Thomasson v. Perry

• Decision Date: 08 June 1995
• Docket Number: Civ. A. No. 95-252-A.
• Citation: 895 F. Supp. 820
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Lt. Paul G. THOMASSON, USN, Plaintiff, v. The Honorable William J. PERRY, Secretary of Defense, and The Honorable John H. Dalton, Secretary of the Navy, Defendants.

895 F. Supp. 820

Lt. Paul G. THOMASSON, USN, Plaintiff, v. The Honorable William J. PERRY, Secretary of Defense and The Honorable John H. Dalton, Secretary of the Navy, Defendants.

Civ. A. No. 95-252-A.

United States District Court, E.D. Virginia, Alexandria Division.

June 8, 1995.

Mark Lynch, Allan B. Moore, Georgia Kazakis, Robert D. Wick, Covington & Burling, Washington, DC, for plaintiff.

Helen Fahey, United States Attorney, Jeri K. Somers, Assistant United States Attorney, Alexandria, VA, Frank W. Hunger, Assistant Attorney General, John A. Rogovin, Deputy Assistant Attorney General, Washington, DC, David Anderson, Vincent M. Garvey, Michael J. Haungs, Civil Division, Department of Justice, Washington, DC, CDR Robert P. Monahan, LCDR Edward S. White Department of Navy, Office of Judge Advocate General, Alexandria, VA, for defendants.

MEMORANDUM OPINION

HILTON, District Judge.

This matter came before the Court on cross-motions for summary judgment. Plaintiff Lt. Paul G. Thomasson brings this action seeking permanent injunctive and declaratory relief to prevent the Defendants from discharging or otherwise removing him from active duty in the United States Navy as a result of his statement that he is a homosexual. The Plaintiff maintains that the National Defense Authorization Act for the Fiscal Year 1994, 10 U.S.C. § 654, known colloquially as the "Don't Ask Don't Tell" policy, is unconstitutional on its face and as applied to the Plaintiff in this action. Lt. Thomasson challenges the statute under the First Amendment, the Equal Protection Clause of the Fifth Amendment, the Due Process Clause of the Fifth Amendment, and the Administrative Procedure Act. This Court has jurisdiction under 28 U.S.C. §§ 1331 and 1346. Venue lies under 28 U.S.C. § 1391.

BACKGROUND OF THE ACT

On January 29, 1993, President Clinton directed then Secretary of Defense Les Aspin to re-evaluate the Department of Defense's ("DOD's") longstanding policy excluding homosexuals from service in the armed forces. From March through late July, 1993, the Armed Services Committees of the House and Senate held extensive public hearings on the matter. The Committees received testimony from military commanders, gay rights activists, experts in military personnel policy, professors, social scientists, interested civilians and members of the armed forces, and conducted a field visit to Norfolk Naval Complex.¹ On July 19, 1993, the President announced a new "Policy on Homosexual Conduct in the Armed Forces," which was subsequently enacted in the National Defense Authorization Act for Fiscal Year 1994, Pub.L. No. 103-160, § 571, 107 Stat. 1670-73, codified at 10 U.S.C. § 654 (1995). The Act was signed by the President on November 30, 1993. On December 22, 1993, DOD issued implementing Directives, modified slightly on February 28, 1994, and made effective on that date. On the same date, each of the DOD military services issued service-specific instructions to the field implementing the DOD Directives.

Section 571 of the Act sets forth the "Policy concerning homosexuality in the armed forces," which reflects Congress' policy determination made on the basis of the testimony and information garnered from the hearings. This Section contains fifteen findings which recognize, among other things, "military life is fundamentally different from civilian life," and, therefore, its "society includes numerous restrictions on personal behavior that would not be acceptable in civilian society." 10 U.S.C. § 654(a)(8)(B)(1995). Congress also noted that "success in combat requires military units that are characterized by high morale, good order and discipline, and unit cohesion." Id. The Act concludes that the longstanding exclusion from service in the military of persons who engage in, or demonstrate a propensity to engage in, homosexual conduct continues to be necessary because the presence of such service members "would create an unacceptable risk" to these fundamental components of military capability. Id. § 654(a)(15).

Accordingly, the statute provides for mandatory separation from the military if one or more of the following three findings is made:

(1) the member is found to have engaged, attempted to engage, or solicited another to engage, in homosexual acts; (2) "stated that he or she is a homosexual or bisexual ... unless 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," id. § 654(b)(2); or (3) "married or attempted to marry a person known to be of the same biological sex." Id. § 654(b)(3). As the language of Section 654(b)(2) indicates, and the legislative history confirms, a member's statement that he or she is a homosexual gives rise to a rebuttable presumption that the member engages in, or is likely to engage in, homosexual acts. S.Rep. No. 112, 103d Cong., 1st Sess., at 293-94 (1993), U.S.Code Cong. & Admin.News 1993 at pp. 2080-81.

The implementing Directive applicable to military officers, such as Plaintiff, is DOD Directive 1332.30, captioned "Separation of Regular Commissioned Officers," which the Navy has implemented.² This Directive provides that the military will not ask about an applicant's sexual orientation because homosexual orientation "is considered a personal and private matter and is not a bar to continued service ... unless manifested by homosexual conduct." DOD Dir. 1332.30, Encl. 2, ¶ C, at 2-1 (March 4, 1994). The Directive defines "Homosexual Conduct" as including "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." Id. Under the Directive, "propensity to engage in homosexual acts means more than an abstract preference or desire to engage in homosexual acts; it indicates a likelihood that a person engages in or will engage in homosexual acts." Id. Although a statement may demonstrate a propensity or intent to engage in homosexual conduct, the Directive provides the service member with an opportunity "to rebut the presumption by presenting evidence demonstrating that he or she does not engage in, attempt to engage in, have a propensity to engage in or intend to engage in homosexual acts." Id. ¶ C.1.b., at 2-2.

The Directive provides explicit guidance to administrative boards when assessing whether an officer has rebutted the presumption. The Directive instructs the boards to consider, among other things,

(1) Whether the officer has engaged in homosexual acts; (2) The officer's credibility; (3) Testimony from others about the officer's past conduct, character, and credibility; (4) The nature and circumstances of the officer's statement; and (5) Any other evidence relevant to whether the officer is likely to engage in homosexual acts.

Id. ¶ C.1.b.(1)-(5), at 2-2; see 10 U.S.C. § 654(b)(1)(A)-(E).

As the Senate Committee found, the new policy is essentially the same as the pre-1994 policy in that it provides for mandatory separation from the military on the basis of homosexual acts, marriages, or statements indicating a propensity to engage in homosexual conduct. The primary difference is that the DOD will not ask questions about sexual orientation as part of accession processing. The new policy also provides guidance on the conduct of investigations. S.Rep. No. 112, at 289-90, U.S.Code Cong. & Admin.News, at 2076-77.

On March 2, 1994, the day after the Navy implemented the DOD Directives with regard to service by homosexuals, Lt. Thomasson delivered a letter to four Navy admirals for whom he had served at the Bureau of Naval Personnel stating that he was a homosexual. Lt. Thomasson indicated in his letter that this characteristic was "more deeply rooted than all societal, religious, parental, or peer pressures can effect sic." I Rec.Tr., at 4-5. In accordance with military policy, the Navy instituted separation proceedings.

An administrative Board of Inquiry was convened at which Plaintiff was represented by military counsel as well as his current civilian counsel. The Board heard two days of testimony and argument and received into evidence several volumes of materials relating both to Lt. Thomasson's record and the Navy's policy on homosexuality. Lt. Thomasson submitted evidence of his service record, expert testimony regarding the meaning and nature of both homosexuality and the military's policy on homosexuality, and written and live testimony from 15 witnesses with whom he had served and worked over the course of his career. The Navy did not introduce any rebuttal evidence or dispute the substance of any of Lt. Thomasson's evidence. Indeed, during its phase of the proceedings, the Navy acknowledged that Lt. Thomasson had attained an "enviable" service record. I.Rec.Tr. at 0036, 0148. The Navy also acknowledged that there was no evidence that Lt. Thomasson had engaged in any "homosexual acts." Plaintiff refused, however, to introduce evidence to rebut the presumption that he engages in or has a propensity to engage in homosexual acts by reading an unsworn statement to the Board, stating: "I will not go further in degrading myself by disproving a charge about sexual conduct that no one has made." I Rec.Tr., at 141, IV Rec. T2A.

After hearing all of the evidence, the Board of Inquiry unanimously voted that Lt. Thomasson had made statements that indicated he "engages in, attempts to engage in, or has a propensity or intent to engage in homosexual acts" as prohibited by the policy and that he had not rebutted the presumption raised by those statements, thereby failing to show cause for retention. The Board accordingly recommended that Lt. Thomasson be honorably discharged.

On September 9, 1994, a three-member Board of Review convened to examine Lt. Thomasson's case. The Board of Review, without comment, unanimously upheld the Board of Inquiry's finding that Lt. Thomasson had failed to...