Philips v. Perry

• Decision Date: 18 April 1997
• Docket Number: No. 95-35293,95-35293
• Parties: 70 Empl. Prac. Dec. P 44,721, 97 Cal. Daily Op. Serv. 1038, 97 Cal. Daily Op. Serv. 2848, 97 Daily Journal D.A.R. 1551, 97 Daily Journal D.A.R. 5031 Mark A. PHILIPS, Plaintiff-Appellant, v. William PERRY, Secretary of Defense; John Dalton, Secretary of the Navy; M.B. Margosian, Commanding Officer, Transient Personnel Unit, Puget Sound, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1420

106 F.3d 1420

70 Empl. Prac. Dec. P 44,721, 97 Cal. Daily

Op. Serv. 1038,

97 Cal. Daily Op. Serv. 2848,

97 Daily Journal D.A.R. 1551,

97 Daily Journal D.A.R. 5031

Mark A. PHILIPS, Plaintiff-Appellant, v. William PERRY, Secretary of Defense; John Dalton, Secretary

of the Navy; M.B. Margosian, Commanding Officer,

Transient Personnel Unit, Puget Sound,

Defendants-Appellees.

No. 95-35293.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted March 4, 1996.

Filed Feb. 14, 1997.

As Amended April 18, 1997.

Matthew A. Coles, American Civil Liberties Union of Northern California, San Francisco, CA, for plaintiff-appellant.

E. Roy Hawkens, United States Department of Justice, Civil Division, Washington, D.C., for defendants-appellees.

Chai R. Feldblum, Georgetown University Law Center, Washington, D.C., amicus curiae, for Human Rights Campaign Fund, et al.

Melissa Wells-Petry, Family Research Council, Washington, D.C., amicus curiae, for Family Research Council.

Appeal from the United States District Court for the Western District of Washington, William L. Dwyer, District Judge, Presiding. D.C. No. CV-93-00154-WLD.

Before FLETCHER, JOHN T. NOONAN, and RYMER, Circuit Judges.

RYMER, Circuit Judge:

Pursuant to the so-called "don't ask/don't tell" policy regarding gays in the military, ¹ the Navy discharged Petty Officer Mark A. Philips for stating that he is a homosexual, and for engaging in and saying that he will continue to engage in homosexual acts. Concluding that this circuit has held in a line of cases from Beller v. Middendorf, 632 F.2d 788 (9th Cir.1980), cert. denied, 452 U.S. 905, 101 S.Ct. 3030, 69 L.Ed.2d 405 (1981), through Meinhold v. U.S. Dept. of Defense, 34 F.3d 1469 (9th Cir.1994), that the military may constitutionally discharge members who engage in homosexual conduct, as distinguished from merely having a homosexual status or orientation, the district court granted the Secretary of Defense's motion for summary judgment. ² Inasmuch as Philips's homosexual acts were sufficient to justify his discharge under the "acts" prong of the statute and regulations, the court declined to address the constitutionality of the Navy's alternative basis for discharge under the "statements" prong--that Philips made a statement that he is a homosexual, and failed to rebut the presumption raised by that statement that he has a propensity to engage in homosexual acts.

We agree with the district court, and affirm.

I

Philips had served for four years as an enlisted member of the United States Navy, garnering an excellent service record. In November 1992, while on board the U.S.S. NIMITZ, Philips told his division officer that he is a homosexual. During a subsequent interview with military personnel, Philips said that he had discovered he was a homosexual within the preceding year; that he had had sexual relations with men about a dozen times and that he would continue to

have sex with men; that when ashore he frequented gay bars two or three times a week; that his sexual encounters never involved other military members or occurred on board ship or on a military installation; that the acts were consensual; that he had experienced no problems at work because of his homosexuality; and that he wanted to be processed for discharge, to fight the process, and to win by being retained in the naval service

Soon thereafter, the Navy initiated a discharge proceeding under then-existing regulations, which provided for separation of any service member who engaged in homosexual acts or who stated that he is a homosexual. ³ Philips filed suit and unsuccessfully sought a temporary restraining order to prevent his discharge. An administrative hearing was held, and the board recommended that Philips be discharged based on his statement that he is a homosexual. However, the board's recommendation was never carried out because of the impending new policy regarding gays in the military and several pending lawsuits challenging the constitutionality of the old policy. Eventually the district court entered a stipulated order staying further proceedings in this case until we decided Meinhold.

After the new "Policy concerning homosexuality in the armed forces," 10 U.S.C. § 654, and the 1994 DOD Directives became effective, the Navy commenced a second administrative discharge proceeding against Philips under the new policy (with Philips's agreement). The board found that Philips had engaged in homosexual conduct based on his engaging in homosexual acts, as evidenced by his statement that he had done so. ⁴ The board also found that Philips had engaged in homosexual conduct based on his statement that he is a homosexual. ⁵ It therefore again recommended that Philips be honorably discharged from the Navy.

The district court enjoined Philips's discharge but in later ruling on cross-motions for summary judgment, concluded that Meinhold compelled it to hold that the Navy did not violate equal protection by discharging Philips for engaging in homosexual acts and for intending to continue engaging in such acts. The court also concluded that, under our holding in Pruitt v. Cheney, 963 F.2d 1160 (9th Cir.1991), cert. denied, 506 U.S. 1020, 113 S.Ct. 655, 121 L.Ed.2d 581 (1992), the discharge did not violate the First Amendment. ⁶ Philips appeals. ⁷

II

As the district court's opinion discusses in greater detail, the new policy was the outgrowth of extensive consideration by the executive and legislative branches. Congress made 15 findings in enacting § 654, including that military life is fundamentally different from civilian life; the standards of conduct for members of the armed forces must apply at all times to members whether on or off base and whether on or off duty; the worldwide deployment of United States military

forces and potential for involvement of the armed forces in actual combat make it necessary for members of the armed forces to accept living conditions that are characterized by forced intimacy with little or no privacy; the prohibition against homosexual conduct is long-standing and continues to be necessary; and the presence in the armed forces of persons who demonstrate "intent to engage in homosexual acts would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability." 10 U.S.C. §§ 654(a)(8), (9), (10), (12), (13), (15)

Section 654 differs from the former policy primarily in that the military may no longer initiate inquiry into a person's sexual orientation. Also unlike the old regulations, the regulations implementing the new policy stipulate that sexual orientation is considered a personal and private matter, and that neither entry into service nor continued service depends on orientation. However, the "don't ask/don't tell" policy continues to provide for discharge of a service member who commits homosexual acts and intends to continue doing so. It mandates that a service member "shall be separated" under regulations prescribed by DOD under three circumstances: if the member has engaged in "a homosexual act or acts" unless the member demonstrates that "such conduct" departs from his usual behavior and is unlikely to recur, and that he does not have a propensity or intent to engage in such conduct, 10 U.S.C. § 654(b)(1)(A), (B), (D); or if the member has stated that he is a homosexual unless he demonstrates that he does not engage or intend to engage in homosexual acts, id. at § 654(b)(2); or if the member has married or attempted to marry a person of the same biological sex, id. at § 654(b)(3). ⁸ "Homosexual act" is defined as "any bodily contact ... between members of the same sex for the purpose of satisfying sexual desires." 10 U.S.C. § 654(f)(3). ⁹

Directives issued by then-Secretary of Defense Les Aspin further explain the policy and how it is to be implemented. See DOD Directives 1304.26 (Qualification Standards for Enlistment, Appointment, and Induction), 1332.14 (Enlisted Administrative Separations), 1332.30 (Separation of Regular Commissioned Officers). The Directive under which Philips was processed provides, among other things:

Homosexual conduct is grounds for separation from the Military Services under the terms set forth in paragraph H.1.b, below. 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 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 in the manner described in paragraph H.1.b.

DOD Directive 1332.14(H)(1)(a). Paragraph (H)(1)(b) spells out the findings required for discharge under the "acts," "statement" and "marriage" prongs of § 654(b) in terms that are essentially identical to § 654(b)(1), (2), (3). ¹⁰ As there is no dispute that Philips engaged in homosexual acts and intended to continue doing so, and since we agree with the district court that Philips's discharge must be upheld under the "acts" prong alone, we do not consider the "statement" and "marriage" alternatives.

III

Philips argues that § 654 and its implementing regulations violate his right to equal protection because they are not rationally related to any permissible purpose. He complains that under the policy, he was subject to mandatory discharge for engaging in sexual acts with a man, whereas heterosexuals who engage in the same sexual acts are not subject to the policy and its mandatory discharge provisions. Philips submits that none of the government's...