In its latest presentation, the government proffers several justifications to support the differential treatment of homosexuals and heterosexuals prohibiting homosexuals from revealing their sexual orientation in any way, whether by word or deed. The government says that the Act helps foster unit cohesion, promotes the privacy of heterosexuals, and reduces sexual tensions.
The government does not justify its discrimination by reference to some defect in the performance of homosexuals, or claim that they represent a security risk as likely targets for blackmail, see Defense Personnel Security Research and Education Center, Nonconforming Sexual Orientation and Military Suitability, Dec. 1988, Ex. PX-12, at 27-32, or that they are apt to seduce heterosexuals. See S. Rep. No. 103-112, JX-15, at 279 (statement of General Powell).
Since there is nothing in the record to suggest any additional reason motivating the Act, the court examines the justifications offered here.
One of the government's theories is that the Act "furthers the vital military goal of unit cohesion." Unity in a fighting group is an important government interest, as was testified by Generals H. Norman Schwartzkopf and Colin Powell. S. Rep. No. 103-112, Ex. JX-15, at 274, 275. But that fact does not end the court's inquiry. Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724 n.9, 102 S. Ct. 3331, 3336 n.9, 73 L. Ed. 2d 1090 (1982). The court must consider whether the Act seeks to further that interest in a legitimate way.
Other than the arguments as to privacy and sexual tension addressed below, the only explanation the government offers for the perceived "disruptive effect that the presence of members who engage in homosexual acts would have on other members of the unit" is that their presence would raise "concerns" of heterosexual service members "based on moral precepts and ethical values." Defendants' Reply to Plaintiff's Post-Trial Brief, at 10. In other words, the known presence of homosexuals may disrupt the unit because heterosexual members may morally disapprove of homosexuals.
This is an outright confession that "unit cohesion" is a euphemism for catering to the prejudices of heterosexuals. There is overwhelming evidence in the record to support this confession.
The Report of the Association of the United States Army states: "Heterosexual animosity toward known homosexuals can cause latent or even overt hostility, resulting in degradation of team or unit esprit." H.A.S.C. 103-18, Ex. JX-2, at 337. And General H. Norman Schwartzkopf said that "the introduction of an open homosexual into a small unit immediately polarizes that unit . . . . For whatever reason, the organization is divided into a majority who oppose, a small minority who approve, and other groups who either do not care or wish the problem would go away." S. Hrg. No. 103-845, Ex. JX-1, at 595-96. General John P. Otjen, the chairman of the Military Working Group recommending the policy that became law, testified that "when somebody identifies themselves [sic] as homosexual" that is "disruptive to unit cohesion." S. Hrg. No. 103-845, Ex. JX-1, at 780; see also S. Rep. No. 103-112, Ex. JX-15, at 280 (testimony of Lieutenant General Calvin Waller and of Command Master Chief David Borne).
The structure of the Act confirms these statements that it is predicated on the perceptions of heterosexuals. That the definition of a "homosexual act" includes bodily contacts a "reasonable person would understand" to show a "propensity" to engage in other homosexual acts, shows that the Act is aimed at those perceptions.
The opinion of Generals Powell and Schwartzkopf was that, while homosexuals were eligible to serve as "good Americans," they should remain only so long as they stay in the closet masquerading as heterosexuals because "open homosexuality" would arouse the animosity of heterosexuals. The minute they are seen off duty and off base holding hands with someone of the same sex they should be discharged.
Given the conceded ability of homosexuals to contribute effectively to their units, the only conceivable way that the presence of known homosexuals could undermine the cohesion of the unit is "by the negative reactions of service members who disapprove of homosexuality." Philips v. Perry, 106 F.3d 1420, 1435 (9th Cir. 1997) (Fletcher, J., dissenting); cf. City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 450, 105 S. Ct. 3249, 3260, 87 L. Ed. 2d 313 (1985) (only discernable purpose for requiring permit for home for mentally retarded is "irrational prejudice").
The private prejudices of heterosexual service members are illegitimate reasons for government-sanctioned discrimination against gay and lesbian service members. See Romer, 116 S. Ct. at 1627. As the Supreme Court, in an opinion by Chief Justice Burger, admonished:
The Constitution cannot control such prejudices but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect. 'Public officials sworn to uphold the Constitution may not avoid a constitutional duty by bowing to the hypothetical effects of private . . . prejudice that they assume to be both widely and deeply held.'