Able v. U.S.

• Decision Date: 02 July 1997
• Docket Number: No. 94 CV 0974.,94 CV 0974.
• Citation: 968 F.Supp. 850
• Parties: Lieutenant Colonel Jane ABLE, Petty Officer Robert Heigl, First Lieutenant Kenneth Osborn, Sergeant Steven Spencer, Lieutenant Richard von Wohld, and Seaman Werner Zehr, Plaintiffs, v. UNITED STATES of America, William J. Perry Secretary of Defense, in his official capacity, and Federico Peña, Secretary of Transportation, in his official capacity, Defendants.
• Court: U.S. District Court — Eastern District of New York

968 F.Supp. 850

Lieutenant Colonel Jane ABLE, Petty Officer Robert Heigl, First Lieutenant Kenneth Osborn, Sergeant Steven Spencer, Lieutenant Richard von Wohld, and Seaman Werner Zehr, Plaintiffs, v. UNITED STATES of America, William J. Perry Secretary of Defense, in his official capacity, and Federico Peña, Secretary of Transportation, in his official capacity, Defendants.

No. 94 CV 0974.

United States District Court, E.D. New York.

July 2, 1997.

Lambda Legal Defense & Education Fund (Beatrice Dohrn, Evan Wolfson, and Ruth Harlow, of counsel), New York City, for plaintiffs.

American Civil Liberties Union Foundation (Marc E. Elovitz and Matthew Coles, of counsel), New York City, for plaintiffs.

United States Department of Justice (Frank W. Hunger, Assistant Attorney General, Zachary W. Carter, United States Attorney for the Eastern District of New York, Charles S. Kleinberg, Assistant United States Attorney, David J. Anderson, Vincent M. Garvey, and Mark T. Quinlivan, Attorneys, of counsel), Washington, DC, for defendants.

Department of the Army, Office of the Judge Advocate General (Major Douglas K. Mickle, of counsel), for defendants.

MEMORANDUM AND ORDER

NICKERSON, District Judge:

The United States Court of Appeals for the Second Circuit remanded this case to this court to decide whether or not section 571(b)(1) of the National Defense Authorization Act for the Fiscal Year 1994, 10 U.S.C. § 654(b)(1) (the Act), complies with the Constitution. Able v. United States, 88 F.3d 1280 (2d Cir.1996).

I.

Plaintiffs, six homosexuals serving in the Armed Forces or the Coast Guard, brought the case to challenge 10 U.S.C. § 654(b) of the Act, by which Congress enacted the so-called "Don't Ask, Don't Tell" policy concerning homosexuals in the armed forces.

Section 654(b) contains two subsections subjecting homosexuals to mandatory discharge.

Subsection (b)(1) requires dismissal of any member of the armed forces who "has engaged in, or solicited another to engage in a homosexual act or acts," unless he or she satisfies five conditions, including demonstrating that he or she "does not have a propensity or intent to engage in homosexual acts."

"Homosexual act" is defined to mean "(A) any bodily contact, actively undertaken or passively permitted, between members of the same sex for the purpose of satisfying sexual desires, and (B) any bodily contact which a reasonable person would understand to demonstrate a propensity or intent to engage in an act described in subparagraph (A)." 10 U.S.C. § 654(f)(3).

A "homosexual act" thus includes not merely sodomy, which is punishable severely whether committed by heterosexuals or homosexuals under an article not challenged by plaintiffs of the Uniform Code of Military Justice, but also "any bodily contact" between those of the same sex that a "reasonable person would understand to demonstrate a propensity or intent" to engage in some other act to satisfy sexual desires.

Subsection (b)(2) of the Act requires discharge of any member who "has stated that he or she is a homosexual or bisexual, or words to that effect" (including, according to the Directives issued under the Act, "I have a homosexual orientation"), unless the member demonstrates 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."

This court declined to determine the constitutionality of subsection (b)(1) relating to homosexual acts on the ground plaintiffs lacked standing to challenge that provision. Able v. United States, No. 94 CV 0974, 1995 WL 116322 (E.D.N.Y. Mar.14, 1995). The court also held that subsection (b)(2) relating to statements of homosexual orientation impermissibly regulated speech based on content in violation of the First Amendment. Able v. United States, 880 F.Supp. 968 (E.D.N.Y.1995).

On appeal, the Court of Appeals determined that plaintiffs had standing to challenge subsection (b)(1) and that the constitutionality of subsection (b)(2) hinged on that of the other subsection. The Court said that the two subsections "rise or fall together," that the restriction on speech in (b)(2), while valid assuming subsection (b)(1) was valid, was "incidental and wholly subservient to the restriction on acts" in (b)(1), and that "[t]he government does not contend (nor could it) that in the event that § 654(b)(1) is held to be unconstitutional, § 654(b)(2) may still be upheld." Able, 88 F.3d at 1292, 1300. Accordingly, the Court of Appeals remanded for this court to decide whether subsection (b)(1) comports with equal protection.

II.

The Equal Protection Clause of the Fourteenth Amendment to the Constitution provides that no State shall "deny to any person within its jurisdiction the equal protection of the laws." The Supreme Court has decided that the Due Process Clause of the Fifth Amendment imposes the same constitutional requirements on the federal government as the Equal Protection Clause imposes on state governments. Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n. 2, 95 S.Ct. 1225, 1228 n. 2, 43 L.Ed.2d 514 (1975); Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954).

In 1996, the Supreme Court struck down as violative of the Equal Protection Clause a state constitutional amendment categorically prohibiting gay men and lesbians from obtaining state or local legal protection from discrimination based on their sexual orientation. Romer v. Evans, ___ U.S. ___, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996). That case established that government discrimination against homosexuals in and of itself violates the constitutional guarantee of equal protection. Id. at ____ - ____, 116 S.Ct. at 1628-29. Implicit in this holding is a determination that such discrimination, without more, is either inherently irrational or invidious. Id. at ___, 116 S.Ct. at 1627.

The Act admittedly treats heterosexuals and homosexuals differently, and the issue is whether that different treatment deprives homosexuals of their equal protection rights.

III.

To put the case in context it is useful to consider some history of the treatment of gay men and lesbians over the centuries.

A.

During the Holocaust, the Nazis persecuted homosexuals along with Jews, gypsies, and other groups, using the pink triangle as the symbol to designate homosexuals. See Kenji Yoshino, Suspect Symbols: The Literary Argument for Heightened Scrutiny for Gays, 96 Colum. L.Rev. 1753 (1996). But such prejudice has not always been and is not now shared in large portions of the world.

In a detailed and scholarly study of the history of social tolerance of homosexuality, Professor John Boswell found that the Greeks and Romans of antiquity rarely distinguished between homosexual and heterosexual activity or categorized persons on the basis of their sexual preference. John Boswell, Christianity, Social Tolerance and Homosexuality 58-59 (1980); see also Nan D. Hunter, Life After Hardwick, 27 Harv. C.R.C.L. L.Rev. 531, 537 (1992) ("[I]t never occurred to pre-modern cultures to ascribe a person's sexual tastes to some positive, structural, or constitutive feature of his or her personality.") (quoting David Halperin, One Hundred Years of Homosexuality 27 (1990)).

The Ancient Greeks considered homosexual desire to be "ubiquitous and entirely ordinary." Boswell, supra, at 49. Similarly, "Roman society, at least in its urban centers, did not for the most part distinguish gay people from others and regarded homosexual interest and practice as an ordinary part of the range of human eroticism." Id. at 333. Gay people were fully integrated into Roman culture, and "neither they nor their contemporaries regarded their inclinations as harmful, bizarre, immoral, or threatening." Id. at 87. Consistent with this atmosphere of tolerance, the early Christian Church did not "oppose[] homosexual behavior per se." Id. at 333.

Visible hostility toward homosexuality did not appear in the West until the third century and lasted through the sixth century — during the period of the dissolution of the Roman state. Id. During the Early Middle Ages, neither gay people nor opposition to homosexuality were particularly evident in western Europe. Id. Until the twelfth century, moral theology was basically indifferent to homosexuality, and legal sanctions for homosexual acts were "very rare and of dubious efficacy." Id. at 333-34. During the eleventh century, gays rose to prominence and "[o]pposition to gay sexuality appeared rarely and more as aesthetic partisanship than as moral censure." Id. at 334. Medieval China and Japan were also tolerant of homosexual activity, at least involving men. See Richard A. Posner, Sex and Reason 68-69 (1992).

In modern times tolerance of homosexuality has been widespread. "It is common knowledge that in this century homosexuals have risen high in our own public service — both in Congress and in the Executive Branch — and have served with distinction." Boutilier v. I.N.S., 387 U.S. 118, 129, 87 S.Ct. 1563, 1569, 18 L.Ed.2d 661 (1967) (Douglas, J., dissenting). A 1951 survey of seventy-six societies other than that of the United States shows that in forty-nine homosexual activities were considered "normal and socially acceptable." Clellan S. Ford & Frank A. Beach, Patterns of Sexual Behavior 130-31 (1951).

Many nations and all but twenty-two of the United States have decriminalized noncoercive sexual acts, such as heterosexual sodomy and homosexual activity. Posner, supra, at 56. Many states and localities have enacted legislation prohibiting discrimination in employment and in the provision of goods and services based on sexual orientation. See Development in the Law — Statutory Protection for Gays and Lesbians in Private Employment, 109 Harv. L.Rev. 1625 (1996).

Recent public opinion polls reflect the increasing social tolerance of homosexuality in this country. See, e.g., United States General Accounting Office, Defense Force Management, DOD's...