in combat requires military units that are characterized by high morale, good order and discipline, and unit cohesion," 10 U.S.C. § 654(a)(6). Thus acknowledging that the demands of military life are distinctive, Congress further determined that "[t]he prohibition against homosexual conduct is a long-standing element of military law that continues to be necessary in the unique circumstances of military service." 10 U.S.C. § 654(a)(13). It also found that service members who demonstrate a "propensity or intent to engage in homosexual acts [ ] create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability." 10 U.S.C. § 654(a)(15).

In order to avoid this risk, the Act provides that members shall be separated from the armed services if one of three findings is made: the service member engaged or attempted to engage in homosexual acts, 10 U.S.C. § 654(b)(1); the service member married or attempted to marry a person of the same sex, 10 U.S.C. § 654(b)(3); or the service member "stated that he or she is a homosexual ... unless there is a further finding ... that 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." 10 U.S.C. § 654(b)(2). It is pursuant to this last provision--the "statements" provision--that Thomasson was honorably discharged from the Navy.

In December, 1993, the Department of Defense announced Directives implementing the Act. Like the statute, the applicable Directive provides for separation if an officer "has engaged in ... homosexual act[s]," "has married or attempted to marry" another of the same sex, or "has made a statement that he or she is a homosexual" and fails to demonstrate 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." DoD Dir. 1332.30, Encl. 2,p C, at 2-1, 2-2. The Directive also provides that the officer's statement "creates a rebuttable presumption that the officer engages in homosexual acts or has a propensity or intent to do so." DoD Dir. 1332.30, Encl. 2, p C.1.b., at 2-2. The officer is informed of this presumption and afforded an opportunity to rebut it by presenting appropriate evidence. Id. Whether the presumption has been rebutted is determined by a variety of factors: whether the officer has engaged in homosexual acts; the officer's credibility; testimony from others about the officer's past conduct; the nature and circumstances of the officer's statement; and any other evidence relevant to whether the officer has a propensity or intent to engage in homosexual acts. Id.

B.

Paul G. Thomasson, the plaintiff in this case, rose to the rank of Lieutenant in his ten year Naval career. Thomasson's service record has been a commendable one. Thomasson v. Perry, 895 F.Supp. 820, 823, 829 (E.D.Va.1995). Thomasson consistently received the highest possible performance ratings, he was one of a few junior officers selected for a Joint Chiefs of Staff Internship, and his supervisors, including senior Naval officers, praised his work. Rear Admiral Lee F. Gunn, for example, stated in an evaluation that Thomasson was "a true 'front runner' who should be groomed for the most senior leadership in tomorrow's Navy."

In early March, 1994, soon after reading the Navy message implementing the DoD Directives, Thomasson wrote and presented a letter to four Admirals for whom he served. Noting in the letter that "the time has come when I can remain silent no longer," Thomasson stated "I am gay" and expressed strong disagreement with the military's policy. In accordance with that policy, the Navy initiated separation proceedings against him. In May, 1994, a three-member Board of Inquiry convened and conducted a two day hearing. At the hearing, the Navy conceded

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that Thomasson had an "enviable" service record. But in seeking his separation, it relied both upon Thomasson's declaration that he was gay and the testimony of one of the Admirals who received the letter. The Navy advised the Board of the congressional findings that supported the Act and the meaning of the military's Directive. Under the Act and Directive, it argued, Thomasson's letter gave rise to a presumption that he had a propensity or intent to engage in homosexual acts which, if unrebutted, warranted separation.

For his part, Thomasson presented a copy of his service record, live and written testimony from co-workers who expressed admiration for his capabilities and professionalism, a statement recounting his career and his decision to write the letter announcing that he was gay, and expert testimony on both homosexuality and the meaning of the military's policy. But Thomasson did not, as the district court observed, tender evidence to rebut the presumption that arose from his declaration of homosexuality; that is, he presented no specific evidence on whether he engaged in or had a propensity or intent to engage in homosexual acts. 895 F.Supp. at 823. In fact, Thomasson's statement averred that he would "not go further in degrading myself by disproving a charge about sexual conduct that no one has made." Id. The Navy argued that this defense fell short of rebutting the presumption that arose from Thomasson's declaration of his homosexuality, and therefore that he should be honorably discharged.

The Board...

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