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ABLE v. UNITED STATES

July 2, 1997

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.D.J.


The opinion of the court was delivered by: NICKERSON

NICKERSON, District Judge:

 The United States Court of Appeals for the Second Circuit remanded this case to this court to decide whether or not section 571(b)(1) of the National Defense Authorization Act for the Fiscal Year 1994, 10 U.S.C. § 654(b)(1) (the Act), complies with the Constitution. Able v. United States, 88 F.3d 1280 (2d Cir. 1996).

 I.

 Plaintiffs, six homosexuals serving in the Armed Forces or the Coast Guard, brought the case to challenge 10 U.S.C. § 654(b) of the Act, by which Congress enacted the so-called "Don't Ask, Don't Tell" policy concerning homosexuals in the armed forces.

 Section 654(b) contains two subsections subjecting homosexuals to mandatory discharge.

 Subsection (b)(1) requires dismissal of any member of the armed forces who "has engaged in, or solicited another to engage in a homosexual act or acts," unless he or she satisfies five conditions, including demonstrating that he or she "does not have a propensity or intent to engage in homosexual acts."

 "Homosexual act" is defined to mean "(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).

 Subsection (b)(2) of the Act requires discharge of any member who "has stated that he or she is a homosexual or bisexual, or words to that effect" (including, according to the Directives issued under the Act, "I have a homosexual orientation"), unless the member demonstrates 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."

 This court declined to determine the constitutionality of subsection (b)(1) relating to homosexual acts on the ground plaintiffs lacked standing to challenge that provision. Able v. United States, No. 94 CV 0974, 1995 WL 116322 (E.D.N.Y. Mar. 14, 1995). The court also held that subsection (b)(2) relating to statements of homosexual orientation impermissibly regulated speech based on content in violation of the First Amendment. Able v. United States, 880 F. Supp. 968 (E.D.N.Y. 1995).

 On appeal, the Court of Appeals determined that plaintiffs had standing to challenge subsection (b)(1) and that the constitutionality of subsection (b)(2) hinged on that of the other subsection. The Court said that the two subsections "rise or fall together," that the restriction on speech in (b)(2), while valid assuming subsection (b)(1) was valid, was "incidental and wholly subservient to the restriction on acts" in (b)(1), and that "the government does not contend (nor could it) that in the event that § 654(b)(1) is held to be unconstitutional, § 654(b)(2) may still be upheld." Able, 88 F.3d at 1292, 1300. Accordingly, the Court of Appeals remanded for this court to decide whether subsection (b)(1) comports with equal protection.

 II.

 The Equal Protection Clause of the Fourteenth Amendment to the Constitution provides that no State shall "deny to any person within its jurisdiction the equal protection of the laws." The Supreme Court has decided that the Due Process Clause of the Fifth Amendment imposes the same constitutional requirements on the federal government as the Equal Protection Clause imposes on state governments. Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2, 95 S. Ct. 1225, 1228 n.2, 43 L. Ed. 2d 514 (1975); Bolling v. Sharpe, 347 U.S. 497, 74 S. Ct. 693, 98 L. Ed. 884 (1954).

 In 1996, the Supreme Court struck down as violative of the Equal Protection Clause a state constitutional amendment categorically prohibiting gay men and lesbians from obtaining state or local legal protection from discrimination based on their sexual orientation. Romer v. Evans, 517 U.S. 620, 116 S. Ct. 1620 (1996). That case established that government discrimination against homosexuals in and of itself violates the constitutional guarantee of equal protection. Id. at 1628-29. Implicit in this holding is a determination that such discrimination, without more, is either inherently irrational or invidious. Id. at 1627.

 The Act admittedly treats heterosexuals and homosexuals differently, and the issue is whether that different treatment deprives homosexuals of their equal protection rights.

 III.

 To put the case in context it is useful to consider some history of the treatment of gay men and lesbians over the centuries.

 A.

 During the Holocaust, the Nazis persecuted homosexuals along with Jews, gypsies, and other groups, using the pink triangle as the symbol to designate homosexuals. See Kenji Yoshino, Suspect Symbols: The Literary Argument for Heightened Scrutiny for Gays, 96 Colum. L. Rev. 1753 (1996). But such prejudice has not always been and is not now shared in large portions of the world.

 The Ancient Greeks considered homosexual desire to be "ubiquitous and entirely ordinary." Boswell, supra, at 49. Similarly, "Roman society, at least in its urban centers, did not for the most part distinguish gay people from others and regarded homosexual interest and practice as an ordinary part of the range of human eroticism." Id. at 333. Gay people were fully integrated into Roman culture, and "neither they nor their contemporaries regarded their inclinations as harmful, bizarre, immoral, or threatening." Id. at 87. Consistent with this atmosphere of tolerance, the early Christian Church did not "oppose[] homosexual behavior per se." Id. at 333.

 Visible hostility toward homosexuality did not appear in the West until the third century and lasted through the sixth century -- during the period of the dissolution of the Roman state. Id. During the Early Middle Ages, neither gay people nor opposition to homosexuality were particularly evident in western Europe. Id. Until the twelfth century, moral theology was basically indifferent to homosexuality, and legal sanctions for homosexual acts were "very rare and of dubious efficacy." Id. at 333-34. During the eleventh century, gays rose to prominence and "opposition to gay sexuality appeared rarely and more as aesthetic partisanship than as moral censure." Id. at 334. Medieval China and Japan were also tolerant homosexual activity, at least involving men. See Richard A. Posner, Sex and Reason 68-69 (1992).

 In modern times tolerance of homosexuality has been widespread. "It is common knowledge that in this century homosexuals have risen high in our own public service -- both in Congress and in the Executive Branch -- and have served with distinction." Boutilier v. I.N.S., 387 U.S. 118, 129, 87 S. Ct. 1563, 1569, 18 L. Ed. 2d 661 (1967) (Douglas, J., dissenting). A 1951 survey of seventy-six societies other than that of the United States shows that in forty-nine homosexual activities were considered "normal and socially acceptable." Clellan S. Ford & Frank A. Beach, Patterns of Sexual Behavior 130-31 (1951).

 Many nations and all but twenty-two of the United States have decriminalized noncoercive sexual acts, such as heterosexual sodomy and homosexual activity. Posner, supra, at 56. Many states and localities have enacted legislation prohibiting discrimination in employment and in the provision of goods and services based on sexual orientation. See Development in the Law -- Statutory Protection for Gays and Lesbians in Private Employment, 109 Harv. L. Rev. 1625 (1996).

 Recent public opinion polls reflect the increasing social tolerance of homosexuality in this country. See, e.g., United States General Accounting Office, Defense Force Management, DOD's Policy on Homosexuality, Report to Congressional Requesters, GAO/NSIAD-92-98, June, 1992, Ex. PX-5, at 39-40. Two national polls found that a majority of Americans support the admission to the Armed Forces of gay men and lesbians. A March 1991 Gallop Poll found that 69% of respondents believed that homosexuals should be admitted to the armed forces; and a national poll conducted by Penn and Schoen Associates in April 1991 found that 81% of Americans believed that homosexuals should not be discharged from military service solely because of their sexual orientation. See id.

 Many countries prohibit discrimination against homosexuals. See, e.g., Posner, supra, at 56-58, 161-73. Countries as diverse as the Republic of Korea, Canada, Sweden, Israel, and Germany all permit homosexuals to serve in their militaries. See United States General Accounting Office, Homosexuals in the Military: Policies and Practices of Foreign Countries, Report to Senator John W. Warner, GAO/NSIAD-93-215, June, 1993, Ex. PX-7, at 5. Military officials in the latter four countries reported that "the presence of homosexuals in the military is not an issue and has not created problems in the functioning of military units" or "adversely affected unit readiness, effectiveness, cohesion, or morale." Id. at 3, 10.

 B.

 While social and political tolerance of homosexuality is increasing, gay men and lesbians have endured a long history of discrimination, both official and private. Beginning in the second half of the twelfth century "virulent hostility appeared in popular literature and eventually spread to theological and legal writings as well." Boswell, supra, at 334. The first ecumenical council to rule on homosexual acts -- Lateran III in 1179 -- required all laymen found to have committed homosexual acts to "suffer excommunication and be cast out from the community of the faithful." Id. at 277. By the later Middle Ages, homosexuality became more and more associated with heresy. Id. at 284.

 The "earliest and most drastic legislation against gay people enacted by any government of the High Middle Ages" were laws passed by the European conquerors of Jerusalem imposing death by burning on homosexual men. Id. at 281. Between 1500 and 1800 communities of homosexuals were persecuted throughout Western Europe. See William N. Eskridge, Jr., The Social Constructionist Critique of Posner's Sex and Reason: Steps Toward a Gaylegal Agenda, 102 Yale L.J. 333, 370 (1992).

 The Nazi persecution of homosexuals noted above was the most extreme manifestation in modern times of the prejudice against homosexuals. But in our country, homosexuals have been excluded from various government jobs, from many public benefits, and from immigration and naturalization. See, e.g., William N. Eskridge, Privacy Jurisprudence and the Apartheid of the Closet, 1946-61, 24 Fla. St. U. L. Rev. 703 (1997); Harris M. Miller II, Note, An Argument for the Application of Equal Protection Heightened Scrutiny to Classifications Based on Homosexuality, 57 S. Cal. L. Rev. 797, 803-807, 824-25 (1984); J. D'Emilio, Sexual Politics, Sexual Communities: The Making of a Homosexual Minority in the United States 1940-1970 (1983). Members of their own communities and even public officials have frequently vilified them. See, e.g., Gay American History: Lesbians and Gay Men in the United States 11-128 (Jonathan N. Katz, ed. 1992).

 A study commissioned by the National Institute of Justice found that gay men and lesbians "are probably the most frequent victims" of hate crimes. See Kendall Thomas, Beyond the Privacy Principle, 92 Colum. L. Rev. 1431, 1464 (1992) (quoting Peter Finn & Taylor McNeil, The Response of the Criminal Justice System to Bias Crime: An Exploratory Review 2 (1987)). Congress recognized the problem of hate crimes against gay men and lesbians when it included sexual orientation among the bases for pernicious hate crimes to be reported under Hate Crime Statistics Act, Pub. L. No. 101-275, Apr. 23, 1990, 104 Stat. 140 (codified at 28 U.S.C. § 534 note).

 Of the hate crimes reported voluntarily by law enforcement officials in 1994, twelve percent were based on the victim's sexual orientation. See, e.g., Congressional statement of Charles W. Archer, Assistant Director, Criminal Justice Information Division of the Federal Bureau of Investigation, Mar. 19, 1996, 1996 WL 7136929. The results were higher in some states. See, e.g., Aurelio Rojas, State's Tolerant Image Tarnished, S.F. Chron., Jul. 8, 1996, at A1 (18% of hate crimes reported in California related to sexual orientation). Abuse of gay men and lesbians occurs even in the Armed Forces. See S. Rep. No. 103-112, 103d Cong., 1st Sess., Ex. JX-15, at 289 (1993) [hereinafter S. Rep. No. 103-112] (noting the existence of such abuse and condemning it). Attacks against gays have been especially violent and brutal. See Yoshino, supra, at 1824-25.

 Gay men and lesbians have also been victims of police harassment. See, e.g., Eskridge, Privacy, supra, at 710-33, 753-58, 761-62 (1997). The well-known gay riot occurring at the Stonewall Inn in New York City in June, 1969 followed a routine police raid of establishments frequented by gay men and lesbians. See, e.g., Urvashi Vaid, Virtual Equality 54-55 (1996); Martin Duberman, Stonewall (1993).

 IV.

 In the United States military establishment from the early 1920s through the 1970s the regulations treated homosexuals as unfit for service because they had a "personality disorder" or a "mental illness." Policy Concerning Homosexuality in the Armed Forces: Hearings Before the Senate Comm. on Armed Services, S. Hrg. No. 103-845, 103d Cong., 2d Sess. (1993) [hereinafter S. Hrg. No. 103-845], Ex. JX-1, vol. 1, at 13-14 (statement of Dr. David F. Burrelli). In 1982 the Department of Defense adopted a policy of mandating dismissal of homosexuals in order, among other things, to "ensure the integrity of the system of rank and command" and "prevent breaches of security." Id. at 15.

 As late as 1993 some military advocates urged retention of an outright ban on admission of homosexuals because they could not be trusted and were "far more likely" to "spread" infectious diseases. Policy Implications of Lifting the Ban on Homosexuals in the Military: Hearings Before the House Comm. on Armed Services, H.A.S.C. No. 103-18, 103d Cong., 1st Sess. (1993) [hereinafter H.A.S.C. No. 103-18], Ex. JX-2, at 89-90 (statement of Col. John Ripley).

 The government has now abandoned any such contentions. The legislative record shows that the Act and the Directives adopted under it are not premised on the prior beliefs. The government says that Congress "clarified that the proscription on service has nothing to do with unjustified assumptions that homosexuals are not just as capable physically, mentally and psychologically to serve in the United States military as heterosexuals." Transcript of Government's Closing Statement, Nov. 18, 1996, at 256.

 The government agrees also that homosexuals are no more likely than heterosexuals to violate the military code of conduct or other rules generally. Defendants' Responses to Plaintiffs' Requests for Admission, Ex. PX-13, at 5-8.

 Many high ranking officers vouched for the ability of homosexuals to serve honorably, conscientiously, and competently. For example, General Colin Powell referred to them as "proud, brave, loyal, good Americans," 1993 Defense Budget House Hearing, 102d Cong., at 45 (1993), and said they had "served well in the past and are continuing to serve well." S. Hrg. No. 103-845, Ex. JX-1, vol. 3, at 707. General Norman Schwartzkopf echoed these views, stating that "homosexuals ...


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