Able v. U.S.

• Decision Date: 23 September 1998
• Docket Number: Docket No. 97-6205
• Citation: 155 F.3d 628
• Parties: 74 Empl. Prac. Dec. P 45,501 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, v. UNITED STATES of America, William S. Cohen, Secretary of Defense, in his official capacity, Rodney E. Slater, Secretary of Transportation, Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

Page 628

155 F.3d 628

74 Empl. Prac. Dec. P 45,501

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, v. UNITED STATES of America, William S. Cohen, Secretary of

Defense, in his official capacity, Rodney E.

Slater, Secretary of Transportation,

Defendants-Appellants.

Docket No. 97-6205.

United States Court of Appeals,

Second Circuit.

Argued April 2, 1998.

Decided Sept. 23, 1998.

John C. Hoyle, Department of Justice, Washington, DC (Zachary W. Carter, United States Attorney, Brooklyn, NY, Frank W. Hunger, Assistant Attorney General, Anthony J. Steinmeyer, E. Roy Hawkens, Appellate Staff, Civil Division, Department of Justice, Washington, DC, Maj. Douglas Mickle, United States Army, Arlington, VA, of counsel), for Defendants-Appellants/Cross-Appellees.

Beatrice Dohrn, New York, NY (Ruth E. Harlow, Lambda Legal Defense & Education Fund, New York, NY, Matthew Coles, American Civil Liberties Union Foundation, New York, NY), for Plaintiffs-Appellees/Cross-Appellants.

Melissa Wells-Petry, Washington, DC, for Amicus Curiae Family Research Council.

C. Dixon Osburn, Michelle Benecke, Servicemembers Legal Defense Network, Charles S. Sims, Gregory McCurdy, Heather Martinez, Proskauer Rose LLP, New York, NY, for Amicus Curiae Servicemembers Legal Defense Network.

Jeffrey Swope, Kenneth W. Salinger, Palmer & Dodge LLP, Boston, MA, for Amicus Curiae American Council on Education, the American Association of Colleges

of Nursing, American Association of Community Colleges, American Association of State Colleges and Universities, American College Personnel Association, Association of American Law Schools, Appalachian State University, Council of Graduate Schools, Duke University, Massachusetts Institute of Technology, National Association of State Universities and Land-Grant Colleges, National Association of Student Personnel Administrators, and NAWE: Advancing Women in Higher Education, Oregon State Board of Higher Education, Rutgers, State University of New York, Syracuse University, Trustees of Dartmouth College, Trustees of Princeton University, Trustees of Tufts University and Washington University in St. Louis.

Marjorie A. Silver, Chair, Standing Committee on Sex and Law, The Association of the Bar of the City of New York, New York, NY, Valerie J. Wald, Kristine L. Franklin, Kim Hawkins, New York, NY, for Amici Curiae Association of the Bar of the City of New York.

Before: FEINBERG, WALKER, and LEVAL, Circuit Judges.

JOHN M. WALKER, JR., Circuit Judge:

Defendants United States of America, William S. Cohen and Rodney E. Slater ("the government" or "the United States") appeal from the July 2, 1997 Memorandum and Order of the United States District Court for the Eastern District of New York (Eugene H. Nickerson, Senior District Judge ), which found that § 571(b) of the National Defense Authorization Act for the Fiscal Year 1994 (the "Act"), codified at 10 U.S.C. § 654(b), which mandates the termination of a service member of the armed forces for engaging in homosexual conduct, violates the Equal Protection Clause of the Fifth Amendment. See Able v. United States, 968 F.Supp. 850, 865 (E.D.N.Y.1997). The government argues that the district court failed to accord the judgments of Congress and the military the proper deference in deciding the eligibility requirements for military service and that, under the correct standard, § 654(b) is constitutional.

BACKGROUND

This appeal presents our second encounter with the merits of plaintiffs' constitutional challenge to the military's "don't ask, don't tell" policy toward homosexual members of the United States military. See Able v. United States, 88 F.3d 1280 (2d Cir.1996). We assume familiarity with the facts and procedural history of this case and will set forth only such background as is necessary to address the issues that remain on appeal.

The "don't ask, don't tell" policy is embodied in § 654(b) as well as various Department of Defense ("DoD") directives. Section 654(b) provides for a service member's separation from the armed services if he or she has: (1) "engaged in, attempted to engage in, or solicited another to engage in a homosexual act;" (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;" (3) or has "married or attempted to marry a person known to be of the same biological sex." 10 U.S.C. §§ 654(b)(1), (2), (3). The statute defines "homosexual act" as "(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). DoD Directive 1332.14(H)(1)(a) (Dec. 21, 1993), which implements the statute, provides that:

Homosexual conduct is grounds for separation from the Military Services.... Homosexual conduct includes 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. A statement by a member that demonstrates a propensity or intent to engage in homosexual acts is grounds for separation not because it reflects the member's sexual orientation, but because the statement indicates a likelihood that the member engages in or will engage in homosexual acts. A member's A service member who has stated that he or she is gay is given the opportunity to rebut the presumption that he or she has a propensity to commit homosexual acts by presenting evidence to an administrative board 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." Directive 1332.14(H)(1)(b)(2).

sexual orientation is considered a personal and private matter, and is not a bar to continued service under this section unless manifested by homosexual conduct....

Plaintiffs filed the instant action on March 7, 1994, in the Eastern District of New York claiming that the Act and the DoD Directives violate their rights under the First and Fifth Amendments to free speech, equal protection, and expressive and intimate association, and violate due process by failing to give adequate notice of what speech or behavior is proscribed.

On April 4, 1994, the district court issued a preliminary injunction enjoining the military from taking action against the plaintiffs based on statements made in the course of the litigation. See Able v. United States, 847 F.Supp. 1038 (E.D.N.Y.1994). On June 13, 1994, the district court issued a second, broader preliminary injunction preventing the government from taking action against the plaintiffs for statements identifying themselves as homosexuals, regardless of whether or not they were made in connection with this lawsuit. The government appealed to this court, and we held that, while the injunction had been granted pursuant to an incorrect standard and should be reconsidered, it could nonetheless remain in place pending the district court's reconsideration. See Able v. United States, 44 F.3d 128, 132 (2d Cir.1995).

Following a four day trial, the district court held that 10 U.S.C. § 654(b)(2) (the "statements provision"), violated the Free Speech Clause of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. See Able v. United States, 880 F.Supp. 968, 980 (E.D.N.Y.1995). The district court concluded that the plaintiffs, who had not been the subject of discharge or other adverse proceedings, lacked standing to challenge § 654(b)(1) (the "acts prohibition") and dismissed that part of the complaint without prejudice. See id. at 970.

The government appealed, and we reversed. We held that the statements provision "substantially furthers the government's interest ... in preventing the occurrence of homosexual acts in the military," see Able, 88 F.3d at 1296, and determined that "if the acts prohibition of subsection (b)(1) is constitutional ... the statements presumption of subsection (b)(2) does not violate the First Amendment," id., because the "subsections rise or fall together," id. at 1292. We also found that plaintiffs had standing to challenge § 654(b)(1), reinstated the acts provision claim and remanded to the district court to determine whether the acts provision violates the Equal Protection Clause.

On remand, the district court held that the acts provision violates the Equal Protection Clause. See Able v. United States, 968 F.Supp. at 865. The United States appealed, arguing that the district court failed to accord Congress the deference required in cases involving the military and that under the correct standard § 654 is constitutional.

DISCUSSION

The Due Process Clause of the Fifth Amendment assures every person the equal protection of the laws, "which is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). Of course, the government can treat persons differently if they are not "similarly situated." As a general rule, the equal protection guarantee of the Constitution is satisfied when the government differentiates between persons for a reason that bears a rational relationship to an appropriate governmental interest. See Heller v. Doe, 509 U.S. 312, 320, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993). However, in limited circumstances when the subject of the different treatment is a member of a class that historically has been the object of discrimination, the Supreme Court has required a higher degree of justification than a...