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ABLE v. UNITED STATES

March 30, 1995

LIEUTENANT COLONEL JANE ABLE, PETTY OFFICER ROBERT HEIGL, FIRST LIEUTENANT KENNETH OSBORN, SERGEANT STEVEN SPENCER, LIEUTENANT RICHARD von WOHLD, and SEAMAN WERNER ZEHR, Plaintiffs, against UNITED STATES OF AMERICA, WILLIAM J. PERRY, SECRETARY OF DEFENSE, in his official capacity, and FEDERICO F. PENA, SECRETARY OF TRANSPORTATION, in his official capacity, Defendants.

Eugene H. Nickerson, U.S. District Judge


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) who have stated that they are homosexual, brought this action for an order (1) declaring invalid under the First and Fifth Amendments Section 571 of the National Defense Authorization Act for the Fiscal Year 1994, 10 U.S.C. § 654 (the Act), concerning a new policy as to homosexuals, and the directives issued under the Act (the Directives), and (2) enjoining the government from enforcing the Act and the Directives.

 This court has jurisdiction under 28 U.S.C. §§ 1331 and 1346. Venue lies here under 28 U.S.C. § 1391.

 On April 4 and May 9, 1994, this court on plaintiffs' motions preliminarily enjoined defendants from enforcing the Act and the Directives against plaintiffs based on their statements of sexual orientation. Able v. U.S., 847 F. Supp. 1038 (E.D.N.Y. 1994) Able v. U.S., No. 94 CV 0974 (E.D.N.Y. May 9, 1994).

 On September 14, 1994, this court granted defendants' motion to dismiss the complaint as to Plaintiffs' intimate association, vagueness and overbreadth claims, but denied defendants' motion to dismiss the first amendment and equal protection claims. Able v. U.S., 863 F. Supp. 112 (E.D.N.Y. 1994).

 While the motion to dismiss was pending, defendants appealed the court's preliminary injunction orders pursuant to 28 U.S.C. § 1292(a)(1). On January 3, 1995, the Court of Appeals for the Second Circuit remanded the case, holding that this court had not applied the proper preliminary injunction standard and ordering consolidation of a preliminary injunction hearing with a trial on the merits of the permanent injunction. The Court of Appeals directed that "the preliminary injunction orders shall remain in effect until March 31, 1995 upon which date they shall expire unless reentered by the district court following a trial on the merits. . . ." Able v. U.S., 44 F.3d 128, 133 (2d Cir. 1995) (per curiam).

 On March 6, 1995, this court held that under the pleadings plaintiffs lacked standing to claim that (1) the Act violates their right to expressive association, (2) subsection 654(b)(1) violates their rights to free expression and equal protection, and (3) subsection 654(b)(3) violates their right to equal protection. Able v. U.S., No. 94 CV 0974 (E.D.N.Y. Mar. 6, 1995).

 From March 13 to March 16, 1995 the court tried the merits of plaintiffs' remaining claims.

 On January 29, 1993 President Clinton directed then Secretary of Defense Les Aspin to submit a draft executive order "ending discrimination on the basis of sexual orientation in determining who may serve" in the Services, in a manner "consistent with the high standards of combat effectiveness and unit cohesion our Armed Forces must maintain." Memorandum from President Clinton to the Secretary of Defense (Jan. 29, 1993), Ex. PX-21.

 On July 19, 1993, Secretary Aspin announced a new policy as to the service of gay men and lesbians in the Services, stating that "sexual orientation is considered a personal and private matter . . . and is not a bar to service entry or continued service unless manifested by homosexual conduct." Memorandum from Secretary Aspin to the Secretaries of the Army, Navy and Air Force and the Chairman of the Joint Chiefs of Staff (Jul. 19, 1993), Ex. PX-180.

 From March through late July 1993 the Armed Services Committees of the House and Senate held public hearings on the matter. Secretary Aspin presented the administration's new policy to the Senate Armed Services Committee on July 20, 1993.

 Both Committees issued reports recommending legislation practically identical to what is now the Act, which became effective November 30, 1993. The Directives became effective February 28, 1994. On March 15, 1994, the United States Coast Guard announced its policy on homosexual conduct "in lock step" with that of the other military services, Memorandum from Secretary Of Transportation Federico Pena to the Commandant, United States Coast Guard (Mar. 15, 1993), Ex. JX-13 at p. B301327.

 THE ACT AND THE DIRECTIVES

 Section 654, entitled Policy Concerning Homosexuality in the Armed Forces, contains in subsection (a) "fifteen findings" that say, among other things:

 
(6) Success in combat requires military units that are characterized by high morale, good order and discipline, and unit cohesion.
 
(13) The prohibition against homosexual conduct is a long-standing element of military law that continues to be necessary in the unique circumstances of military service.
 
(14) The armed forces must maintain personnel policies that exclude persons whose presence in the armed forces would create an unacceptable risk to the armed forces' high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability.
 
(15) 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.

 Subsection (b), setting forth the Act's policy, states, in substance, that a member "shall be separated" from the Services if one or more of the following three findings is made:

 (1) The member is found to have engaged, attempted to engage, or solicited another to engage, in homosexual acts, unless the member has demonstrated, among other things, that "such conduct" departs from the member's usual behavior and he or she "does not have a propensity or intent to engage in homosexual acts."

 (2) The member "has stated that he or she is a homosexual or bisexual or words to that effect," unless "there is a further finding" made in accordance with 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."

 (3) The member has married or attempted to marry someone of the same sex.

 Subsection (f) contains definitions. "Homosexual" includes "the terms 'gay' and 'lesbian'" and means a person who engages, attempts to engage, has a "propensity" to engage, or "intends" to engage, in homosexual acts. The term "homosexual act" means any bodily contact between members of the same sex to satisfy sexual desires or any such contact that a reasonable person would understand to "demonstrate a propensity" or "intent" to engage in such an act. The Act does not define the word "propensity."

 On December 21, 1993 Secretary Aspin issued a memorandum and Directives concerning the implementation of the new policy. Memorandum from Secretary Aspin to the Secretaries of the Military Departments et al. (Dec. 21, 1993), Ex. JX-4. They provided that an applicant to become a member will not be asked about his or her sexual orientation, that "homosexual orientation is not a bar" to "service entry or continued service," but that "homosexual conduct" is. Such "conduct" includes not only homosexual "acts" but also a statement by a member or applicant that "demonstrates a propensity or intent to engage" in such acts. A statement that demonstrates the "propensity" will thus require separation unless the member rebuts a presumption that he or she engages or intends to engage in "homosexual acts" or has a "propensity" to do so. Directives 1322.14, 1332.30, & 1304.26, Exs. JX-6, JX-7, & JX-9.

 As examples of statements giving rise to the presumption the Directives include "I am a homosexual," "I am gay," "I am a lesbian," and "I have a homosexual orientation." Id. The Directives purport to distinguish homosexual "orientation" from homosexual "propensity," defining homosexual "orientation" as "an abstract sexual preference for persons of a particular sex," and homosexual "propensity" as evidencing "a likelihood that a person engages in or will engage in" homosexual acts. Id.

 The Directives go on to say that "a statement . . . demonstrating 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." Id.

 The Directives do not explain how an "orientation" means an "abstract preference" if not revealed but if admitted becomes evidence of a "likelihood" to commit acts, a likelihood that requires discharge.

 THE ISSUE BEFORE THE COURT

 The six plaintiffs have "stated" in their complaint that they are "homosexuals." That is the only thing that they have done that is now before the court. Under the state of the pleadings the court thus does not consider the case to draw into question the validity of any subsection of the Act other than (b)(2).

 Subsection (b)(2) has two aspects pertinent to this case. It provides for the discharge of a member because he or she (1) has made a "statement" and (2) the statement is of his or her status, that is, his or her "propensity."

 Plaintiffs urge that subsection (b)(2) is invalid both under the First Amendment and the equal protection component of the due process clause of the Fifth Amendment.

 THE LEGISLATIVE PURPOSE

 Before addressing the constitutional validity of subsection (b)(2) the court looks to the text of the entire Act to determine the ...


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