No. 98-500
In the Supreme Court of the United States
OCTOBER TERM, 1998
ANDREW HOLMES, ET AL., PETITIONERS
v.
CALIFORNIA ARMY NATIONAL GUARD, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIEF FOR THE FEDERAL RESPONDENTS
IN OPPOSITION
SETH P. WAXMAN
Solicitor General
Counsel of Record
FRANK W. HUNGER
Assistant Attorney General
ANTHONY J. STEINMEYER
E. ROY HAWKENS
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTION PRESENTED
The Act of Congress governing homosexual conduct in the military, 10 U.S.C.
654, requires separation of members who, like petitioners, state that they
are homosexuals and fail to rebut the presumption arising from that statement
that they have engaged in, or have a propensity to engage in, homosexual
acts. The question presented is:
Whether 10 U.S.C. 654 and petitioners' discharges under it are consistent
with equal protection and the First Amendment.
In the Supreme Court of the United States
OCTOBER TERM, 1998
No. 98-500
ANDREW HOLMES, ET AL., PETITIONERS
v.
CALIFORNIA ARMY NATIONAL GUARD, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIEF FOR THE FEDERAL RESPONDENTS
IN OPPOSITION
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a-24a) is reported at 124
F.3d 1126. The opinions of the district courts (Pet. App. 25a-42a and 43a-78a)
are reported at 918 F. Supp 1403 and 920 F. Supp. 1510.
JURISDICTION
The judgment of the court of appeals was entered on September 5, 1997. A
petition for rehearing was denied on April 6, 1998 (Pet. App. 25a). Petitioners
filed a petition for a writ of certiorari on July 6, 1998 (a Monday). The
jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
STATEMENT
1. In enacting 10 U.S.C. 654 (Pet. App. 84a-87a), which governs homosexual
conduct in the military, Congress found that the longstanding "prohibition
against homosexual conduct * * * continues to be necessary in the unique
circumstances of military service." 10 U.S.C. 654(a)(13) (Pet. App.
85a). Congress also determined (10 U.S.C. 654(a)(15); Pet. App. 85a):
The presence in the armed forces of persons who demonstrate a propensity
or 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.
Accordingly, the Act provides for separation from service if a member 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, or words to that effect, unless there is a further finding,
made and approved in accordance with procedures set forth in the regulations,
that 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"; or (3) "married or attempted to marry
a person known to be of the same biological sex." 10 U.S.C. 654(b)(1)-(3);
Pet. App. 86a.1
2. Pursuant to statutory provisions for the issuance of implementing regulations
and procedures, the Department of Defense promulgated several directives
to govern separations under the Act. DoD Directive No. 1332.30 (Pet. App.
88a-110a), applicable to officers, governs this case, and a substantially
similar directive, DoD Directive No. 1332.14, applies to enlisted personnel.
To implement the "statements" provision of the Act (10 U.S.C.
654(b)(2)), DoD Directive No. 1332.30 provides that a statement by an officer
that he "is a homosexual or bisexual, or words to that effect, creates
a rebuttable presumption that the officer engages in, attempts to engage
in, has a propensity to engage in, or intends to engage in homosexual acts."
DoD Dir. No. 1332.30 ¶ C.1.b; Pet. App. 95a. The officer is "given
the opportunity to rebut the presumption by presenting evidence" to
an administrative board "demonstrating that he * * * does not engage
in, attempt to engage in, have a propensity to engage in or intend to engage
in homosexual acts." Ibid.
A "[p]ropensity to engage in homosexual acts" is defined as "more
than an abstract preference or desire to engage in homosexual acts; it indicates
a likelihood that a person engages in or will engage in homosexual acts."
DoD Dir. No. 1332.30, Defs. ¶ 13; Pet. App. 92a (emphasis added). By
contrast, sexual orientation -defined as "[a]n abstract sexual preference
for persons of a particular sex, as distinct from a propensity or intent
to engage in sexual acts" (DoD Dir. No. 1332.30, Defs. ¶ 16; Pet.
App. 92a)-"is considered a personal and private matter, and is not
a bar to continued service * * * unless manifested by homosexual conduct."
DoD Dir. No. 1332.30 ¶ C; Pet. App. 94a.2 An officer's statement that
he is a homosexual "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." DoD
Dir. No. 1332.30 ¶ C; Pet. App. 94a. The Directive also sets forth
the types of evidence an officer may offer to rebut the presumption. DoD
Dir. No. 1332.30 ¶ C.1.b; Pet. App. 95a.
3. Lieutenants Holmes and Watson were ordered discharged from the Army National
Guard and the Navy respectively based on their statements that they were
homosexuals, or words to that effect, and their failure to rebut the presumption
arising from their statements that they engage in, or are likely to engage
in, homosexual acts. Pet. App. 7a-9a. They brought separate actions challenging
their discharges, arguing, as relevant here, that 10 U.S.C. 654(b)(2) violated
their rights to equal protection and to freedom of speech under the First
Amendment.
The District Court for the Northern District of California entered summary
judgment for Holmes, holding that Section 654 violated equal protection
and the First Amendment. Pet. App. 81a. Specifically, the court held that
the presumption in Section 654(b)(2), which is triggered by a statement
of homosexual orientation, unconstitutionally punished Holmes for speech
and for status as a homosexual, rather than for conduct. Pet. App. 64a-80a.
The Government appealed.3
The District Court for the Western District of Washington rejected Watson's
claims and entered summary judgment for the government. Pet. App. 45a. The
court held that the military's policy, on its face, did not violate equal
protection or the First Amendment because it was based on a likelihood of
validly proscribable homosexual acts that is reasonably inferred from a
service member's statements. Id. at 35a-39a, 45a. The court also rejected
Watson's as-applied challenge, finding that Watson's statements manifested
an intent or propensity-which Watson failed to rebut-to engage in off-base,
off-duty homosexual acts with nonmilitary personnel. Id. at 39a-42a, 45a.
Watson appealed.4
4. The Ninth Circuit consolidated the two cases on appeal and upheld the
constitutionality of the statutory policy. Regarding equal protection, the
court observed that court of appeals precedent firmly establishes that the
military has a "legitimate interest" in excluding service members
who engage in homosexual acts "in order to maintain effective armed
forces." Pet. App. 13a. The court then held that Congress acted rationally
in presuming that a declared homosexual engages in, or likely will engage
in, homosexual acts. Id. at 15a-16a. The court found that the policy provides
service members with a meaningful opportunity to rebut the presumption of
homosexual acts. Id. at 16a-17a.
Thus, the court held, petitioners' statements of homosexuality did not automatically
lead to their discharges; rather, their statements were "coupled with
their tacit acceptance of the link between their orientation and their conduct,
as evidenced by their failure to show" that they did not engage in,
and were not likely to engage in, homosexual acts. Pet. App. 16a. The Ninth
Circuit therefore held that the challenged statutory classification did
not offend equal protection, because it was based on a reasonable inference
of homosexual acts that are validly prohibited in the special military context.
Ibid.
The Ninth Circuit also sustained the policy against petitioners' First Amendment
challenge, holding that because petitioners were "discharged for their
conduct and not for speech, the First Amendment is not implicated."
Pet. App. 18a. The court explained that petitioners' statements that they
are homosexuals, "like most admissions, w[ere] made in speech, but
that does not mean that the [F]irst [A]mendment precludes the use of the
admission[s] as evidence of the facts admitted." Ibid. (quoting Pruitt
v. Cheney, 963 F.2d 1160, 1164 (9th Cir. 1991), cert. denied, 506 U.S. 1020
(1992)).5
5. The Ninth Circuit then denied petitioners' joint petition for rehearing
and rejected their suggestion of rehearing en banc. Pet. App. 25a-26a. Five
judges dissented from the denial of rehearing en banc. Id. at 26a.
ARGUMENT
The decision below is correct and in accord with the decisions of the three
other courts of appeals that have considered the validity of the Act of
Congress governing homosexual conduct in the military.6 See Thomasson v.
Perry, 80 F.3d 915 (4th Cir.) (en banc), cert. denied, 519 U.S. 948 (1996);
Selland v. Perry, 905 F. Supp. 260 (D. Md. 1995), aff'd, 100 F.3d 950 (4th
Cir. 1996) (Table), cert. denied, 520 U.S. 1210 (1997); Richenberg v. Perry,
97 F.3d 256 (8th Cir. 1996), cert. denied, 118 S. Ct. 45 (1997); Able v.
United States, 88 F.3d 1280 (2d Cir. 1996) (sustaining Act against First
Amendment and equal protection challenge, provided its underlying prohibition
of homosexual acts is valid); after remand, Able v. United States, 153 F.3d
628 (2d Cir. 1998) (sustaining Act's prohibition of homosexual acts), petition
for reh'g pending, No. 97-6205; Philips v. Perry, 106 F.3d 1420 (9th Cir.
1997) (sustaining Act's prohibition of homosexual acts); Thorne v. Department
of Defense, 139 F.3d 893 (4th Cir. 1997), cert. denied, No. 98-91 (Oct.
19, 1998). This Court recently denied certiorari in four of those cases
(Thomasson, Selland, Richenberg and Thorne), all of which presented First
Amendment and equal protection issues similar to those presented in this
case. There has been no change in circumstances that would warrant a different
result here. Accordingly, the petition for a writ of certiorari should be
denied.
1. The Ninth Circuit correctly rejected petitioners' argument (Pet. 11-18)
that 10 U.S.C. 654 and its implementing directive violate equal protection.
In sustaining the validity of the military's acts-directed policy, the decision
below comports with nearly twenty years of precedent in which that court
and every other court of appeals to consider the issue have upheld the constitutionality
of the military's authority to discharge service members who engage in homosexual
acts. Pet. App. 13a. Contrary to petitioners' contention (Pet. 11-13), the
Ninth Circuit did not err in deferring to the judgment of the Legislative
and Executive Branches, as well as military leaders, that service members
with a propensity or intent to engage in homosexual acts should also be
excluded as a means of fostering the legitimate aims of maintaining unit
cohesion, protecting privacy interests, and minimizing sexual tensions.
Pet. App. 3a-6a. This Court repeatedly has held that "judicial deference
. . . is at its apogee when legislative action under the congressional authority
to raise and support armies and make rules for their governance is challenged."
Goldman v. Weinberger, 475 U.S. 503, 508 (1986). Deference is especially
warranted here, where "the challenged restriction and its constitutionality
[were] extensively considered by Congress in hearings, committee and floor
debate." Philips v. Perry, 106 F.3d at 1425 (citing Rostker v. Goldberg,
453 U.S. 57, 64, 72 (1981)). Additionally, the judiciary must "give
great deference to the professional judgment of military authorities concerning
the relative importance of a particular military interest." Goldman,
475 U.S. at 507. Thus, in considering the validity of 10 U.S.C. 654, the
Ninth Circuit -quite correctly-was "particularly careful not to substitute
[its] judgment of what is desirable for that of Congress, or [its] own evaluation
of evidence for a reasonable evaluation by the Legislative Branch."
Rostker, 453 U.S. at 68.
Given the legitimate statutory aims, furthered by 10 U.S.C. 654, of promoting
unit cohesion, accommodating personal privacy, and reducing sexual tension
among service members, the Ninth Circuit correctly rejected (Pet. App. 13a)
the same argument that petitioners make here-namely, that the Act is impermissibly
based on invidious or irrational prejudice (Pet. 14). As the court held
in Philips, "[w]e cannot say that the [military's] concerns are based
on 'mere negative attitudes, or fear, unsubstantiated by factors which are
properly cognizable' by the military. Nor can we say that avoiding sexual
tensions lacks any 'footing in the realities' of the [military] environment."
106 F.3d at 1429 (citations omitted). The Second, Fourth, and Eighth Circuits
have similarly rejected the argument that the Act is based on impermissible
prejudice. Able, 155 F.3d at 634-636; Thomasson, 80 F.3d at 927-931; Richenberg,
97 F.3d at 261.
Petitioners err in asserting (Pet. 17) that the Act is irrational in presuming,
subject to rebuttal, that a service member who declares that he is a homosexual
has a propensity to engage in homosexual acts. The Ninth Circuit correctly
held that "it is rational to assume that both homosexuals and heterosexuals
are likely to act in accordance with their sexual drives." Pet. App.
15a-16a (quoting Richenberg, 97 F.3d at 262, and Steffan v. Perry, 41 F.3d
677, 692 (D.C. Cir. 1994) (en banc)) (internal quotation marks omitted).
Accord Able, 88 F.3d at 1296; Thomasson, 80 F.3d at 930. That the policy
accords a member a meaningful opportunity to rebut the presumption (Pet.
App. 16a-17a) renders the policy all the more fair and confirms that it
is acts-directed.7
Finally, petitioners' reliance (Pet. 15) on Romer v. Evans, 517 U.S. 620
(1996), is misplaced because there are at least four important distinctions
between Amendment 2 to the Colorado Constitution at issue in Romer and the
Act of Congress challenged here. First, 10 U.S.C. 654, which concerns military
service by persons who engage in homosexual conduct, is much narrower in
scope than Colorado's Amendment 2, which this Court described as a "sweeping"
and "unprecedented" measure that withdrew from homosexuals the
"protections against exclusion from an almost limitless number of transactions
and endeavors that constitute ordinary civic life in a free society,"
so much so as to "deem a class of persons a stranger to its laws."
517 U.S. at 627, 631, 633, 635. Second, Romer arose in the civilian context
and does not affect precedents, such as Parker v. Levy, 417 U.S. 733, 756
(1974), holding that "Congress is permitted to legislate both with
greater breadth and with greater flexibility" in the military context.
See Rostker v. Goldberg, supra (sustaining men-only draft law). Third, Colorado's
Amendment 2 classified on the basis of homosexual status (517 U.S. at 635),
while the Act of Congress at issue here classifies on the basis of past
or likely future prohibited homosexual acts. Fourth and most important,
the Act challenged here serves the legitimate objectives of prohibiting
homosexual acts in the military, promoting unit cohesion, protecting privacy
interests, and reducing sexual tensions, while this Court found that Amendment
2 had no legitimate objective. Ibid.8
2. The court of appeals also correctly held that the Act of Congress governing
homosexual conduct in the military is consistent with the First Amendment.
The Act treats a service member's statement that he is a homosexual as a
basis from which to presume, in the absence of rebuttal by him, that he
is a "homosexual" as defined by the Act, i.e., one "who engages
in, attempts to engage in, has a propensity to engage in, or intends to
engage in homosexual acts." 10 U.S.C. 654(f)(1). The Ninth Circuit
correctly held (Pet. App. 18a) that the First Amendment does not prohibit
such evidentiary use of a service member's statement. Able, 88 F.3d at 1292-1300;
Thomasson, 80 F.3d at 931-934. See Wayte v. United States, 470 U.S. 598
(1985). Petitioners were afforded the opportunity to rebut the presumption
in their administrative hearings, but failed to do so. Pet. App. 16a. In
addition, expressive conduct may be restricted in the military context if
it is "likely to interfere with * * * vital prerequisites for military
effectiveness." Brown v. Glines, 444 U.S. 348, 354 (1980). The express
legislative findings supporting the Act of Congress at issue (see 10 U.S.C.
654(a)) show that that test is met here.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
FRANK W. HUNGER
Assistant Attorney General
ANTHONY J. STEINMEYER
E. ROY HAWKENS
Attorneys
NOVEMBER 1998
1 The Act 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); Pet. App. 87a.
2 "Homosexual conduct" is defined by the directive as "a
homosexual act, a statement by the Service member that demonstrates a propensity
or intent to engage in homosexual acts, or a homosexual marriage or attempted
marriage." DoD Dir. No. 1332.30, Defs. ¶ 9; Pet. App. 92a.
3 Although the district court ordered that Holmes be reinstated, Holmes
stipulated that he would not seek reinstatement pending appeal. Pet. App.
10a.
4 Until recently, Watson served on active duty pursuant to an injunctive
order. Pet. App. 8a. However, by order dated August 18, 1998, the Ninth
Circuit vacated the injunctive order without prejudice to Watson's litigative
rights, and Watson received an honorable discharge on September 1, 1998.
5 Judge Reinhardt dissented. Pet. App. 18a-24a. In his view, the policy,
"while purporting to allow homosexuals to serve in this country's armed
forces, unconstitutionally conditions their service on an abridgment of
their free speech rights under the First Amendment." Pet. App. 24a.
6 Petitioners erroneously state (Pet. 10) that only "two circuits"
have upheld 10 U.S.C. 654. As shown above, four circuits-the Second, Fourth,
Eighth, and Ninth Circuits-have sustained the constitutionality of the Act
of Congress governing homosexual conduct in the military.
7 Contrary to petitioners' contention (Pet. 17), Robinson v. California,
370 U.S. 660 (1962), Powell v. Texas, 392 U.S. 514 (1968), and Jacobson
v. United States, 503 U.S. 540 (1992), do not cast doubt on the validity
of the presumption. Those cases involved presumptions arising from a defendant's
status in the context of criminal proceedings, where "[p]unishment
for a status is particularly obnoxious, and in many instances can reasonably
be called cruel and unusual." Powell, 392 U.S. at 543 (Black, J., concurring).
Section 654, in contrast, involves an administrative separation from the
military, which is not a criminal proceeding and does not impose punishment.
See Garret v. Lehman, 751 F.2d 997, 1002-1003 (9th Cir. 1985).
8 Petitioners' suggestion (Pet. 17) that certiorari should be granted to
resolve a conflict between this case and Meinhold v. Department of Defense,
34 F.3d 1469 (9th Cir. 1994), lacks merit. Certiorari is not warranted to
resolve allegedly inconsistent intracircuit decisions. See Wisniewski v.
United States, 353 U.S. 901, 902 (1957) (per curiam). Moreover, as the Ninth
Circuit's analysis plainly shows (Pet. App. 14a, 16a), this case is readily
distinguishable from its prior decision in Meinhold.