Able v. U.S.
| Decision Date | 01 July 1996 |
| Docket Number | Nos. 799,D,1082,s. 799 |
| Citation | 88 F.3d 1280 |
| Parties | 71 Fair Empl.Prac.Cas. (BNA) 419, 65 USLW 2030 Lieutenant Colonel Jane ABLE, Petty Officer Robert Heigle, First Lieutenant Kenneth Osborn, Sergeant Steven Spencer, Lieutenant Richard von Wohld, and Seaman Werner Zehr, Plaintiffs-Appellees/Cross-Appellants, v. UNITED STATES of America, William J. Perry, Secretary of Defense, Federico F. Pena, Secretary of Transportation, Defendants-Appellants/Cross-Appellees. ockets 95-6111, 95-6141. |
| Court | U.S. Court of Appeals — Second Circuit |
Edwin S. Kneedler, Deputy Solicitor General, Washington, DC (Zachary W. Carter, United States Attorney, Brooklyn, NY, Frank W. Hunger, Assistant Attorney General, Anthony J. Steinmeyer, John C. Hoyle, E. Roy Hawkens, Edward Himmelfarb, Lowell V. Sturgill Jr., Department of Justice, Washington, DC, Maj. Douglas Mickle, United States Army, Arlington, VA, on the brief), for Defendants-Appellants/Cross-Appellees.
Matthew A. Coles, New York City (Ruth E. Harlow, Marc E. Elovitz, American Civil Liberties Union Foundation, Beatrice Dohrn, Evan Wolfson, Lambda Legal Defense & Education Fund, David H. Braff, Michael Lacovara, Penny Shane, Edward Harris, Ann Kenny, Michael Johnson, New York City, on the brief), for Plaintiffs-Appellees/Cross-Appellants.
Melissa Wells-Petry, Washington, DC, on the brief, for Amicus Curiae Family Research Council.
Arthur A. Schulcz, Sr., Vienna, VA, on the brief, for Amici Curiae Iamoai, Inc. and Iota Legal Defense Fund.
Karen Honeycutt, James D. Esseks, Vladeck, Waldman, Elias & Engelhard, P.C., New York City, on the brief, for Amicus Curiae Servicemembers Legal Defense Network.
Franklin Poul, Dana B. Klinges, Wolf, Block, Schorr & Solis-Cohen, Philadelphia, PA, on the brief, for Amicus Curiae Unitarian Universalist Association.
Chai R. Feldblum, Washington, DC, on the brief, for Amici Curiae Human Rights Campaign Fund, Union of American Hebrew Congregations, American Jewish Congress, United Church of Christ Office for Church in Society, NOW Legal Defense and Education Fund, Center for Women Policy Studies, National Gay and Lesbian Task Force, National Lesbian and Gay Law Association, and Gay and Lesbian Advocates and Defenders.
Before: FEINBERG, WALKER, and LEVAL, Circuit Judges.
This appeal concerns the constitutionality of 10 U.S.C. § 654, the popularly termed "Don't Ask, Don't Tell" policy governing the participation of homosexuals in military service, and the accompanying directives issued by the Department of Defense ("DoD") and the Secretary of Transportation. The genesis of this legislation lay in a much-publicized debate, both in government and society at large, over whether homosexuals should be permitted to serve in the military and under what conditions such service should take place. Although there has been a great deal of litigation in the federal courts over the former policy, we are one of the first appellate courts to address the recent Congressional enactment, which is the first statute to address directly whether and when homosexuals may serve in the military.
Defendants United States of America, William J. Perry, and Federico F. Pena (collectively the "United States" or the "government") appeal from the judgment of the United States District Court for the Eastern District of New York (Eugene H. Nickerson, District Judge ), which held that 10 U.S.C. § 654(b)(2) (the "statements presumption") (enacted as § 571(b)(2) of the National Defense Authorization Act for the Fiscal Year 1994 (the "Act")) violated both the Free Speech Clause of the First Amendment to the Constitution and the Equal Protection Clause of the Fourteenth Amendment, as applied against the United States under the Fifth Amendment. See Able v. United States, 880 F.Supp. 968 (E.D.N.Y.1995). The government contends that the district court failed to accord the judgments of Congress and the military proper deference in deciding the eligibility requirements for military service and that, under the correct standard, § 654(b)(2) is constitutional. The government also argues that plaintiffs' action is barred by their failure to exhaust their administrative remedies.
Plaintiffs Lieutenant Colonel Jane Able, 1 Petty Officer Robert Heigle, 2 First Lieutenant Kenneth Osborn, Sergeant Steven Spencer, Lieutenant Richard von Wohld, and Seaman Werner Zehr, who are all homosexuals serving in either the armed forces or the Coast Guard, cross-appeal from so much of the district court's judgment as dismissed their claim that 10 U.S.C. § 654(b)(1) (the ) (enacted as § 571(b)(1) of the Act) violates the First and Fifth Amendments. 3 The plaintiffs argue that they do have standing and that this court must address the constitutionality of § 654(b)(1) because the government's argument that the statements presumption of § 654(b)(2) is constitutional is premised on the validity of the acts prohibition of § 654(b)(1). The government does not dispute that the plaintiffs have standing, but contends that the district court properly exercised its discretion in not reaching the challenge to § 654(b)(1) and that, in any event, § 654(b)(1) is constitutional.
We agree with the plaintiffs that they have standing to challenge § 654(b)(1). We also agree that the plaintiffs were not required to exhaust their administrative remedies before bringing this action. We reject, however, the district court's reasons for holding § 654(b)(2) to be unconstitutional and, for the reasons stated below, we remand the case to the district court for further consideration of the plaintiffs' challenges to § 654(b)(1) and (2) in accordance with this opinion.
In January 1993, President Clinton directed the Secretary of Defense to review the DoD's policy (the "former policy") concerning the service of homosexuals in the military. Under the former policy, promulgated by the DoD in 1982, see 47 Fed.Reg. 10,162 (1982), a service member was to be separated from the armed forces
if one or more of the following approved findings is made:
(1) The member has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts unless there are approved further findings that:
(a) Such conduct is a departure from the member's usual and customary behavior;
(b) Such conduct under all the circumstances is unlikely to recur;
(c) Such conduct was not accomplished by use of force, coercion, or intimidation by the member during a period of military service;
(d) Under the particular circumstances of the case, the member's continued presence in the Service is consistent with the interest of the Service in proper discipline, good order, and morale; and
(e) The member does not desire to engage in or intend to engage in homosexual acts.
(2) The member has stated that he or she is a homosexual or bisexual unless there is a further finding that the member is not a homosexual or bisexual.
(3) The member has married or attempted to marry a person known to be of the same biological sex (as evidenced by the external anatomy of the persons involved) unless there are further findings that the member is not a homosexual or bisexual and that the purpose of the marriage or attempt was the avoidance or termination of military service.
32 C.F.R. pt. 41, app. A, pt. 1, at H.c (1992).
President Clinton's directive prompted not only a DoD review but extensive hearings in both houses of Congress on the question of military service by homosexuals. See, e.g., S.Rep. No. 112, 103d Cong., 1st Sess. 269-70 (1993). Several months later, President Clinton announced a new policy, which formed the basis for § 654. In the Act, Congress grounded its decision to enact § 654 in fifteen separate findings:
(1) Section 8 of article I of the Constitution of the United States commits exclusively to the Congress the powers to raise and support armies, provide and maintain a Navy, and make rules for the government and regulation of the land and naval forces.
(2) There is no constitutional right to serve in the armed forces.
(3) Pursuant to the powers conferred by section 8 of article I of the Constitution of the United States, it lies within the discretion of the Congress to establish qualifications for and conditions of service in the armed forces.
(4) The primary purpose of the armed forces is to prepare for and to prevail in combat should the need arise.
(5) The conduct of military operations requires members of the armed forces to make extraordinary sacrifices, including the ultimate sacrifice, in order to provide for the common defense.
(6) Success in combat requires military units that are characterized by high morale, good order and discipline, and unit cohesion.
(7) One of the most critical elements in combat capability is unit cohesion, that is, the bonds of trust among individual service members that make the combat effectiveness of a military unit greater than the sum of the combat effectiveness of the individual unit members.
(8) Military life is fundamentally different from civilian life in that--
(A) the extraordinary responsibilities of the armed forces, the unique conditions of military service, and the critical role of unit cohesion, require that the military community, while subject to civilian control, exist as a specialized society; and
(B) the military society is characterized by its own laws, rules, customs, and traditions, including numerous restrictions on personal behavior, that would not be acceptable in civilian society.
(9) The standards of conduct for members of the armed forces regulate a member's life for 24 hours each day beginning at the moment the member enters military status and not ending until that person is discharged or otherwise separated from the armed forces.
(10) Those standards of conduct, including the Uniform Code of Military Justice, apply to a member of the armed forces at all times that the member has a military status,...
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