BenShalom v. Marsh, 88-C-468.

• Decision Date: 10 January 1989
• Docket Number: No. 88-C-468.,88-C-468.
• Citation: 703 F. Supp. 1372
• Parties: Miriam BenSHALOM, Plaintiff, v. John O. MARSH, Jr., Secretary of the U.S. Army; Commanding Officer H.Q., 84th Division, U.S. Army Reserve; Commanding Officer 5091st U.S. Army Reception Battalion, Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

703 F. Supp. 1372

Miriam BenSHALOM, Plaintiff, v. John O. MARSH, Jr., Secretary of the U.S. Army; Commanding Officer H.Q., 84th Division, U.S. Army Reserve; Commanding Officer 5091st U.S. Army Reception Battalion, Defendants.

No. 88-C-468.

United States District Court, E.D. Wisconsin.

January 10, 1989.

Angermeier & Rogers by Patrick T. Berigan, Milwaukee, Wis., for plaintiff.

Kenneth C. Kohl, Civil Div., Dept. of Justice, Washington, D.C., Francis D. Schmitz, Asst. U.S. Atty., Milwaukee, Wis., for defendants.

DECISION AND ORDER

MYRON L. GORDON, Senior District Judge.

Sergeant Miriam BenShalom has filed this action seeking to have declared as unconstitutional the Army Reserve Regulation, AR 140-111, Table 4-2, that bars reenlistment to any serviceperson who declares himself or herself to have a homosexual orientation. Sergeant BenShalom is a self-declared lesbian who, on the basis of that declaration, was denied reenlistment by the Army Reserves. The matter is before the court on cross motions for summary judgment. For reasons stated herein, the court finds that Army Reserve Regulation AR 140-111, Table 4-2, violates the plaintiff's first and fifth amendment rights and, therefore, is constitutionally void on its face.

BACKGROUND

The facts are uncontested. Sergeant BenShalom enlisted in the Army Reserve in November 1974. At various times during her enlistment, she publicly acknowledged that she is a lesbian. On December 1, 1976, she was discharged solely because of her status as a person with a homosexual orientation.

The discharge was effectuated under Army Reserve Regulation AR 135-178, ¶ 7-56(E), which allowed for the discharge of any soldier who "evidences homosexual tendencies, desire, or interest, but is without overt homosexual acts." There was no proof that Sergeant BenShalom had engaged in homosexual acts or had done anything that could be interpreted as a homosexual advance toward another female soldier. By all indications, Sergeant BenShalom was an excellent soldier with an exemplary military record.

Sergeant BenShalom successfully brought a mandamus action seeking reinstatement. Another branch of the district court held that the army regulations then at issue violated her first amendment rights of free speech and association as well as her constitutionally protected right to privacy. benShalom v. Secretary of Army, 489 F.Supp. 964, 976 (E.D.Wis.1980) (hereafter benShalom I). Vindication, however, was slow in coming. As late as August 1987, seven years after the district court ordered reinstatement, the Army resisted the reinstatement on the ground that the original regulations under which she had been discharged had been reworded. In ordering her reinstatement, the court of appeals for the seventh circuit stated:

When BenShalom is returned to the Army, the Army is prohibited from discriminating against her because she professes to be a lesbian ... A change in the Army regulations, which the Secretary now claims would prohibit BenShalom from serving in the Reserves, cannot alter the right of BenShalom which was established in Judge Evans' 1980 opinion.

BenShalom v. Secretary of Army, 826 F.2d 722, 724 (7th Cir.1987).

Sergeant BenShalom was finally reinstated in September 1987, almost eleven years after she had been unconstitutionally discharged. Her enlistment period was due to expire on August 11, 1988, and she timely requested reenlistment for a six year term; that request was denied on April 7, 1988. The revised regulations which the Army applied to bar her reenlistment made the status of homosexual a "nonwaivable moral and administrative disqualification." AR 140-111, Table 4-2. Sergeant BenShalom was denied reenlistment on the basis of the same earlier verbal declarations that had previously been the cause of her unlawful discharge.

Sergeant BenShalom filed the instant lawsuit on May 3, 1988. In an effort to preserve the status quo pending resolution of this action, she also filed a motion for a preliminary injunction. The motion was granted on August 3, 1988, 690 F.Supp. 774, and the Army was directed to consider Sergeant BenShalom's reenlistment without regard to her sexual orientation. In response to this court's August 3, 1988, order, the Army considered Sergeant BenShalom's reenlistment request without regard to her sexual orientation and determined that she otherwise satisfies all criteria for reenlistment. Nevertheless, the Army refused to reenlist her; instead, they chose to extend her prior enlistment. After being adjudged in contempt of court on September 1, 1988, the Army finally reenlisted Sergeant BenShalom pending the outcome of this case.

The uncontested factual situation today is very similar to that of 1980. The only real differences are the rewording of the regulations at issue and the fact that Sergeant BenShalom was denied reenlistment instead of being discharged. The basic policy remains the same: the Army considers those people with the status of having a homosexual orientation to be incompatible with military service because the Army believes such people, by their statements, demonstrate a propensity to engage in homosexual conduct. Today, as in 1980, there is no allegation that Sergeant BenShalom has engaged in or attempted to engage in homosexual conduct of any type.

The Army regulation in question contains a list of numerous "nonwaivable moral and administrative disqualifications" to reenlistment. In that context, Table 4-2 of AR 140-111 places homosexuality in the following category:

Rule E: Disqualification: Questionable moral character, history of antisocial behavior, sexual perversion, homosexuality (includes an individual who is an admitted homosexual but as to whom there is no evidence that they have engaged in homosexual acts either before or during military service, or has committed homosexual acts), or having frequent difficulties with law enforcement agencies. (see note 1.)

The regulation defines a homosexual as "an individual, regardless of sex, who desires bodily contact between persons of the same sex, actively undertaken or passively permitted, with the intent of obtaining or giving sexual gratification. Any official, private, or public profession of homosexuality may be considered in determining whether an individual is an admitted homosexual." AR 140-111, Table 4-2, note 1. A homosexual act is defined as "bodily contact between persons of the same sex, actively undertaken or passively permitted, with the intent of obtaining or giving sexual gratification, or any proposal, solicitation or attempt to perform such an act." Id.

The regulation in question defines a homosexual on the basis of one's sexual desires. Neither the actual commission of a homosexual act nor the intent to commit one is an element of the definition. If a person, such as Sergeant BenShalom, has the status of having a homosexual orientation and that person engages in speech which discloses or otherwise acknowledges that status, then that person is subject to an automatic, nonwaivable disqualification to reenlistment, regardless whether that person has engaged in or intends to engage in actual homosexual conduct.

The regulation also includes the following caveat:

Individuals who have been involved in homosexual acts in an apparently isolated episode, stemming solely from immaturity, curiosity, or intoxication, and absent other evidence that the individual is a homosexual, normally will not be excluded from service.

AR 140-111, Table 4-2, note 1.

It follows that the regulation in question does not penalize the commission of homosexual acts per se. If a person with a heterosexual orientation engages in homosexual conduct, that person can avoid the consequences of AR 140-111 upon proof of his or her heterosexual orientation. In other words, status based on heterosexual orientation may be a defense to the commission of homosexual acts, and a person with a heterosexual orientation may engage in conduct which is prohibited on the part of a person with a homosexual orientation.

THE FIRST AMENDMENT

The plaintiff argues that AR 140-111, Table 4-2 has the effect of chilling her freedom of expression because if the regulation is enforced, she will no longer be able to make statements regarding her sexual orientation, statements which would otherwise be perfectly legal. In this regard, she points to her earlier case, benShalom I, wherein she successfully challenged her prior discharge for making the same statements at issue in the instant case.

The Secretary argues that Sergeant BenShalom's statements about her sexual orientation are not protected expressions. Rather, the statements are admissions that she falls within a classification of people whose presence in the Army is properly deemed to be incompatible with military service. The Secretary states that "the regulation simply bars from reenlistment any servicemembers who engage, have engaged, or likely will engage, in sexual conduct that Congress has criminalized, see 10 U.S.C. § 925 sodomy, and that the military has deemed is incompatible with the military mission." Defendants' Memorandum in Support of its Motion at 24-25. The Secretary concludes that the regulation "protects a substantial Government interest unrelated to the suppression of free expression." Brown v. Glines, 444 U.S. 348, 354, 100 S.Ct. 594, ___, 62 L.Ed.2d 540 (1980). The Secretary asserts that by acknowledging that one has a homosexual orientation, one admits that one is likely to engage in criminal acts of sodomy, and there is a substantial government interest in preventing such criminal acts.

The Secretary further argues that benShalom I did not hold that Sergeant BenShalom's first amendment rights were violated by her discharge for statements that she made about her sexual orientation. Rather, the Secretary asserts that the Army's previous regulation was struck down under the first amendment overbreadth doctrine. This contention is unpersuasive...