The opinion of the court was delivered by: EUGENE H. NICKERSON
NICKERSON, District Judge:
Plaintiffs, six members of the United States Armed Services (the Services) alleging they are homosexual, brought this action against the United States and the Secretary of Defense for (a) a declaration that Section 571 of the National Defense Authorization Act for the Fiscal Year 1994 (the Act), 10 U.S.C. § 654, concerning the Service's policy as to homosexuals, and Regulations issued under the Act, are invalid under the First and Fifth Amendments, and (b) an order enjoining the defendants from enforcing the Act and the Regulations. Defendants have moved under Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss the complaint.
Defendants say the court should dismiss the complaint without prejudice to allow defendants to subject plaintiffs to administrative discharge proceedings where plaintiffs allegedly could prove that they have no intent or propensity to engage in homosexual acts.
In Able I this contention was before the court and rejected on the grounds that "plaintiffs raise constitutional questions and irreparable injury will occur without preliminary judicial relief." Able I, 847 F. Supp. at 1043 (citing Guitard v. United States Secretary of Navy, 967 F.2d 737, 741 (2d Cir. 1992)); see also Downen v. Warner, 481 F.2d 642, 643 (9th Cir. 1973) (constitutional issues "singularly suited to a judicial forum and clearly inappropriate to an administrative board"). The court adheres to its holding in Able I.
The first claim says, in pertinent part,
24. The Act and the DoD Regulations violate plaintiffs' right to equal protection of the law under the Fifth Amendment to the United States Constitution. The Act and the DoD Regulations intentionally discriminate against gay and lesbian service members, including plaintiffs, and subject them to different and punitive treatment.
In moving for dismissal of this claim defendants say the legislative history of the Act, the Act itself, and the Regulations show that both the Act and the Regulations bear a rational relationship to a legitimate governmental goal. They thus argue that without taking any evidence the court should determine as a matter of law the Act and the Regulations do not deprive plaintiffs of equal protection.
As it did in Able I, this court assumes for the purposes of this motion that the Act and Regulations are subject to only minimal equal protection scrutiny. By that standard they are valid if the distinction they make is "rationally related to a legitimate governmental purpose," City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 446, 105 S. Ct. 3249, 3258, 87 L. Ed. 2d 313 (1985).
Under Rule 12(b)(6) the court may not dismiss the claim unless it determines that there is no set of facts under which the Act and Regulations violate equal protection. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957). The court cannot make that judgment on the face of the complaint.
Congress is entitled to deference where the constitutional rights of service members are implicated. See, e.g., Weiss v. United States, U.S. , 114 S. Ct. 752, 761 (1994). But "Congress, of course, is subject to the requirements of the Due Process Clause when legislating in the area of military affairs." Id. at 760. Plaintiffs are entitled to attempt to prove that the findings underlying the Act are based solely on prejudice or fear of prejudice, see Palmore v. Sidoti, 466 U.S. 429, 433, 104 S. Ct. 1879, 1882, 80 L. Ed. 2d 421 (1984), or otherwise that there is no rational relationship between the Act's classification and a legitimate government purpose.
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The second claim says, in ...