Watson v. Perry

• Decision Date: 07 March 1996
• Docket Number: No. C95-1141Z.,C95-1141Z.
• Citation: 918 F. Supp. 1403
• Parties: Lieutenant Richard P. WATSON, Plaintiff, v. William J. PERRY, Secretary of Defense, et al., Defendants.
• Court: U.S. District Court — Western District of Washington

918 F. Supp. 1403

Lieutenant Richard P. WATSON, Plaintiff, v. William J. PERRY, Secretary of Defense, et al., Defendants.

No. C95-1141Z.

United States District Court, W.D. Washington.

March 7, 1996.

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Tarl R. Oliason, McKisson & Sargent, Seattle, WA, Paul S. Schmidtberger, Coudert Brothers, San Francisco CA, Christopher J. Bakes, Bakes & Chapman, San Francisco CA, Amy A. Fraenkel, LeBoeuf, Lamb, Greene & McRae, San Francisco CA, for Plaintiff.

Mark T. Quinlivan, U.S. Department of Justice, Federal Programs Branch, Washington DC, for Defendants.

ORDER

ZILLY, District Judge.

After fourteen years of exemplary military service, Lieutenant Richard P. Watson submitted a statement to his commanding officer declaring that he had a "homosexual orientation," and stating that he would not "rebut the statutory presumption" that service-members who state they are homosexuals engage in or have a propensity to engage in homosexual conduct. Pursuant to the Department of Defense's so-called "Don't Ask, Don't Tell" policy regarding homosexuals in the military, the Navy instituted discharge proceedings against Lt. Watson. Based on Watson's initial statement, a further statement to the Board of Review, and his failure to produce any evidence rebutting the presumption, the Navy ordered Lt. Watson's separation from service. Lt. Watson then initiated this action challenging on due process, equal protection, and free speech grounds the constitutionality of the "Don't Ask, Don't Tell" policy and implementing regulations.

The parties have now cross-moved for summary judgment. The Court heard argument on January 19, 1996, and, having considered the parties' briefs and arguments, hereby GRANTS the Government's motion for summary judgment and DENIES the plaintiff's motion for summary judgment.

Summary of Decision

Lt. Watson has challenged the "Don't Ask, Don't Tell" policy as unconstitutional on its face. The Court does not reach this issue because the statements made by Lt. Watson to the Navy support the conclusion that the policy was constitutionally applied to him. It is well established that the armed forces may prohibit homosexual conduct. Because homosexual conduct may constitutionally be prohibited, administrative discharges based on propensity or intent to engage in homosexual acts, as evidenced by servicemembers' statements, do not violate equal protection. Here, Lt. Watson made a statement that he had not and would not engage in homosexual conduct with any military students or service members during the performance of military duty or while on any military installation. Because the Navy could properly draw an adverse inference from Watson's selective omission of any reference to off base, off duty conduct with non-military personnel, there is no basis for finding the policy was unconstitutionally applied to him. He was not discharged solely for acknowledging his sexual orientation, but rather for making statements manifesting an intent or propensity to engage in proscribed homosexual conduct.

The Court's decision to grant the Government's motion for summary judgment should not be interpreted as an endorsement of the military's "Don't Ask, Don't Tell" policy or the way it has been applied in general. Regrettably, enforcement of the existing policy has resulted in the expulsion from the armed forces of many outstanding men and women who served their country with honor and dignity. This Court may not, however, question the wisdom of the policy or substitute its judgment for that of Congress. Rather, the Court's role is limited to determining whether the policy enacted by Congress was constitutionally applied to Lt. Watson. The Court concludes that it was.

Background

Plaintiff Richard Watson is currently a lieutenant in the United States Navy. Lt. Watson enlisted in the Navy in July 1981. A year later, the Navy selected Lt. Watson to participate in the Enlisted Commissioning Program, under which highly qualified enlisted personnel may achieve officer status. Under this program, Lt. Watson attended the University of New Mexico, obtaining a Bachelor of Science degree in mathematics in August 1986. After completing Officer Candidate School, Naval Nuclear Power School, and the Submarine Officer Basic Course, Lt. Watson served aboard the U.S.S. Henry M. Jackson from September 1988 until September 1992. During this period, Lt. Watson received many honors including a Letter of Commendation from the Commanding Officer of the U.S.S. Henry M. Jackson, the National Defense Service Medal for Service on Active Duty, the Navy Achievement Medal for "Professional Achievement in the Superior Performance of His Duties," and a Gold Star in lieu of a second Navy Achievement Medal.

From September 1992 until March 1995, Lt. Watson served as an Assistant Professor of Naval Science in the Naval Reserve Officers Training Corps (NROTC) at Oregon State University. During this period, Lt. Watson sought to obtain a Masters Degree in Business Administration, which he viewed as necessary for continued promotion and advancement in the Navy.

On October 28, 1994, Lt. Watson delivered to his Commanding Officer a one-page document titled "Submission of Sexual Orientation Statement." Paragraph 2 reads: "I have a homosexual orientation. I do not intend to rebut the presumption." Lt. Watson explains in his declaration that he submitted the statement (1) because of his commitment to honesty, truthfulness, and integrity, and (2) to eliminate any potential for a blackmail threat in the event he received a vessel command assignment. Based on this letter, the Navy issued a show cause order requiring Watson to show cause before a Board of Inquiry why he should be retained in the Naval Service.

On March 1, 1995, a Navy Board of Inquiry was convened. Although the Board reminded Watson that to avoid discharge he would have to rebut the presumption that he engages in or intends to engage in homosexual acts, Watson presented no such evidence. Instead, he recounted his many accomplishments during fourteen years of military service and emphasized his commitment to the Navy and its core values. Watson's counsel argued to the Board that Watson's statement, "I do not intend to rebut the presumption" was made without the assistance of counsel and without full understanding of "what a presumption is." The Board concluded that although they had no doubt that Watson was "an outstanding performer," he failed to offer any evidence to rebut the presumption. As a result, the Board voted 3 to 0 to recommend the honorable discharge of Lt. Watson "by reason of homosexual conduct."

On March 28, 1995, Lt. Watson's civilian counsel submitted a letter of deficiency for consideration by the Commander of Naval Base Seattle and the Board of Review in their review of the Board of Inquiry's recommendation. The letter included the following statement by Lt. Watson:

a. I expressly deny that I have engaged in any homosexual conduct with any military student or service member.

b. I expressly deny that I engaged in any homosexual conduct during the performance of military duty, or while on any military installation.

c. I expressly deny that I have any intent or propensity to engage in any conduct described above.

In April 1995, the Commander of Naval Base Seattle issued a report in which he approved and concurred in the Board of Inquiry's findings, and recommended to the Chief of Naval Personnel that Watson be separated from service. The Commander concluded that Watson's letter of deficiency failed to rebut the presumption and was, in fact, "persuasive as much for what it does not deny as for what it does." The "Don't Ask, Don't Tell" policy "applies to a member of the armed forces at all times that the member has a military status, whether the member is on base or off base, and whether the member is on duty or off duty." 10 U.S.C. § 654(a)(10). Thus, homosexual conduct that requires separation from service is not limited to the circumstances addressed in Watson's letter of deficiency, namely off duty, off base conduct with non-military personnel. Because Watson was silent as to his intent or propensity to engage in homosexual conduct under circumstances other than described in his statement, the Commander concluded that his statement supported, rather than rebutted, the presumption.

The Commander also rejected Watson's argument, made to the Board of Inquiry, that his initial statement, "I do not intend to rebut the presumption" was made "without any counseling from lawyers," and therefore should be construed only as a statement that he did not want an embarrassing inquiry into his private life. The Commander concluded that Watson's legal ignorance was substantially contradicted by his statement that he sent copies of his declaration to various officials and interest groups on the advice of his lawyer.

On May 2, 1995, the Board of Review voted unanimously to recommend Watson's separation from service with an honorable discharge. In June 1995, the Navy sent Lt. Watson a Notice of Discharge and an amended Notice of Discharge. The amended Notice of Discharge informed Lt. Watson that he would receive 50% of the standard separation pay.

On July 25, 1995, Lt. Watson initiated this action against Secretary of Defense William J. Perry, Secretary of the Navy John E. Dalton, and the United States. In this action, Lt. Watson challenges the constitutionality of the Policy Concerning Homosexuality in the Armed Forces (colloquially known as the "Don't Ask, Don't Tell" policy), 10 U.S.C. § 654, and the Department of Defense regulations promulgated thereunder. The statute provides in relevant part as follows:

(b) Policy. — A member of the armed forces shall be separated from the armed forces under regulations prescribed by the Secretary of Defense if one or more of the following findings is made and approved ...

(2) That the member has stated that

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