881 F.2d 454 (7th Cir. 1989), 88-2771, Ben-Shalom v. Marsh

Docket Nº:88-2771, 89-1213.
Citation:881 F.2d 454
Party Name:Miriam BEN-SHALOM, Plaintiff-Appellee, v. John O. MARSH, Jr., Secretary of the Army, Vance Coleman, Commanding Officer, H.Q. 84th Division, U.S. Army Reserve, and John Allen, Lt. Colonel, Commanding Officer, 5091st U.S. Army Reception Battalion, Defendants-Appellants.
Case Date:August 07, 1989
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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881 F.2d 454 (7th Cir. 1989)

Miriam BEN-SHALOM, Plaintiff-Appellee,


John O. MARSH, Jr., Secretary of the Army, Vance Coleman,

Commanding Officer, H.Q. 84th Division, U.S. Army Reserve,

and John Allen, Lt. Colonel, Commanding Officer, 5091st U.S.

Army Reception Battalion, Defendants-Appellants.

Nos. 88-2771, 89-1213.

United States Court of Appeals, Seventh Circuit

August 7, 1989

Argued May 18, 1989.

As Amended on Denial of Rehearing and Rehearing In Banc Oct.

11, 1989.

Page 455

Patrick Berigan, Angermeier & Rogers, Milwaukee, Wis., for plaintiff-appellee.

Vincent M. Garvey, Dept. of Justice, Civ. Div., Appellate Section, Washington, D.C., for Vance Coleman, Commanding Officer, H.Q. 84th Division, U.S. Army Reserve.

John E. Fryatt, U.S. Atty., Milwaukee, Wis., Kenneth C. Kohl, Dept. of Justice, Civ. Div., Appellate Section, Washington, D.C., for John Allen, Lt. Colonel, Commanding Officer, 5091st U.S. Army Reception Battalion.

John C. Hoyle, Dept. of Justice, Civ. Div., Appellate Staff, Washington, D.C., for John O. Marsh, Secretary of the U.S. Army.

Arvid E. Roach, II, Jennifer S. Divine, Covington & Burling, Laura A. Foggan, Wiley, Rein, Fielding, Washington, D.C., for Women's Legal Defense Fund amicus curiae.

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Nan D. Hunter, William B. Rubenstein, New York City, Gretchen Miller, Milwaukee, Wis., Julie M. Randolph, Martin Buchanan, Remcho, Johansen & Purcell, San Francisco, Cal., for American Civil Liberties Union of Illinois amicus curiae.

Fred M. Blum, Julie M. Randolph, Remcho, Johansen & Purcell, San Francisco, Cal., Donald N. Bersoff, Jenner & Block, Washington, D.C., for American Jewish Congress amicus curiae.

Donald N. Bersoff, David W. Ogden, Jenner & Block, Washington, D.C., for American Psychological Ass'n amicus curiae.

Before WOOD, Jr., EASTERBROOK, and KANNE, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge.

This case concerns an avowed homosexual, a lesbian, who has persistently sought and now secured, with district court assistance, reenlistment in the Army. 1 The Army under its regulations seeks to void that reenlistment. As might be expected the issue is controversial, as evidenced by the number of amici curiae all supporting plaintiff Miriam Ben-Shalom. 2 The district court has entered a permanent injunction requiring the Army to continue the reenlistment of plaintiff Ben-Shalom without regard to her sexual orientation.


Plaintiff is presently a sergeant in the United States Army Reserve performing duty with the 5091st U.S. Army Reception Battalion in Milwaukee, Wisconsin. There is no complaint about the actual performance of her military duties.

In 1976 plaintiff was discharged from the reserves pursuant to then-existing Army Regulation (AR) 135-178, para. 7-5(b)(6), which provided for the discharge of any soldier who "evidenced homosexual tendencies, desire or interest, but is without overt homosexual acts." Plaintiff promptly filed suit claiming that her discharge under that regulation violated her constitutional rights to free speech and privacy. Judge Evans viewed those regulations as overbroad under the First Amendment, and also as violative of plaintiff's constitutional right to privacy that, in Judge Evans' opinion, protected Ben-Shalom's sexual preferences. There was found no proof of nexus between sexual preference and military capabilities. Plaintiff was ordered reinstated by Judge Evans for the remaining eleven months of her enlistment. Ben-Shalom v. Secretary of Army, 489 F.Supp. 964 (E.D.Wis.1980) (Ben-Shalom I ).

The Army did not appeal and the district court reinstatement order became final. After the Army failed to comply with the reinstatement order plaintiff sought to have the Army held in contempt. The district court, however, declined to enforce the reinstatement order, and instead ordered compensation for plaintiff's uncompleted enlistment term. That response did not satisfy plaintiff. On appeal, this court held in an unpublished order that the district court improperly used the civil contempt proceeding to reopen the legal or factual basis of the original reinstatement order. The district court's judgment was therefore vacated and the case remanded. This court suggested in connection with the remand that the Army's only remedy was pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, but expressed no opinion on the merits of that possible effort. On remand the Army did test that remedy but failed in the district court, and subsequently in this court on appeal. Ben-Shalom v. Secretary of Army, 826 F.2d 722 (7th Cir.1987). It was pointed out that a Rule 60(b) motion is no substitute for appeal and cannot be used merely to relitigate the merits of the case. The district court was therefore affirmed in its latest judgment, requiring that plaintiff actually be reinstated for the eleven-month balance of her original enlistment and not just compensated for it. The

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Army complied, but because protracted litigation delayed her reinstatement signficantly, plaintiff's enlistment did not expire until August 1988. That is where the current legal chapter begins.

While still serving her original enlistment (as extended by the district court's order) plaintiff sought to reenlist for another full six-year term. In response, plaintiff's commanding officer notified her in March 1988 that the Army was considering whether she should be barred from reenlistment under AR 140-111, Table 4-2, Rule E, on the ground that she is an admitted homosexual. 3 This is a new regulation, adopted after the prior regulation had been found unconstitutional. It governs the immediate reenlistment or extension of enlistment in the U.S. Army Reserve. That notice further advised plaintiff that her admission of homosexuality gave rise to a presumption that she was a homosexual, and that therefore she had thirty days within which to submit a response rebutting that presumption. In her response to the Army's notice, plaintiff again admitted that she is a lesbian. After considering her response, the Army notified plaintiff on April 7, 1988 that accordingly she was barred from reenlistment.

A month later plaintiff filed this new lawsuit, this time to be heard by Judge Gordon, charging that the regulation, which makes the status of homosexuality a nonwaivable disqualification to reenlistment regardless of conduct, violates plaintiff's constitutional rights under the First and Fifth Amendments. The First Amendment claim was based on the fact that the only evidence of plaintiff's homosexuality was her own admission. Plaintiff argued that the new regulation had the effect of chilling her freedom of expression as she would no longer be able to make statements regarding her sexual orientation, statements that she would otherwise be free to make. Alternatively, plaintiff alleged that the regulation violated her Fifth Amendment right to equal protection of the law because the regulation discriminates on its face against a discrete and insular group to which plaintiff belongs. Plaintiff therefore sought a declaratory judgment that the pertinent part of the regulation is unconstitutional on its face, and asked that the Army be affirmatively enjoined to consider plaintiff's reenlistment application without regard to her sexual orientation.

On August 3, 1988, a few days before plaintiff's extended enlistment was to expire, Judge Gordon granted her a temporary injunction to preserve her enlistment status quo pending final resolution of her case, and ordered the Army to consider plaintiff's reenlistment request without regard to her sexual orientation. The Army did as it was directed by the district court and found plaintiff to be otherwise qualified. However, the Army, instead of granting her a new reenlistment as ordered (which it considered to be a violation of its superseding regulations that had not yet been declared invalid), merely extended plaintiff's original enlistment pending further review. In response plaintiff sought successfully to have the Army held in civil contempt for failing to fully comply with

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the court's order. A fine of $500 per day was imposed by the district court for plaintiff's benefit. The district court delayed the imposition of the fine to permit the Army time to apply to this court for a stay. Rather than seek a stay, the Army complied with the order of the district court, conditionally reenlisted plaintiff for a new six-year term, and then appealed. Plaintiff's new reenlistment term was subject to the condition that if the district court's order was subsequently vacated, reversed, set aside, or otherwise terminated her new enlistment would be voided.

On January 10, 1989 the district court concluded the matter by holding that the new regulation was unconstitutional on both grounds alleged by plaintiff. 4 Her First Amendment rights were found to have been violated by the Army's reliance only upon her admission of homosexuality without evidence that she had in fact committed homosexual acts. The district court also found that the Army had shown no basis to support its contention that acknowledgement of homosexuality constitutes reliable evidence of propensity to engage in homosexual conduct. In regard to plaintiff's equal protection claim, the district court found that a grouping of individuals based on sexual orientation constitutes a suspect classification, but that it was not necessary to subject that classification to strict scrutiny because, in any event, the new regulation classification was not rationally related to any articulated legitimate governmental interest. Judge Gordon held that any regulation on the subject, in order to be valid, had to be targeted at sexual conduct, not just homosexual...

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