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FOIA Number: 2015-0017-F
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This is not a textual record. This is used as an
administrative marker by the William J. Clinton
Presidential Library Staff.
Collection/Record Group:
Clinton Presidential Records
Subgroup/Office of Origin:
Counsel Office
Series/Staff Member:
Bruce Lindsey
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OA/ID Number:
24795
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[Gays in the Military]
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106
3
7
1
I waut to be
THE WHITE HOUSE
consultud lefors
WASHINGTON
final Diasion
November 17, 1993
orient
MEMORANDUM FOR THE RRESIDENT
is Made-
CLIFFORD M. SLOAN as
FROM:
ASSOCIATE COUNSEL TO THE PRESIDENT
SUBJECT:
New gays-in-the-military decision
Overview
As you know, the U.S. Court of Appeals for the D.C. Circuit
yesterday issued a major gays-in-the-military decision. In a
decision by Chief Judge Mikva, the court held that adverse actions
taken against a standout midshipman, on the basis of his statements
of homosexuality, are unconstitutional.
The Steffan Decision
Joseph Steffan was an exceptional midshipman at the United
States Naval Academy -- a recipient of numerous honors, a Batallion
Commander (one of the Academy's ten highest ranking midshipmen),
and a soloist singing the National Anthem at the Army-Navy game in
his junior and senior years. In February 1987, during Steffan's
senior year, the Naval Intelligence Service (NIS) received a report
that Steffan had stated to another student that he was gay.
Steffan was subsequently asked if he was a homosexual and twice
answered, "Yes, sir." On the basis of these statements, academy
officials instituted discharge proceedings, changed Steffan's
ratings, and advised him to resign. Six weeks before his scheduled
graduation from the Academy, he resigned.
Steffan filed suit, claiming that his constitutional right to
equal protection had been violated. The D.C. Circuit agreed. It
found that the military regulations in effect at the time were "not
rationally related to any legitimate goal" and rejected each of the
military's stated reasons for the former policy. The court
concluded:
Tax
(1) the military's former policy addresses status, not
conduct;
predictions () about conduct or a "propensity" to conduct;
it is unreasonable to use status as a basis for
(3) the perceived effect on morale, discipline, and
recruitment of heterosexuals cannot be accepted because '[t]he
Constitution does not allow Government to subordinate a class
of persons simply because others do not like them";
and
(4) the "privacy" concerns are invalid -- the concerns
represent either an untenable assumption that homosexuals will
"stare" or an impermissible deference to "the irrational fears
and stereotypes of third parties."
It should be noted that the court's panel in this case --
Mikva, Patricia Wald, and Harry Edwards -- is quite liberal and may
not reflect the views of the entire D.C. Circuit.
Effect of the Steffan decision on the new policy
The court's opinion explicitly states that the new policy is
"not at issue" in Steffan and that the decision applies only to the
old policy. The court's view of the impermissibility of using
statements of homosexuality as a ground for discharge under the old
policy, however, may well have implications for the new policy.
One difference, of course, is that the new policy contains the
explicit rebuttable presumption. (DOJ has argued that there was an
opportunity to rebut under the old policy). But it is far from
clear whether the rebuttable presumption would be sufficient to
overcome the decision and reasoning in Steffan.
Next steps
In consultation with DOD and DOJ, Bruce, George, and the
Counsel's office will be reviewing various options. Among the
possible choices are: (1) an appeal to the Supreme Court in the
Steffan case; (2) a request for en banc review by the entire D.C.
Circuit in the Steffan case; (3) an announcement that we will not
appeal the Steffan decision because we want to focus on the new
policy; and (4) possible actions to expedite judicial review of the
new policy (so that the issue can be put to rest).
Talking points
Comments on the Steffan decision should be as limited as
possible. It would be appropriate simply to say that we are
reviewing the Steffan decision and that we have no further comment
on it at this time. You may also wish to say that, in our system
of government, courts are always the ultimate judges of
constitutional challenges to government policies.
:
Document No.
WHITE HOUSE STAFFING MEMORANDUM
DATE: 02/16/95
ACTION/CONCURRENCE/COMMENT DUE BY: 8:15 AM 02/17
SUBJECT: PRESIDENTIAL REMARKS: J. WILLIAM FULBRIGHT MEMORIAL SERVICE
ON 02/17
ACTION FYI
ACTION FYI
VICE PRESIDENT
QUINN
PANETTA
A
RASCO
McLARTY
X
RUBIN
ICKES
A
SEGAL
BOWLES
X
STEPHANOPOULOS
RIVLIN
TYSON
EMANUEL
WEBSTER
GEARAN
N
WILLIAMS
GIBBONS
Curry
GRIFFIN
HALE
HERMAN
LAKE
LINDSEY
MIKVA
McCURRY
McGINTY
REMARKS:
RESPONSE: Comments to Baer by 8:15 am
JOHN D. PODESTA
Assistant to the President
and Staff Secretary
Ext. 2702
2/16/95,7:30p.m.
President William Jefferson Clinton
Remarks at the Funeral of J. William Fulbright
Washington Cathedral
February 17, 1995
In the words of the passage we read moments ago, let us now
praise this famous man. J. William Fulbright changed forever the
lives of each of us here, of men and women across our land and
throughout the world.
To his beloved wife Harriet, to his daughters and to hers,
to their husbands and to his five grandchildren: I say on behalf
of all Americans, you are in our thoughts and our prayers, as J.
William Fulbright will be for all our days.
But, as we remember him, we must keep in mind the title
Harriet chose for this service: We are here to celebrate and give
thanks for the life of James William Fulbright. Those who loved
him knew how much he disliked austere funerals. He would want us
to leave this place not in sorrow, but in hope; not with a sense
of loss but with a sense of the God-given possibility that lives
in every one of us to carry on his work.
I want to begin where he began, where many of us here had
important beginnings -- in Fayetteville, the seat of the
University of Arkansas. There, he was the President of that great
university before he went to Congress.
No matter how high he climbed, the essence of William
Fulbright was the essence of his work there: A public educator --
a teacher -- in public life. He was my teacher, my mentor, one
of the people who inspired in me the spirit of public service. I
worked in his 1968 reelection campaign. But long before I ever
knew him, he touched my life, much as he touched the lives of
generation after generation of young people in Arkansas.
It is almost impossible to capture for you his impact on
those of us who grew up in that small state during the 40s, 50s
and 60s. Others scorned us, called us backwards. But we knew that
we had a Senator in Washington who doubled the IQ of any room he
walked into. That gave us hope that we, too, could amount to
something.
He taught us that education could lift us up. And he made us
believe that our obligation was to build our minds and use them,
as he did, to engage in the action and passion of our times.
He believed in the power of reason over the power of fear
and that we should always try to see the other side of an
argument. I remember working for him as a young man in that
campaign, driving him around the state. Sometimes I would get
exasperated arguing with him, because, of course, I could never
win. One day, we were in a town, and I started to drive back out
1
of town the same way I had driven in. I would have taken us 100
miles in the wrong direction -- except, of course, I received the
benefit of his courtly correction.
His lesson to those of us who worked for him was his lesson
to America and to the world: That mankind's best hope --
America's best hope -- was in education. Not just in the sense of
good schooling. But in its largest sense: that knowledge inspires
understanding and respect across every kind of divide imaginable.
of geography. of race. of religion. of ideology. He knew that we
will have -- we should have -- our differences. But he taught
that deep divisions were vastly less important than the common
bonds of humanity that can unite us if only we will take our
blinders off. In the end, democracy can only prevail if we have
the courage to seek out and face the truth -- together.
His generation had to put those lessons to the test in ways
that no Americans ever had before. They had saved the world for
freedom in World War II. But, afterwards, they were left to
defend their hard-won freedom against a very different kind of
enemy -- the tyranny of Communism. And they had to meet that test
under constraints the world had never seen, in the face of the
awesome power of the atom. As Senator Fulbright once wrote: "For
the first time in human history, a living generation has the
power of veto over the next."
More than any American of his generation, William Fulbright
gave America the strength and the vision to win the Cold War.
Some in his generation wanted to put the blinders back on,
whether that meant blind anger or blind retreat. He sought
another way. His teaching was simple yet powerful: Understanding
between all peoples is the best inoculation against war. For he
knew the lesson of Ecclesiastes: "Wisdom is better than weapons
of war. But one sinner destroys much good."
He wanted to bring the power of tolerance and understanding
to the lives of as many individuals as possible. Others gave in
to their fears and doubts about America's strength. But he never
lost his deep faith that democracy and freedom will triumph, not
just by the use of force, but by the force of example.
Time and again, for 32 years -- as a Congressman, a Senator
and the Chairman of the Senate Foreign Relations Committee -- he
backed up his belief with action: Leading the way to found the
United Nations. Taking a lonely stand against Joseph McCarthy.
Expanding the reach of our culture as the driving force behind
the Kennedy Center. And, of course, in a cold dawn only two weeks
after Hiroshima, calling for the creation of the international
exchange program that will live as his most profound legacy.
The Fulbright Scholars program is the perfect reflection of
his faith: Different kinds of people learning side by side,
building what he called: "a capacity for empathy, a distaste for
killing other men, and an inclination for peace. Next year, we
2
will celebrate the 50th anniversary of that program. Just think
about its impact: Its alumni include Nobel Prize winners, members
of Congress, leaders for peace and freedom the world over. And
many not-so-famous people who went home to live out the faith of
Senator Fulbright. More than 120,000 people from other countries
have come to the United States and more than 90,000 Americans
have gone overseas. No matter what their native tongue, all of
them are now known by the same name: Fulbrights.
He tried to teach the same lesson to his own nation, at a
time of deep division -- even if it was not always ready to
listen. The "Great Dissenter," as he was called, knew very well
that conflict is the catalyst of progress in a democracy. But the
lesson of his life was that tension must be tempered by civility
-- especially in a democracy. You should, as he did, fight hard
for what you believe in. You can, as he did, even challenge a
President if that is the course of your convictions. But you
must, as he did, do it with respect, without anger.
That is a good prescription for our times, when we see so
much anger and frustration all around. We must learn to lower not
our ideals, but our voices. To use our words not to tear down and
divide, but to build up and unify. We will disagree. Disagreement
is at the heart of democracy. But we must learn again to do it
without the bitterness that tears at the soul of democracy.
We see all around us reasons for hope. When, after hundreds
of years, the Catholics and Protestants in Northern Ireland
decide it may be time to stop the killing; when, after 27 years,
prisoner Nelson Mandela walks free and becomes President Nelson
Mandela; when we see the miracle of understanding take hold in
the Middle East. That is the power of our example. That is the
light William Fulbright sought to shine throughout the world.
And that is the great legacy of a great teacher. As Henry
Adams said, a teacher affects eternity. He never knows where his
influence stops. Senator Fulbright's powerful lesson is forever
captured on his statue in the Fayetteville town square: "In the
beauty of these gardens, we honor the beauty of his dream: peace
among nations, and free exchange of knowledge and ideas across
the earth."
Now it falls to our generation -- the inheritors of the
peace he helped to build -- to carry on his dream. Around the
world. And here, at home, in the country he so dearly loved.
And so, on behalf of a grateful nation and a world, both
stronger for his life, we bid farewell to James William
Fulbright.
3
file: Gays the meletary
VBR
THE WHITE HOUSE
WASHINGTON
November 17, 1993
MEMORANDUM FOR THE PRESIDENT
FROM:
CLIFFORD M. SLOAN
ASSOCIATE COUNSEL TO THE PRESIDENT
SUBJECT:
New gays-in-the-military decision
Overview
As you know, the U.S. Court of Appeals for the D.C. Circuit
yesterday issued a major gays-in-the-military decision. In a
decision by Chief Judge Mikva, the court held that adverse actions
taken against a standout midshipman, on the basis of his statements
of homosexuality, are unconstitutional.
The Steffan Decision
Joseph Steffan was an exceptional midshipman at the United
States Naval Academy -- a recipient of numerous honors, a Batallion
Commander (one of the Academy's ten highest ranking midshipmen),
and a soloist singing the National Anthem at the Army-Navy game in
his junior and senior years. In February 1987, during Steffan's
senior year, the Naval Intelligence Service (NIS) received a report
that Steffan had stated to another student that he was gay.
Steffan was subsequently asked if he was a homosexual and twice
answered, "Yes, sir." On the basis of these statements, academy
officials instituted discharge proceedings, changed Steffan's
ratings, and advised him to resign. Six weeks before his scheduled
graduation from the Academy, he resigned.
Steffan filed suit, claiming that his constitutional right to
equal protection had been violated. The D.C. Circuit agreed. It
found that the military regulations in effect at the time were
"n2ot rationally related to any legitimate goal" and rejected each
of the military's stated reasons for the former policy. The court
concluded:
(1) the military's former policy addresses status, not
conduct;
(2) it is unreasonable to use status as a basis for
predictions about conduct or a "propensity" to conduct;
(3) the perceived effect on morale, discipline, and
recruitment of heterosexuals cannot be accepted because "[t]he
Constitution does not allow Government to subordinate a class
of persons simply because others do not like them";
and
(4) the "privacy" concerns are invalid -- the concerns
represent either an untenable assumption that homosexuals will
"stare" or an impermissible deference to "the irrational fears
and stereotypes of third parties."
It should be noted that the court's panel in this case --
Mikva, Patricia Wald, and Harry Edwards -- is quite liberal and may
not reflect the views of the entire D.C. Circuit.
Effect of the Steffan decision on the new policy
The court's opinion explicitly states that the new policy is
"not at issue" in Steffan and that the decision applies only to the
old policy. The court's view of the impermissibility of using
statements of homosexuality as a ground for discharge under the old
policy, however, may well have implications for the new policy.
One difference, of course, is that the new policy contains the
explicit rebuttable presumption. (DOJ has argued that there was an
opportunity to rebut under the old policy). But it is far from
clear whether the rebuttable presumption would be sufficient to
overcome the decision and reasoning in Steffan.
Next steps
In consultation with DOD and DOJ, Bruce, George, and the
Counsel's office will be reviewing various options. Among the
possible choices are: (1) an appeal to the Supreme Court in the
Steffan case; (2) a request for en banc review by the entire D.C.
Circuit in the Steffan case; (3) an announcement that we will not
appeal the Steffan decision because we want to focus on the new
policy; and (4) possible actions to expedite judicial review of the
new policy (so that the issue can be put to rest).
Talking points
Comments on the Steffan decision should be as limited as
possible. It would be appropriate simply to say that we are
reviewing the Steffan decision and that we have no further comment
on it at this time. You may also wish to say that, in our system
of government, courts are always the ultimate judges of
constitutional challenges to government policies.
fils: Gaysin the Miletary 044492
Document No.
WHITE HOUSE STAFFING MEMORANDUM
DATE:
11/17/93
ACTION/CONCURRENCE/COMMENT DUE BY:
SUBJECT:
NEW GAYS-IN-THE-MILITARY DECISION
ACTION FYI
ACTION FYI
VICE PRESIDENT
PASTER
McLARTY
RASCO
NEEL
RUBIN
PANETTA
SEGAL
BAGGETT
SEIDMAN
EMANUEL
STEPHANOPOULOS
GEARAN
TYSON
GERGEN
VARNEY
GIBBONS
WATKINS
HALE
WILLIAMS
HERMAN
LAKE
LINDSEY
McGINTY
MYERS
>
NUSSBAUM
REMARKS:
The attached has been forwarded to the President.
RESPONSE:
JOHN D. PODESTA
Assistant to the President
and Staff Secretary
Ext. 2702
THE WHITE HOUSE
WASHINGTON
November 17, 1993
17
P6:
MEMORANDUM FOR THE PRESIDENT
FROM:
CLIFFORD M. SLOAN
as
ASSOCIATE COUNSEL TO THE PRESIDENT
SUBJECT:
New gays-in-the-military decision
Overview
As you know, the U.S. Court of Appeals for the D.C. Circuit
yesterday issued a major gays-in-the-military decision. In a
decision by Chief Judge Mikva, the court held that adverse actions
taken against a standout midshipman, on the basis of his statements
of homosexuality, are unconstitutional.
The Steffan Decision
Joseph Steffan was an exceptional midshipman at the United
States Naval Academy -- a recipient of numerous honors, a Batallion
Commander (one of the Academy's ten highest ranking midshipmen),
and a soloist singing the National Anthem at the Army-Navy game in
his junior and senior years. In February 1987, during Steffan's
senior year, the Naval Intelligence Service (NIS) received a report
that Steffan had stated to another student that he was gay.
Steffan was subsequently asked if he was a homosexual and twice
answered, "Yes, sir." On the basis of these statements, academy
officials instituted discharge proceedings, changed Steffan's
ratings, and advised him to resign. Six weeks before his scheduled
graduation from the Academy, he resigned.
Steffan filed suit, claiming that his constitutional right to
equal protection had been violated. The D.C. Circuit agreed. It
found that the military regulations in effect at the time were "not
rationally related to any legitimate goal" and rejected each of the
military's stated reasons for the former policy. The court
concluded:
(1) the military's former policy addresses status, not
conduct;
(2) it is unreasonable to use status as a basis for
predictions about conduct or a "propensity" to conduct;
(3) the perceived effect on morale, discipline, and
recruitment of heterosexuals cannot be accepted because "[t]he
Constitution does not allow Government to subordinate a class
of persons simply because others do not like them";
and
(4) the "privacy" concerns are invalid -- the concerns
represent either an untenable assumption that homosexuals will
"stare" or an impermissible deference to "the irrational fears
and stereotypes of third parties."
It should be noted that the court's panel in this case --
Mikva, Patricia Wald, and Harry Edwards -- is quite liberal and may
not reflect the views of the entire D.C. circuit.
Effect of the Steffan decision on the new policy
The court's opinion explicitly states that the new policy is
"not at issue" in Steffan and that the decision applies only to the
old policy. The court's view of the impermissibility of using
statements of homosexuality as a ground for discharge under the old
policy, however, may well have implications for the new policy.
One difference, of course, is that the new policy contains the
explicit rebuttable presumption. (DOJ has argued that there was an
opportunity to rebut under the old policy). But it is far from
clear whether the rebuttable presumption would be sufficient to
overcome the decision and reasoning in Steffan.
Next steps
In consultation with DOD and DOJ, Bruce, George, and the
Counsel's office will be reviewing various options. Among the
possible choices are: (1) an appeal to the Supreme Court in the
Steffan case; (2) a request for en banc review by the entire D.C.
Circuit in the Steffan case; (3) an announcement that we will not
appeal the Steffan decision because we want to focus on the new
policy; and (4) possible actions to expedite judicial review of the
new policy (so that the issue can be put to rest).
Talking points
Comments on the Steffan decision should be as limited as
possible. It would be appropriate simply to say that we are
reviewing the Steffan decision and that we have no further comment
on it at this time. You may also wish to say that, in our system
of government, courts are always the ultimate judges of
constitutional challenges to government policies.
001/010
10/25/93
13:52
25143643648
7:4. GAYS INTHE
U.S. Department of Justice
Military
Office of the Solicitor General
10th & Constitution Avenue, NW
Washington, DC 20530
FAX TRANSMISSION COVER PAGE
CONFIDENTIALITY NOTICE:
OFFICIAL GOVERNMENT BUSINESS
*
#
THIS COMMUNICATION IS INTENDED FOR THE SOLE USE OF THE
*
*
INDIVIDUAL OR ENTITY TO WHICH IT IS ADDRESSED AND MAY
*
*
CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL AND
*
EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAW. IF THE
*
READER OF THIS COMMUNICATION IS NOT THE INTENDED RECIPI-
*
ENT OR THE EMPLOYEE OR AGENT RESPONSIBLE FOR DELIVERING
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*
THE MESSAGE TO THE INTENDED RECIPIENT, YOU ARE HEREBY
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NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION, OR COPY-
ING OF THIS COMMUNICATION MAY BE STRICTLY PROHIBITED.
=
IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE
NOTIFY ME IMMEDIATELY BY TELEPHONE CALL, AND RETURN THE
COMMUNICATION TO ME AT THE ADDRESS ABOVE VIA UNITED
*
STATES POSTAL SERVICE. THANK YOU.
*
DATE:
10/25
TIME:
TO:
ciff Sloan
TELEPHONE:
456-7900
DESTINATION FAX NO.: FTS; 456-2146 or 456-1647
FROM:
Rich Searn
OFFICE OF THE SOLICITOR GENERAL
ROOM:
TELEPHONE: 514-3344
FAX:
307-4613 or FTS 8-367-4613
NUMBER OF PAGES: 20
(EXCLUDING COVER PAGE)
NOTE: IF YOU DO NOT RECEIVE THE TOTAL NUMBER
OF PAGES INDICATED, PLEASE CALL THE
SENDING INDIVIDUAL LISTED ABOVE ASAP.
10/25/93
13:53
2025143648
002/010
DECLARATION OF EDWIN DORN,
ASSISTANT SECRETARY OF DEFENSE FOR PERSONNEL AND READINESS
I, Edwin Dorn, declare and state as follows:
1. I am the Assistant Secretary of Defense for Personnel
and Readiness. In this capacity, I am responsible for personnel
and manpower policies of the Department of Defense. In
particular, I am responsible for those policies concerning
recruiting, retention, and separation of military personnel.
2. I appeared as the representative of the Secretary of
Defense and the Secretary of the Navy at a show-cause hearing
held on September 30, 1993 before Judge Terry H. Hatter of the
United States District Court for the Central District of
California in the case of Meinhold V. Department of Defense, CV
92-6044. The purpose of that hearing was to determine whether
the Secretary of Defense, the Secretary of the Navy, and the
Commanding Officer of the Naval Air Station at Moffet Field
should be held in contempt for allegedly violating the January
29, 1993 order issued by Judge Hatter in this case. Judge Hatter
did not hold any of those officials in contempt, but instead
amended the January 29 order.
3. I have examined the amended order and judgment issued
by Judge Hatter on September 30. Part of the order prohibits the
Department of Defense "and its agents, servants, employees and
those persons in active participation and concert with it * *
*
from creating or maintaining, or permitting any person or entity
to create or maintain, any record or file, including, but not
limited to, lists, evaluations, reports, classifications, and
designations, whether official or unofficial, at any level of
command, of any member of the armed forces of the United States,
which is based on sexual orientation in the absence of proven
sexual conduct -- if such conduct is proven to interfere with the
military mission of the armed forces of the United States."
4. This part of the order requires the Department of
Defense to review all of its own files, as well as the official
and unofficial files of its "agents, servants, employees, and
those persons in active participation and concert with it, " and
identify any records that are "based on sexual orientation." It
is impossible to overstate the magnitude of the task imposed by
this part of the order.
5. First, because the order encompasses all records
concerning "any member of the armed forces of the United States,"
it requires a review of the files and records on some 5,1 million
servicemembers (including 1.7 million active duty members, 1.8
million reserve members, and 1.6 million retired members).
5. Second, the records of the Department and the military
services are not located in one central location or contained in
10/25/93
13:53
2025143648
003/010
2
a comprehensive computer data-base. They are literally located
wherever the armed forces are located, from the Pentagon to the
smallest military outposts around the world. The types of
records that could possibly refer to sexual orientation include
not only personnel records (maintained at the unit, headquarters,
and service levels), but also medical, security, investigative,
training, education, counseling, pastoral, applicant, legal, and
judicial records. Indeed, because the order applies to both
"official" and "unofficial" records, it is difficult even to
identify all of the records that may be affected.
7. Third, because the order applies not only to the
Department and the services, but also to any of the Department's
"agents, servants, employees, and those persons in active
mkjut
participation and concert with it, it appears vt require the
be
rend
Department to review all of the files and records maintained by a
vast number of individuals and entities that work for or with the
Department -- such as defense contractors, teachers at schools
for military dependents, etc.
8. As a result of all of these factors, compliance with
the court's order requires the expenditure of an extraordinary
amount of time, manpower, and financial resources.
9. Because the order prohibits the Department and other
affected entities from "maintain[ing]" any records "based on
sexual orientation," literal compliance appears to require not
only the search for and identification of such records, but also
their destruction. Such records, however, are vital to the
proper management and deployment of military personnel. Their
destruction will therefore have an immediate detrimental effect
on the Armed Forces. Furthermore, once such documents are
destroyed, there would be no way to retrieve them if the district
court's order is reversed.
10. The district court's order also bars the Department and
other affected entities from "discharging, changing enlistment
status or denying enlistment" and "taking * * * or permitting *
*
* any action whatsoever, against gay or lesbian service members,
or prospective service members, that in any way affects, impedes,
interferes with, or influences their military status,
advancement, evaluation, duty assignment, duty location,
promotion, enlistment or reenlistment based upon their sexual
orientation in the absence of proven sexual conduct -- if such
conduct is proven to interfere with the military mission of the
armed forces of the United States."
11. This part of the order is already having an immediate
impact on the armed forces. Each year, a number of service
members are separated from the armed forces under the
Department's policy on homosexuality. Since 1989, over 3500
service members have been separated under that policy.
10/25/93
13:54
2025143648
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3
Currently, there are at least 115 such separation cases pending,
which have now been held in abeyance as a result of the district
court's injunction.
12. In addition, as a result of the district court's
injunction, the Department must now admit applicants for
enlistment who would otherwise be subject to discharge -- such as
persons who, by their own volunteered statements, demonstrate a
propensity or intent to engage in homosexual acts. If the
district court's injunction is reversed, such persons will be
subject to discharge. Yet, in the interim, the armed forces will
have expended resources on the accession and training of such
individuals, and the persons admitted pursuant will have
needed
disrupted their lives for the period in which the injunction
remains in place.
13. Finally, because the order prohibits the Department and
other affected entities from taking or permitting "any action
whatsoever" based on sexual orientation in the absence of proven
sexual conduct, literal compliance will tie the hands of
commanders in the field and prevent them from taking measures
that they feel are necessary to the effectiveness and readiness
of our armed forces. For example, the order appears to prohibit
the commander of a unit located in a zone of hostilities from
temporarily transferring to another unit a service member who, by
his statements, has demonstrated a propensity to engage in
homosexual acts and has thereby caused turmoil in the unit and
jecpardized its preparedness. Under the order, the commander
could not take protective measures unless he could prove that the
member engaged in specific disruptive sexual conduct. Literal
compliance therefore could pose an immediate threat to the safety
and readiness of our armed forces.
Pursuant to 28 U.S.C. sec. 1746, I declare that this
statement is true and correct to the best of my knowledge and
belief.
Executed on October 15, 1993, at Washington D.C.
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PAGE. 002
2
MENT or OFFICE
OFFICE OF THE SECRETARY OF DEFENSE
WASHINGTON. DC 20301-1000
X
MEMORANDUM FOR THE SECRETARY OF DEFENSE
SUBJECT: Recommended DoD Homosexual Policy
Reference: OSD Working Group memorandum, 8 June 1993. "Recommended DoD
Homosexual Policy Outline"
On 8 June, we forwarded a recommended policy outline (reference) describing, in our
judgement, the only option that complies with the President's direction to end discrimination
while maintaining high standards of combat effectiveness and unit cohesion. The attachment
provides a more in-depth explanation of the policy detailing the process and explaining the
findings and conclusions that led to our recommendation.
JOHN.P. OTJEN
JOHN SCOTT REDD
Major General, USA
Rear Admiral, USN
Member, OSD Working Group
Member, OSD Working Group
WILLIAM B. DAVITTE
JAMES M. LOY
Major General, USAF
Rear Admiral, USCG
Member, OSD Working Group
Member, OSD Working Group
fined 1. Mil
GERALD L. MILLER
Brigadier General, USMC
Member, OSD Working Group
Attachment
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PAGE 003
3
OFFICE OF THE SECRETARY OF
DEFENSE
SUMMARY REPORT
OF THE
MILITARY WORKING GROUP
OF OFFERE
THE STATES OF
1130 1 JULY 1993
OCT 13 '$3 15:32
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PAGE JEKI
4
CONTENTS
SECTION:
PAGE:
1. Background
1
II. Process
3
III. Findings
5
IV. Conclusions
12
V. The Recommended Policy
13
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5
1. BACKGROUND
A. Guidance
1. On 29 January 1993, the President directed the Secretary of Defense
to develop a policy "ending discrimination on the basis of sexual orientation
in determining who may serve in the Armed Forces of the United States."
The President further directed that the policy be implemented in a manner
that is "practical, realistic, and consistent with the high standards of combat
effectiveness and unit cohesion our Armed Forces must maintain."
2. On 5 April 1993, the Secretary of Defense directed that a Military
Working Group (MWG) be formed to develop and assess alternative policy
options to meet the President's requirements.
B. Perspective in formulating this policy. Although the all volunteer military
is drawn from civilian society, and generally reflects society's norms, the
military institution differs in several important ways. These differences were
an essential part of MWG's perspective in formulating this policy.
1. Military mission. Ultimately, the military's mission is to fight and win
the nation's wars.
a. The "terms of employment" for an individual servicemember
include the real possibility that he or she will be called upon to make the
ultimate sacrifice in service to our country. For military leaders, the moral
imperative is to accomplish the mission with the least loss of life possible.
Accordingly, any change to the military institution must be weighed in light
of this responsibility.
b. Similariy, there is no "right to serve" in the Armed Forces. Military
service is clearly a privilege afforded only to those who are qualified. There
are many features that are disqualifying, such as height, weight, prior
conduct record. membership in groups with certain objectives, or mental
category. These disqualifying factors are directly related to combat
effectiveness and apply whether the force is all-volunteer or conscript.
2. institutional values. Values are important to any institution, but they
1
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P.R.GE 006
6
are critical to the military of a democratic nation.
a. The nation calls upon its military to be prepared to kill and destroy
- acts which, in any other context, would be immoral. The shared moral
values of the institution - the collective sense of right and wrong - provide
the foundation which ensures that license will not be abused. This
foundation is the essential difference between a professional armed force
and a mercenary force. It also provides to individual servicemembers the
moral basis for personal service, commitment, and sacrifice in a profession
which is demanding in the extreme.
b. As citizen soldiers, military members bring their values with them
when they enter the Service. Whether based on moral, religious, cultural, or
ethical considerations, those values and beliefs are often strongly held and
not amenable to change. While we indoctrinate and train recruits, leadership
and discipline cannot - and generally should not - attempt to counter the
basic values which parents and society have taught. Indeed, efforts to do so
will likely prove counter-productive.
3. Military environment. Military operations are team operations - units
win wars, not individuals.
a. The rights and needs of the group are emphasized while individual
rights and needs are often set aside or sacrificed for military necessity. For
example, if military members aren't satisfied with the conditions of their
environment, they have no right to quit and, in fact, are subject to
prosecution if they do. Similarly, members of the military often are not able
to separate their private lives from their working environment. They may be
required to work, eat, recreate, sleep, and bathe in cramped spaces for
prolonged periods of time, sometimes in the most remote parts of the world.
Indeed, separation of the sexes is often the only concession to privacy.
b. In the short term, the military is facing a number of issues -
budget reductions, early retirements, reorganizations, health care worries,
base closures, reductions in force - that have had a severe negative impact
on morale. Any change in policy which would further exacerbate this
"misery squeeze" must be carefully weighed.
2
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7
II. PROCESS
A. Composition and organization. The MWG, composed of a general or flag
officer from each Service and a support staff of approximately 50 officers,
enlisted personnel, and civilian employees convened on 6 April 1993. To
facilitate examination of various options, the staff was organized into four
functional panels: military operations, service life, personnel policy, and
legal.
B. Policy boundaries. The MWG worked within specific limitations which
were confirmed with the Office of the Secretary of Defense. Returning to
the pre-29 January 1993 policy of "asking the question" was not an option;
nor was changing the Uniform Code of Military Justice. These limitations
defined the boundaries within which the MWG developed its recommended
options.
C. Deliberations. Fairness and objectivity were major aims of the MWG's
process. In pursuit of those aims, the MWG met with individuals and groups
holding a broad spectrum of views on the subject. This included meetings
with uniformed and civilian experts from inside and outside the Department
of Defense (DoD), including the soldiers, sailors, airmen, Marines, and Coast
Guardsmen who would be most affected by the policy. To broaden
understanding of the issue, the MWG also compared experiences of the
militaries of other countries, researched available literature, and performed
statistical analyses of military separation data obtained from the Services.
D. Results. Several policy options were developed and assessed. After
extensive review and consultation, the MWG ultimately focused on a single
policy recommendation and a plan to implement that policy. This policy,
discussed in detail below, meets the President's guidance, maintains combat
effectiveness, and is sustainable for the foreseeable future.
E. Definitions. The public debate over homosexuals in the military has often
been further confused by a lack of a common usage of terms. For clarity,
the MWG used the following definitions:
J. Bisexual. A person who engages in, desires to engage in, or intends
to engage in both homosexual and heterosexual acts. (DoDDir 1332.14 of
28 January 1982)
N
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of
2. Homosexual. A person, regardless of sex, who engages in, desires to
cagage
intends to engage in homosexual acts. (DoDDir 1332.14 of 28
January 1982)
3. Homosexual act. Bodily contact, actively undertaken or passively
permitted, between members of the same sex for the purpose of satisfying
sexual desires. (DoDDir 1332.14 of 28 January 1982) (This includes
sodomy and acts other than sodomy, such as kissing and dancing between
members of the same sex for the purpose of satisfying sexual desires.)
4. Homosexual conduct. Evidenced by homosexual acts and attempts or
solicitations to engage in such acts, statements by a member that he or she
is homosexual or bisexual, or homosexual marriage or attempted homosexual
marriage. (OSD MWG)
5. Homosexual marriage. When a member has married, or attempted to
marry, a person he or she knows to be of the same biological sex (as
evidenced by external anatomy). (OSD MWG)
6. Homosexual statement. The member has stated that he or she is
homosexual or bisexual. (DoDDir 1332.14 of 28 January 1982)
7. Homosexuality. The quality, condition, or fact of being a homosexual.
(OSD MWG)
8. Sexual orientation. A sexual attraction to individuals of a particular
gender. (OSD MWG)
OCT 13 '93 15:35
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9
III. FINDINGS
Following extensive review, the MWG made the following findings:
A. Combat effectiveness. The Armed Forces of the United States serve an
important role in our society by furthering our national interests abroad,
defending our borders, and protecting the American way of life. To
accomplish this unique mission, the military must be fully combat effective.
Combat effectiveness is the sine qua non of any armed force and any
prospective change must be assessed first and foremost in light of its effect
on the military's ability to fight. High combat effectiveness embodies a
synergistic mix that can be best expressed as the product of unit cohesion
and readiness.
1. Unit cohesion. Unit cohesion encompasses a number of factors
which, although often intangible, are fundamental to combat effectiveness.
These include:
8. Bonding. The essence of unit cohesion is the bonding between
members of a unit which holds them together, sustains their will to support
each other, and enables them to fight together under the stress and chaos of
war. The MWG found that the presence of open homosexuais in a unit
would, in general, polarize and fragment the unit and destroy the bonding
and singleness of purpose required for effective military operations. This
phenomenon occurs whether or not homosexual acts are involved. By
simply stating that he or she is a homosexual, the individual becomes
isolated from the group and combat effectiveness suffers.
b. Leadership. in addition to tactical and technical competency,
effective leadership depends on mutual respect, fairness, and concern for the
well-being of subordinates. If the values and lifestyle of a leader are
perceived as contrary to those of the unit, the leader will be, at best,
ineffective. That ineffectiveness would be further undermined by
perceptions of unfairness or fraternization. The MWG found it would be
extremely difficult for an open homosexual to exercise authority or serve
effectively as P leader in the Armed Forces of the United States.
C. Good order and discipline. Good order and discipline refers to
behavior based on respect for authority, other servicemembers, established
laws, and regulations and is critical for the effectiveness of leadership and
the ability of the unit to carry out its mission. Information presented to the
a
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/
MWG clearly indicated that the introduction of individuals identified as
homesexusic
into the military would severely undermine good order and
discipline. Moral and ethical beliefs of individuals would be brought into
open conflict. Leadership priorities would, of necessity, be reoriented from
training for combat to preventing internal discord. Additionally, the military
would be perceived as "turning a blind eye" to conduct proscribed by the
Uniform Code of Military Justice and regulations, thereby undermining the
very basis for good order and discipline.
d. Privacy. Sexual orientation alone is, and should remain, a personal
and private matter. However, once an individual's homosexual orientation
becomes known, privacy becomes a significant issue. Military members give
up many rights - including the right to free association - upon joining the
military. When deployed on ships or overseas, members often work, eat,
relax, bathe, and sleep together in close proximity 24 hours a day. Further,
the space individuals can call their own - their personal sanctuary - may be
only slightly larger than a coffin. For many members, the presence of openly
homosexual individuals in that environment constitutes a major and
unacceptable invasion of what little privacy remains.
e. Morale. Lifting the ban on homosexuais serving in the military
would be perceived by many servicemembers as the imposition of a political
agenda by a small group an agenda which is seen as having no military
necessity and as being, in fact, destructive to the finest fighting force in the
world. Morale would suffer accordingly.
f. Core values. The core values of the military profession would be
seen by many to have changed fundamentally if homosexusis were allowed
to serve. This would undermine institutional loyalty and the moral basis for
service, sacrifice, and commitment for those members.
2. Readiness. Readiness includes traditional hardware areas such as
technology, equipment, and spare parts as well as the training, education,
and fitness of quality personnel. The presence of homosexuals in the military
would impact readiness in several ways.
a. Medical. The readiness of the military to deploy and perform its
combat mission is directly linked to the medical well-being of the force. The
homosexual lifestyle has been clearly documented as being unhealthy. Due
to their sexual practices. active male homosexuals in the military could be
expected to bring an increased incidence of sexually transmitted diseases
and other diseases spread by close personal contact. Additionally, the
association of the homosexual lifestyle as a high risk behavior in contracting
OCT-13 93
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AIDS could create the perception of an "enemy within" which has the
potential
not only other servicemembers, but family members as
well.
b. Recruiting. Open homosexuality in the military would likely reduce
the propensity of many young men and women to enlist due to parental
concerns, peer pressure, and a military image that would be tarnished in the
eyes of much of the population from which we recruit.
C. Retention. Discharges for homosexual conduct account for only
about one-third of one percent of all United States military discharges.
Conversely, recent surveys indicate a significant number of servicemembers
say they would not reenlist if open homosexuais were allowed to serve.
These views were supported by military personnel who appeared before the
MWG. Of note, the members most likely to leave the service would be those
with the best options for employment eisewhere -- i.e., the most skilled --
and those with strong moral beliefs.
3. All homosexuality is incompatible with military service. The effect on
combat effectiveness is not limited to known homosexuals.
a. Even if officially unknown, individuals who engage in homosexual
conduct can undermine combat effectiveness through, for example, high risk
behavior and the formation of "sub-cultures" outside the chain of command.
Further, they may not remain unknown over the course of several years of
an enlistment or for a full military career. For example, an "unknown"
homosexual can become "known" overnight as a result of a police blotter
entry or any other incident by which his or her homosexuality becomes
officially known. The resultant effect on readiness can thus manifest itself
quickly and without warning.
b. Currently unknown and non-practicing homesexuals are also cause
for concern. Homosexual activist groups argue that the productivity of
individual homosexuals is reduced by virtue of having to hide their true
orientation. While the immediate impact on combat effectiveness for those
individuals is limited, it nonetheless exists. Further, by definition, even non-
practicing homosexuais either intend to engage in homosexual acts or desire
to engage in homosexual acts. Some may remain celibate for a time, but it
is reasonable to presume that, over a period of years. many will engage in
homosexual conduct.
c. The salient point is that what the military doesn't know can - and
over time will - negatively impact combat effectiveness. While the
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immediate effect on combat readiness varies depending on whether a
nomesexual is known or unknown, and whether or not the servicemember
engages in homosexual conduct, it is nonetheless true that all homosexuality
is incompatible with military service and has some measure of negative
impact.
B. Practical considerations. In addition to the direct effects on combat
effectiveness described above, a number of practical considerations were
examined in assessing policy options.
1. Longevity of the policy. One of the tests for an effective policy is
that it withstand the test of time.
a. A key element is the likelihood of surviving challenge in the courts.
A central finding of the MWG is that statements that one is 8 homosexual
are inextricably linked to homosexual acts. To suggest otherwise is contrary
to logic, MWG research, and the publicly expressed view of homosexual
advocates. Authorities on military law expressed concern that drawing an
artificial distinction between homosexual statements and homosexual acts
would undercut the legal precedent upholding the military's homosexual
policy. Conversely, a policy which correctly includes as its underlying
premise the linkage between homosexual statements and homosexual acts
can draw from established precedent and is therefore likely to endure.
b. Any policy that condones homosexual conduct would require
congressional action to change the Uniform Code of Military Justice. Failure
to do so would establish an untenable situation, creating a perceived conflict
between stated policy and military law. This would, in turn, create
leadership and legal problems and ultimately would have to be resolved.
2. Personnel policies. Military personnel policies are designed by
necessity to manage large groups or categories of people, as opposed to
individuals, for the purpose of achieving maximum combat effectiveness.
During its deliberations, the MWG found that current DoD policy, directives,
and regulations regarding homosexuality generally are not well understood.
a. Accessions. The questions formerly asked during the accession
process regarding an applicant's sexual orientation appear to have been
ineffective either in deterring homosexuais from entering the military or in
articulating DoD policy on homosexuality.
b. Assignments. The issue of assignment restrictions poses a
particular dilemma. On the one hand, there are significant problems with
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overall combat effectiveness associated with assigning open homosexuals to
require
higher degrees of cohesion (e.g., combat units, special
forces) or close quarters berthing. On the other hand, restricting their
assignments would cause resentment among those who must serve in their
place while tending to concentrate open homosexuals into a narrow selection
of skill fields. Since assignment to combat skills and combatant vessels is
career enhancing, excluding homosexuals from these duties would inhibit
their promotion and advancement opportunities and bring a new set of
problems.
C. Berthing/bileting. The presence of known homosexuals in a unit
will create tension which may require them to be berthed/billeted and
segregated from the remainder of the unit in order to maintain good order
and discipline. This would entail additional and unbudgeted costs. On the
other hand, segregating certain members of the group will isolate those
individuals, possibly highlighting them as a special class, and further degrade
unit cohesion. Additionally, there are situations where separate
berthing/billeting - such as aboard ships -- is not practical at any cost.
3. Investigations
a. DoD has no written, uniform policy guidelines for investigating
cases involving allegations of homosexuality. This lack of policy may have
contributed to a misperception that the military's investigative agencies
conduct "witch hunts" to weed out suspected homosexuals.
b. Commanders must have the discretion to inquire and investigate
when there is credible information of misconduct or basis for discharge.
However, a balance must be struck. While servicemembers set aside certain
individual rights while they serve, they still retain freedom from unwarranted
intrusion into their private lives.
4. Military family issues. Service life is all encompassing. While
spouses and children obviously do not serve in the Armed Forces, military
policies and personnel touch every aspect of family life. Servicemembers,
both single and married, are often involved as leaders in military youth
activities - for example, scouting, little league, church youth groups, and
social clubs. Indeed, most Morale, Welfare, and Recreation programs rely
almost exclusively on these volunteers. Many military families would object
to the participation of open homosexuals in these programs - programs to
which they entrust their children. Additionally, family members are worried
about the same issues that concern their military sponsors - such as,
encumbered privacy during deployments, medical risks, and the breakdown
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14
of the unit - because they are perceived as a threat to their loved ones.
5. Common misperceptions concerning homosexuais and the military
a. Foreign militaries
(1) The policy and practice of foreign militaries regarding
homosexuals actively serving do not always match. In countries where
policies are "accepting," practice typically involves exclusion of homosexuals
for medical/psycholegical reasons. Even where policy and law allow
homosexuals to serve, few servicemembers openly declare their
homosexuality due to fears of baiting, bashing, and negative effects to their
careers.
(2) Extended deployments and berthing/billeting privacy are not
significant issues for most foreign militaries. Additionally, no country has as
high a proportion of its servicemembers billeted/berthed together on military
installations and deployed aboard ships or overseas at any given time as
does the United States. Most importantly, no other country has the global
responsibilities, operational tempo, or worldwide deployment commitments
of the Armed Forces of the United States.
b. Police/Fire departments. Parallels cannot be accurately drawn
between the experiences of police and fire departments and the Armed
Forces. While there are some organizational similarities, there are also some
very fundamental differences in the areas of mission and related training,
deployments, work environment, authority of the commander over
subordinates, living conditions, and personal privacy.
C. Discharge and discipline of homosexuals in the Armed Forces.
Incorrect perceptions exist that the military discharges large numbers of
personnel for homosexuality and that most of those discharges are for
reasons of homosexual "status" only i.e., statements alone that one is a
homosexual, with no homosexual acts involved. Additionally, some believe
the military prosecutes homosexuai sodomy cases but does not prosecute
heterosexual sodomy cases.
(1), Analysis of Armed Forces separations over the four-year
period of fiscal years 1989 through 1992 reveals:
(a) Only one-third of one percent (0.3 percent) of all
separations were for homosexuality.
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PAGE 015
(b) Of those discharged for administrative or punitive reasons,
only 1 5 percent were for homosexuality.
(c) Drug and aicohol abuse discharges were nine times greater
than those for homosexuality. Overweight discharges were five times
greater.
(d) Of all discharges for homosexuality, at least 79 percent
clearly involved homosexual conduct. There was insufficient documentation
to determine whether conduct was involved in the remaining 21 percent.
(2) Similarly, a review of 1,141 military courts-martial involving
Article 125 (sodomy) indicated that heterosexual sodomy cases outnumbered
homosexual sodomy cases by a 4 to 1 ratio.
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PAGE
14
V. THE RECOMMENDED POLICY
A. Overview. After extensive research and assessment of several options,
the MWG submitted the following policy for consideration by the Secretary
of Defense on 8 June 1993. In the judgement of the MWG, the policy
represented the only option which complied with the President's guidance to
end discrimination while maintaining high standards of combat effectiveness
and unit cohesion.
B. Key policy features
1. Sexual orientation will be considered a personal and private matter.
The Armed Forces won't ask and servicemembers will not be required to
reveal their sexual orientation.
2. The presence in the Armed Forces of persons who engage in
homosexual acts, who state they are homosexual or bisexual, or marry or
who attempt to marry persons of the same gender remains inconsistent with
the requirement to maintain high standards of combat effectiveness and unit
cohesion.
3. Sexual orientation alone is not a bar to service entry or continued
service unless manifested by homosexual acts, statements, or marriages.
4. Neither commander's inquiries (normally for minor offenses) nor
military criminal law enforcement investigations (normally for criminal
violations) will be conducted absent credible information. Commanders will
continue to initiate inquiries or investigations, as deemed necessary, when
credible information that a basis for discharge or disciplinary action exists.
5. Servicemembers will be discharged if they are found to have engaged
in homosexual conduct.
6. An education plan will be developed to inform servicemembers,
commanders, and military investigators about this policy so as to reinforce
the principle that all service-members can serve without fear of unwarranted
intrusion into their personal lives.
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C. Discussion of the policy
1. Military personnel policies are designed by necessity to manage large
groups or categories of people for the purpose of achieving maximum
combat effectiveness. The basis for our personnel policy regarding
homosexuals has been and remains that homosexuality is incompatible with
service in the Armed Forces.
2. For practical reasons, we implement that policy by discharging
servicemembers only when their homosexuality is manifested by objective
criteria - homosexual acts, statements, or marriage. As a practical result of
the implementation of this policy, homosexuals who keep their sexual
orientation private have served and will continue to serve.
3. While maintaining the de jure basis of the previous policy, this policy
acknowledges the de facto situation that some homosexuais have served,
and presumably will continue to serve, in the Armed Forces under the unique
constraints of military life. These constraints require members of the Armed
Forces to keep certain aspects of their personal life private for the benefit of
the group.
D. Implementation
1. Accessions policy. Applicants for service in the Armed Forces will
not be required to declare their sexual orientation or answer questions about
their orientation. They will be briefed on departmental policies governing
conduct proscribed for members of the Armed Forces. All applicants will
sign a statement acknowiedging they understand these policies.
Additionally, homosexual behavior will no longer be listed as a mental
disorder in the DoD Physical Standards directive.
2 Investigative policy. Commanders may initiate investigations or
inquiries into homosexual conduct as defined by DoD policy. However, no
investigations or inquiries will be conducted solely to establish an individual's
sexual orientation, nor will servicemembers be required to answer questions
concerning their sexual orientation. This provision does not create a
protected class. Acknowledgement by a member that he or she is a
homosexual -- even in reply to a question asked in error - continues to be a
basis for separation. No investigations or inquiries will be conducted absent
credible information of the commission of a crime or basis for discharge or
disciplinary action. Military investigative agencies, at the direction of a
commander, may investigate misconduct and violations of the Uniform Code
of Military Justice. Investigations will not go beyond establishing the
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OCT 13 'S3 15:41
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elements of the offense or basis for discharge. There will be no stake-outs,
sting operations, or round-ups absent specific allegations of proscribed
conduct.
3. Discharge policy. Homosexual conduct is inconsistent with the high
standards of combat effectiveness and unit cohesion our Armed Forces must
maintain. Servicemembers will be discharged if they engage in homosexual
conduct. Homosexus! conduct is evidenced by any act involving bodily
contact. actively undertaken or passively permitted, between members of the
same sex for the purpose of sexual gratification, and attempts or solicitations
to engage in such acts; a statement by the member that he or she is a
homosexual or bisexual; or homosexual marriage or attempted homosexual
marriage. Normally, administrative separations involving homosexual
conduct will be under honorable conditions, unless there are aggravating
circumstances - such as acts with a minor.
4. Education policy. Each Service will provide training to their personnel,
at every level, to explain the new policy regarding homosexuals. The DoD
will provide an education plan for the Services to use as a guideline in their
separate training programs. The education package will focus on the
changes to the DoD policy and will not be an attempt to change any deeply
held religious and ethical beliefs; that is, sensitivity training.
15
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nos
Revised verson MILITARY
Fil: Gays IN THE
U.S. Department of Justice
Office of the Solicitor General
10th & Constitution Avenue, NW
10/25/93
Washington, DC 20530
FAX TRANSMISSION COVER PAGE
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DATE:
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TIME:
TO: Ciff Sloan
Cliff We'll need
any convents by i:30 area
tomorrow, so we in
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draft 1 :- 10/25/93
No. A-
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1993
UNITED STATES DEPARTMENT OF DEFENSE, ET AL., APPLICANTS
V.
VOLKER KEITH MEINHOLD
EMERGENCY APPLICATION FOR A STAY PENDING APPEAL
TC THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Pursuant to Rule 23 of the Rules of this Court and the All
Writs Act, 28 U.S.C. 1651, the Solicitor General, on behalf of
the Department of Defense and the Secretary of Defense, respect-
fully applies for a partial stay of the orders entered by the
United States District Court for the Central District of Califor-
nia on January 29 and September 30, 1993, pending appeal of those
orders to the United States Court of Appeals for the Ninth
Circuit.
This action was brought by a single individual, respondent
Meinhold, to challenge his discharge from the United States Navy
under the military policy regarding homosexuals then in effect.
The district court declared that the policy violated equal
protection, and it ordered Meinhold's discharge rescinded. In
addition, however, the court granted a nationwide injunction that
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2
bars any officer of the Defense Department from discharging,
denying enlistment, or taking "any action whatsoever" regarding
military status or duties against any person in any of the
military services "based on sexual orientation," except in cases
involving "proven sexual conduct" -- and, even then, only "if
such conduct is proven to interfere with the military mission of
the armed forces of the United States." App. H, infra, 2. The
injunction also prohibits the Department from "creating or
maintaining" any record based on sexual orientation, with the
same narrow exception. Ibid. By this application, the govern-
ment seeks a stay of this broad injunction to the extent that it
grants relief to persons other than Meinhold.
The court clearly erred with respect to issues of great
importance. The entry of a nationwide injunction in this non-
class action conflicts with decisions of this Court and numerous
courts of appeals holding that an injunction may not be broader
than necessary to provide relief to the party before the court.
The district court's injunction broadly intrudes the court into
the day-to-day management and discipline of military personnel --
a responsibility which, as this Court repeatedly has recognized,
is confided by the Constitution to the political Branches, and in
which courts have little competence. Moreover, the district
court's ruling on the merits conflicts with numerous decisions
rejecting equal protection challenges in this setting.
The district court's injunction will cause irreparable harm
unless stayed pending appeal. First, it prevents the implementa-
3
tion of the new Policy on Homosexual Conduct in the Armed Forces,
which was announced by the President on July 19, 1993, and which
is ready for effectuation in regulations to be issued by the
Secretary of Defense. That policy directive by the Commander-in-
Chief has, moreover, been approved in bills passed by both Houses
of Congress. Those identical bills are now before a conference
committee and are expected to be enacted into law as part of the
Defense Authorization Act of 1994 within the next few weeks. Yet
the validity of the President's new policy and the military
judgments supporting it were never at issue in this case.
Second, the injunction interferes with the administration of
the military services and creates grave uncertainty for military
commanders at the present time: It prohibits them from taking
measures in response to homosexual conduct that is prohibited not
only under the President's new policy, but also under the interim
policy that the President announced on January 29 and that
remains in place pending implementation of the new policy. By
prescribing a stringent yet vague standard prohibiting "any
action whatscever * * * based on sexual orientation" and permit-
ting such actions only for what the district court would regard
as "sexual conduct * * * proven to interfere with the military
mission of the armed forces," App. E, infra, 2, the injunction
makes a wide range of military decisions a possible basis for
contempt proceedings. The uncertainty also adversely affects
members of the military, who may be encouraged by the district
court's injunction to make statements or take other actions that
4
they believe are permitted under the injunction, but that may be
the basis for discipline or discharge under the President's new
policy and the pending legislation if the injunction is set aside
upon further review.
Finally, the injunction appears to require the Department of
Defense to search records regarding some 5.1 million present and
retired servicemembers, and to identify all records "based on
sexual orientation" that do not relate to "proven sexual con-
duct. It Moreover, because the injunction prohibits the Department
from "maintain[ing]" such documents, it could be read to require
the destruction of records pertaining to sexual orientation.
Injunctions that have such adverse consequences -- and that are
wholly beyond the power of a court to issue should not remain
in effect.
Appended to this application are the First Amended
Verified Complaint for Equitable Relief and Injunction (App. A,
infra) ; the January 29, 1993, Order and Judgment of the district
court granting summary judgment and a permanent injunction in
favor of Meinhold (App. B, infra) ; the January 29, 1993, Amended
Opinion of the district court ruling on cross-motions for summary
judgment (App. C, infra) ; the February 19, 1993, Order of the
district court denying the government's motion for clarification
or, in the alternative, for stay pending appeal (App. D, infra) ;
the March 12, 1993, Order of the court of appeals denying the
government's emergency motion for a stay pending appeal (App. E,
infra) ; the September 22, 1993, Order of the district court
ordering the Secretary of Defense and others to appear to show
cause why they should not be held in contempt (App. F, infra) ;
the September 22, 1993, Order of the court of appeals denying the
government's emergency motion for summary reversal and, in the
alternative, for a stay of the district court's injunction (App.
G, infra) ; the September 30, 1993, Amended Order and Judgment of
the district court (App. H, infra) ; Tr. of September 30, 1993,
hearing before the district court on the show cause order (App.
I, infra) ; the October 8, 1993, Order of the court of appeals
denying the government's outstanding motions (App. J, infra) ;
Memorandum from the Secretary of Defense regarding "Policy on
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006/045
5
STATEMENT
1. In May 1992, the respondent, Volker Keith Meinhold,
announced on a television broadcast that he is a homosexual.
App. C, infra, 1-2. At that time, Meinhold was a Petty Officer
or active duty in the United States Navy. App. A, infra, 8.
Military regulations then in effect barred service by "persons
who engage in homosexual conduct or who, by their statements,
demonstrate a propensity to engage in homosexual conduct." App.
L, infra, 1. The Navy convened an administrative discharge board
to assess Meinhold's continued suitability for service. The
board concluded, based on Meinhold's televised statement, that
his discharge was required under the regulations. On August 12,
1992, Meinhold received an honorable discharge. App. A, infra,
11-12; App. C, infra, 1-2.
Homosexual Conduct in the Armed Forces" (July 19, 1993) (App. K,
infra) ; Department of Defense (DOD) Directive 1332.14 (App. L,
infra) ; Naval Military Personnel Manual 3630400 (App. M, infra) ;
Memorandum from Edwin Dorn, Assistant Secretary of Defense, re
Policy on Homosexual Conduct in the Armed Forces (Sept. 30, 1993)
(App. N, infra) ; Memorandum from Edwin Dorn, Assistant Secretary
of Defense, re Policy on Homosexual Conduct in the Armed Forces
(Oct. 1, 1993) (App. O, infra) i S. 1298, 103d Cong., 1st Sess.
§ 546 (1993) (App. P, infra) ; H.R. 2401, 103d Cong., 1st Sess.
§ 575 (1993) (App. Q, infra) ; S. Rep. No. 112, 103d Cong., 1st
Sess. 263-301 (1993) (App. R, infra) ; H.R. Rep. No. 200, 103d
Cong., 1st Sess. 286-290 (1993) (App. S, infra) ; Office of the
Secretary of Defense, Summary Report of the Military Working
Group (July 1, 1993) (App- T, infra) ; Selland V. Aspin, Civ. No.
93-1924-LFO (D.D.C. Sept. 28, 1993) (App. U, infra) ; Tr. of July
20, 1993, Hearing Before the Sen. Comm. on Armed Services to
Receive Testimony on Dep't of Defense Policy on the Service of
Gay Men and Lesbians in the Armed Forces 12-28 (App. V, infra) ;
Declaration of Edwin Dorn, Assistant Secretary of Defense for
Personnel and Readiness (App. W, infra) ; Air Force Regulation
110-19 (Supp. July 20, 1992) (App. X, infra) ; Army Regulation 27-
10, Ch. 20 (App. Y, infra) i U.S. Navy Regulations, Ch. III (App.
Z, infra).
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6
Meinhold then filed this action, alleging that his discharge
violated the equal protection guarantees of the Fifth Amendment.
App. A, infra, 16. The suit was not brought as a class ac-
tion, and Meinhold did not seek injunctive relief on behalf of
anyone other than himself. More specifically, Meinhold sought a
declaration that the regulations under which he was discharged
are unconstitutional and an injunction requiring his reinstate-
ment. Id. at 17.
On January 29, 1993, the district court granted summary
judgment in favor of Meinhold. App. B, infra. Without first
addressing either of Meinhold's non-constitutional arguments, the
court held that the policy under which Meinhold was discharged
violated the equal protection component of the Due Process
Clause. App. C, infra, 2-6. The court understood that policy to
permit discharges "based merely on [homosexual] status, and not
conduct." Id. at 2. The court determined that the government
bore the burden of proving, "through a factual record" in court,
that the policy was rationally related to permissible goals; it
declined to defer to "military judgment" on that matter. Id. at
2-3. The court concluded that the government had failed to carry
its evidentiary burden. Id. at 3-6.3/
2/ The complaint also alleged violations of the Administra-
tive Procedure Act, 5 U.S.C. 551 et seq., "traditional principles
of equitable estoppel," and the Bill of Attainder Clause, Art. I,
§ 9. App. A, infra, 12-16.
3/ The court nonetheless acknowledged the Navy's submission
that the policy under which Meinhold was discharged "is rational-
ly related to its goals of maintaining discipline, good order and
morale; fostering mutual trust and confidence among service-
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-1
As relief, the court issued an order "rescind[ing]" Mein-
hold's discharge, as Meinhold had requested. But the order also
went much further. It permanently enjoined the Department of
Defense "from discharging or denying enlistment to any person
based on sexual orientation in the absence of sexual conduct
which interferes with the military mission of the armed forces of
the United States." App. B, infra, 2. Nothing in the court's
opinion offered a justification for the nationwide scope of the
injunction. See App. C, infra, 1-6.
2. That same day, January 29, 1993, the President directed
the Secretary of Defense to undertake a comprehensive review of
the military's policy regarding homosexuals. At the same
time, the President directed that an interim policy be put in
effect pending completion of the review and implementation of any
new policy
The interim policy modified then-existing policy
in two ways. First, it provided that new recruits are not to be
questioned about homosexuality during the enlistment process.
Second, the interim policy authorized the Attorney General to
members; the need to recruit and retain servicemembers; and
maintaining public acceptability of the Navy." Id. at 3 (citing
Navy Military Personnel Manual 3630400 (1) (App. M, infra)).
4/ The President's directive was not related to the order
in this case.
5/ The interim policy remains in effect (to the extent it
is not enjoined) until the new policy is implemented. Memorandum
from Edwin Dorn, Assistant Secretary of Defense, re Policy on
Homosexual Conduct in the Armed Forces (Sept. 30, 1993) (App. N,
infra); see also Memorandum from Edwin Dorn, Assistant Secretary
of Defense, re Policy on Homosexuality in the Armed Forces (Oct.
1, 1993) (App. o, infra).
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8
suspend the discharge Of, and to transfer to standby reserve
status pending implementation of a new policy, any servicemember
who is subject to separation based solely on his or her acknowl-
edgement of homosexuality (without specific proof of hcmosexual
acts). S. Rep. No. 112, 103d Cong., 1st Sess. 268 (1993).
The government filed a motion in the district court pursuant
to Fed. R. Civ. P. 59 (e), asking the court to clarify its January
29 order to specify that the Department could implement the
President's interim policy. In the alternative, the government
asked the court to stay its order pending appeal to the extent it
grants relief to persons other than Meinhold. The court, without
explanation, denied the motion on February 17, 1993. App. D,
infra.
3. On March 3, 1993, the government filed a motion asking
the Ninth Circuit to stay the district court's order to the
extent it confers relief on persons other than Meinhold. On
March 12, 1993, the Ninth Circuit denied the motion. App. E,
infra. It recognized that "there is a legitimate dispute as to
whether the permanent injunction entered by the district court
should extend beyond Meinhold." Ibid. It nonetheless denied
relief because it discerned no conflict between the injunction
and the President's interim policy. The court reasoned that
because the injunction bars "discharg [es], the Department of
Defense could transfer to standby reserve status servicemembers
who had acknowledged being homosexual, since "transfer to the
standby reserve is not a discharge from military service." Ibid.
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9
In light of the court of appeals' interpretation of the
district court's January 29 order, the government did not seek a
stay in this Court. The government's appeal of that order then
proceeded to briefing in the ordinary course.
4. On July 19, 1993, the President and the Secretary of
Defense announced a new policy, to be instituted by October 1,
1993, regarding homosexual conduct by members of the Armed
Forces. App. K, infra. The policy is the result of an exhaus-
tive six-month review of existing policy by the Secretary of
Defense, in consultation with the Joint Chiefs of Staff, the
acting Secretary of each military department, a working group of
senior officers in the Defense Department, outside experts, and
the Department of Justice. 7/20/93 Tr. of Hearing Before the
Senate Comm. on Armed Services 15-17 (testimony of Secretary of
Defense Les Aspin) (App. V, infra); see also id. at 22-24 (testi-
mony of General Colin Powell) (App. V, infra) ; Office of the
?
Secretary of Defense, Summary Report of the Military Working
Group (July 1, 1993) (App. T, infra).
In his formal memorandum setting forth the basic principles
of the new policy, the Secretary of Defense explained that "[t]he
Department of Defense has long held that, as a general rule,
homosexuality is incompatible with military service because it
interferes with the factors critical to combat effectiveness,
including unit morale, unit cohesion and individual privacy."
App. K, infra, 1. "Nevertheless, he continued, "the Department
of Defense also recognizes that individuals with a homosexual
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10
orientation have served with distinction in the armed services of
the United States." Ibid. The Secretary then stated (id. at 1-
2) :
Therefore, it is the policy of the Department of De-
fense to judge the suitability of persons to serve in
the armed forces on the basis of their conduct. Homo-
sexual conduct will be grounds for separation from the
military services. Sexual orientation is considered a
personal and private matter, and homosexual orientation
is not a bar to service entry or continued service
unless manifested by homosexual conduct.
*
*
*
*
*
The constraints of military service require service-
members to keep certain aspects of their personal lives
private for the benefit of the group.
The new policy addresses three areas: accession, discharge,
and investigations. With regard to accession, it provides that
applicants for military service will not be asked if they are
homosexual, but they will be told that homosexual conduct by
servicemembers is prohibited. App. K, infra, 4. The policy
further provides that " [t]he military will discharge members who
engage in homosexual conduct, which is defined as a homosexual
act, [6/] a statement that the member is homosexual or bisexual,
or a marriage or attempted marriage to someone of the same
gender. Ibid. The policy elaborates (id. at 2) :
A statement by a servicemember that he or she is
homosexual or bisexual creates a rebuttable presumption
that the servicemember is engaging in homosexual acts
6/ The term "homosexual act" is defined to include "any
bodily contact, actively undertaken or passively permitted,
between members of the same sex for the purpose of satisfying
sexual desires or any bodily contact which a reasonable person
would understand to demonstrate a propensity or intent to engage
in homosexual acts." App. K, infra, 2.
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or has a propensity or intent to do SO. The service-
member has the opportunity to present evidence that he
does not engage in homosexual acts and does not have a
propensity or intent to do SO. The evidence will be
assessed by the relevant separation authority.
With regard to investigations, the policy provides that no
investigations or inquiries will be conducted solely to determine
a servicemember's sexual orientation. Commanders will initiate
an investigation or inquiry only when there is credible informa-
tion that a basis for discharge or disciplinary action exists,
and an allegation or statement by another person that a service-
member is a homosexual, alone, is not grounds for either a
criminal investigation or a commander's inquiry.
App. K, infra,
2.
The Secretary's memorandum announcing the policy stated that
the Secretaries of the Military Departments were to implement the
policy by October 1, 1993. Id. at 3.
5. On September 7, 1993, the government filed a motion in
the Ninth Circuit seeking partial summary reversal, or, in the
alternative, a stay pending appeal of the district court's
January 29 injunction to the extent that it confers relief on
persons other than Meinhold. In support of the motion, the
government explained that the injunction would bar implementation
of the President's new policy on October 1. The government
pointed out that the new policy includes in its definition of
prohibited sexual conduct statements that demonstrate an intent
or propensity to engage in homosexual acts, whereas the injune-
tion prohibits discharges in the absence of proof of what the
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12
district court would regard as specific sexual conduct proven to
interfere with the military mission. On September 22, 1993, the
Ninth Circuit denied the government's motion without explanation
and directed that the appeal be scheduled for oral argument in
December 1993. App. G, infra. On September 30, 1993, the
government filed a motion for reconsideration by the Ninth
Circuit, with a suggestion for reconsideration en banc.
6. In the meantime, the district court had entered an order
on September 22, 1993, directing the Secretary of Defense and the
Secretary of the Navy (or their representatives) to appear and
show cause why they should not be held in contempt for violating
the January 29 injunction. App. F, infra. The district court
held a hearing on the show-cause order on September 30, 1993.
At the hearing, Meinhold argued that the government had violated
the injunction by, inter alia, implementing the President's
interim policy insofar as members (other than Meinhold) who made
statements acknowledging their homosexuality were placed on
standby reserve. App. I, infra, 8-12.8/ The court indicated its
7/
In accordance with the court's order that defendants
appear "personally, or through an agent, other than counsel"
(App- F, infra), the hearing was attended by the Assistant
Secretary of Defense for Personnel and Readiness, the Lieutenant
Commander for Meinhold's command, and officials from the Judge
Advocate General's Office of the Department of Navy, the Office
of the General Counsel of the Department of Defense, and the
Office of the Secretary of Defense. App. I, infra, 4.
8/ Meinhold cited (App. I, infra, 8-11) Selland V. Aspin,
Civ. No. 93-1924-LFO (D.D.C. Sept. 28, 1993) (App. U, infra), a
case that involved a servicemember who was scheduled to be
transferred to standby reserve on September 30, 1993. On Septem-
ber 29, 1993, Judge Oberdorfer issued a preliminary injunction
barring Selland's transfer to standby reserve. In issuing the
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13
willingness to entertain claims by non-party servicemembers that
the Secretary was violating its injunction. Id. at 31. It
declined, however, to make a finding of contempt. Id. at 37.
Instead, the district court issued an amended order broaden-
ing the January 29 injunction. App. H, infra. The amended order
purports to grant injunctive relief to some 5.1 million present
and retired servicemembers worldwide and to all persons seeking
to become servicemembers. It enjoins the Department and any of
its officers and employees from taking any of the following
actions "based on sexual orientation in the absence of proven
sexual conduct -- if such conduct is proven to interfere with the
military mission of the armed forces of the United States":
(1) "discharging, changing enlistment status or denying
enlistment to any person";
(2) "creating or maintaining * * * any record or file,
including, but not limited to, lists, evaluations,
reports, classifications, and designations, whether
official or unofficial, at any level of command, of any
member of the armed forces of the United States"; and
(3) "any actions whatsoever, * * * against gay or
lesbian service members, or prospective service mem-
bers, that in any way affects, impedes, interferes
with, or influences their military status, advancement,
injunction, Judge Oberdorfer characterized the January 29 injunc-
tion in Meinhold as the "law of the land," even "if only tempo-
rarily." App. U, infra, 7. The preliminary injunction in
Selland had not been issued, however, when Meinhold filed the
motion seeking to hold the defendants in contempt of the injunc-
tion entered in this case. Meinhold also relied on Elzie V.
Aspin, Civil No. 93-1853 (D.D.C. Compl. filed Sept. 7, 1993), an
action brought by a servicemember who was transferred to standby
reserve on September 1, 1993, based on an admission of homosexu-
ality. On October 14, 1993, Elzie demanded reinstatement to
active duty based on the September 30 order entered in the
present case. Under compulsion of the injunction, Selland and
Elzie have been returned tc active duty.
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evaluation, duty assignment, duty location, promotion,
enlistment or reenlistment."
App. H, infra, 2. The district court stated at the September 30
hearing that it would punish future violations of the new injunc-
tion with fires "at a minimum of $10,000 per day." App. I,
infra, 36.
7. The Government filed a notice of appeal from the dis-
trict court's amended order and judgment on the day after it was
entered, October 1, 1993. On the same day, the government filed:
(1) a motion (with suggestion of initial en banc consideration)
for partial summary reversal, or a stay pending appeal, of the
portion of the district court's September 30, 1993, amended order
and judgment that affords relief to persons other than Mein-
hold; and (2) an emergency motion for a temporary stay of the
amended order pending disposition of the motion for partial
summary reversal or stay pending appeal. 10/
On October 8, 1993, the Ninth Circuit issued an order
denying all of the government's outstanding motions. App. J,
infra. The court gave no reason for its denial of relief.
9/ The motion also sought a stay of the order insofar as it
requires destruction of any records pertaining to Meinhold.
10/ The government also filed a supplemental memorandum in
support of its motion for reconsideration of the Ninth Circuit's
September 21 order denying the government's motion for partial
summary reversal or a stay of the district court's January 29,
1993 order. On October 6, 1993, the court of appeals granted the
government's motion to consolidate the appeals from the January
29 and September 30 orders. Oral argument will be heard on both
appeals in December 1993.
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15
8. As noted above, on July 19, 1993, the President directed
that the new policy concerning homosexuality in the Armed Forces
be implemented on October 1. The Department of Defense has
prepared the regulations necessary to implement the basic princi-
ples announced by the President on July 19, and it is ready to
implement the new policy. In addition, the President's new
policy has been approved in bills passed by the Senate and the
House of Representatives. S. 1298, 103d Cong., 1st Sess. § 546
(1993) (App. P, infra); H.R. 2401, 103d Cong., 1st Sess. § 575
(1993) (App. Q, infra); see 139 Cong. Rec. $11,628 (daily ed.
Sept. 14, 1993), S11,773 (daily ed. Sept. 15, 1993), H7227 (daily
ed. Sept. 29, 1993), and $13,135 (daily ed. Oct. 6, 1993). Those
identical provisions are before the conference committee as part
of the Defense Authorization Act for 1994, which is expected to
be passed and signed into law in the next few weeks. See 139
Cong. Rec. $13,135 (daily ed. Oct. 6, 1993).
Each House's passage of the bill followed extensive hearings
in which congressional committees received testimony from mili-
tary leaders, military historians, sociologists, and individual
citizens. See S. Rep. No. 112, supra, at 268-270; see also id.
at 272-273, 286-292 (App. R, infra) ; H.R. Rep. No. 200, 103d
Cong., 1st Sess. 287 (1993) (App. S, infra). Based on that
legislative record, each bill begins with a lengthy set of
findings, including the following one:
The presence in the armed forces of persons who demon-
strate 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
16
unit cohesion that are the essence of military capabil-
ity.
S. 1298, supra, § 546 (a) (proposed 10 U.S.C. 654 (a) (15)) (App. P,
infra) ; H.R. 2401, supra, § 575 (a) (same) (App. Q, infra). Each
bill then provides that, with certain exceptions, "[a] member of
the armed forces shall be separated from the armed forces under
regulations prescribed by the Secretary of Defense" if it is
found (1) "[t]hat the member has engaged in, attempted to engage
in, or solicited another to engage in a homosexual act 11/, (2)
If [t] hat the member has stated that he or she is a homosexual or
?
bisexual"; or (3) [t] hat the member has married or attempted to
marry a person known to be of the same biological sex. S. 1298,
supra, § 546 (a) (proposed 10 U.S.C. 654 (b) ) (App. P, infra); H.R.
2401, supra, § 575 (a) (same) (App. Q, infra). Each bill requires
the Secretary to issue implementing regulations. S. 1298, supra,
§ 546 (b) (App. P, infra); H.R. 2401, supra,
§ 575 (b) (App. Q, infra) 12/
11/ The definition of the term "homosexual act" in the
bills is substantially identical to the definition of that term
in the directive announcing the President's new policy. Compare
S. 1298, § 546 (a) (proposed 10 U.S.C. 654 (f) (3)) (App. P, infra)
and H.R. 2401, § 575 (a) (same) (App. Q, infra) with App. K,
infra, 2.
12/ The bills require the regulations to be issued within
90 days of enactment. S. 1298, supra, § 546 (b) (App. P, infra) ;
H.R. 2401, supra, § 575 (b) (App. Q, infra). As discussed earli-
er, however, the Department of Defense is prepared to issue the
implementing regulations forthwith.
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17
ARGUMENT
It is well settled that this Court, or a single Justice, has
authority under Rule 23 of the Rules of this Court and the All
Writs Act, 28 U.S.C. 1651, to stay a district court order pending
appeal to the court of appeals. See Baker v. Haitian Refugee
Center, Inc., 112 S. Ct. 1072 (1992) ; United States Dep't of
Justice V. Rosenfeld, 111 S. Ct. 2846 (1991) ; Bureau of Economic
Analysis V. Long, 450 U.S. 975 (1981) ; Heckler V. Redbud Hospital
Dist., 473 U.S. 1308 (1985) (Rehnquist, Circuit Justice) ; Heckler
v. Lopez, 463 U.S. 1328 (1983) (Rehnquist, Circuit Justice) ; R.
Stern, E. Gressman & S. Shapiro, Supreme Court Practice $ 17.13
(6th ed. 1986). An application for a stay in these circumstances
calls for a weighing of (a) the probability that the courts below
were in error and that this Court would grant review; (b) whether
irreparable injury may occur absent a stay; and (c) the public
interests that may be affected. See Republican State Central
Comm. V. Ripon Society, 409 U.S. 1222, 1224 (1972) (Rehnquist,
Circuit Justice) ; see also California V. American Stores Co., 492
U.S. 1301 (1989) (O'Connor, Circuit Justice) ; John Doe Agency V.
John Doe Corp., 488 U.S. 1306 (1989) (Marshall, Circuit Justice).
Those factors strongly support a stay of the district court's
injunction, which, as amended by the court's September 30 order,
broadly intrudes into all aspects of military life and perempto-
rily prevents implementation of a policy that has been formally
adopted by the President, as Commander-in-Chief, in the interests
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of national security and personal privacy, and has been approved
by both Houses of Congress.
A.
THERE IS A STRONG PROBABILITY THAT THE DIS-
TRICT COURT'S DECISION WILL BE REVERSED UPON
FURTHER REVIEW
1. The district court's nationwide injunction violates
fundamental principles governing the permissible scope of injunc-
tive relief. The injunction improperly extends relief to persons
other than the sole named plaintiff and bars implementation of
the President's new policy, which was not applied to Meinhold and
which the court did not -- and was in no position to -- review.
a. As this Court and numerous courts of appeals have
recognized, an injunction may be no broader than necessary to
afford relief to the parties before the court. The district
ccurt's injunction conflicts with that principle. Indeed, as the
Ninth Circuit seemed to recognize in its March 12 order in this
very case, there is controlling precedent in that Circuit making
clear that the injunction below could not extend beyond Meinhold.
See App. E, infra, 1, citing Zepeda V. INS, 753 F.2d 719 (9th
Cir. 1983). But even if the court of appeals should nevertheless
affirm the injunction, there is a very strong probability that
this Court would grant review and reverse.
This Court has made clear that an injunction "should be no
more burdensome to the defendant than necessary to provide
complete relief to the plaintiffs. Califano V. Yamasaki, 442
U.S. 682, 702 (1979) Indeed, it is well settled that "[i]n-
junctive relief * * * cannot be granted to persons who are not
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before the court." 7 J. Moore, J. Lucas & K. Sinclair, Moore's
Federal Practice
1 65.17, at 65-167 (2d ed. 1993) In order for
a court to grant relief to such persons, the court must properly
certify a class action under Fed. R. Civ. ?. 23. Otherwise,
If [w]henever any individual plaintiff suffered injury as the
result of official action, he could merely file an individual
suit as a pseudo-private attorney general and enjoin the govern-
ment in all cases." Zepeda, 753 F.2d at 730 n.1. "But such
broad authority has never been granted to individual plaintiffs
absent certification of a class." Ibid.; accord Bresgal V.
Brock, 843 F.2d 1163, 1170-1171 (9th Cir. 1987).
Under these principles, the district court's injunction is
plainly overbroad. Meinhold is the only plaintiff in this case;
he did not bring it as a class action. The injunctive relief he
sought, a rescission of his discharge, was solely for his own
benefit. He sought declaratory relief sclely with respect to the
validity of "the regulations pursuant to which the Navy dis-
charged [him]," App. A, infra, 17, and not with respect to the
interim policy or the new policy announced after his discharge.
Thus, the only relief sought, and the only relief that could
properly be granted, related to Meinhold's own discharge under
the policy regarding homosexuality then in effect.
The injunction nonetheless is not limited to Meinhold or the
policy under which he was discharged. As amended by the district
court's September 30 order, the injunction purports to grant
relief for the benefit of millions of members of the United
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20
States armed services and all persons who seek to become service-
members. It enjoins the defendants from discharging, denying
enlistment, or taking "any action whatsoever" regarding "any
person,' and from creating or maintaining "any record or file,'
based on sexual orientation, except in cases of "sexual conduct *
* * proven to interfere with the military mission of the armed
forces of the United States." App. H, infra, 2-3. This breath-
takingly broad order far exceeds what was necessary to provide
relief to Meinhold.
In analogous circumstances, at least three other circuits
have set aside injunctions granting relief to nonparties. In
Lever Brothers Co. V. United States, 981 F.2d 1330, 1338 (1993),
the D.C. Circuit vacated an injunction to the extent it barred
the Customs Service from enforcing a regulation as to all foreign
goods, and not merely those of the plaintiff's foreign affili-
ates. In Brown V. Trustees of Boston Univ., 891 F.2d 337, 361
(1989), cert. denied, 496 U.S. 937 (1990), the First Circuit
vacated that portion of a district court order that enjoined a
university from discriminating on the basis of sex with respect
to the appointment, promotion, and tenure of all faculty members,
and not just the plaintiff. Finally, in Everhart V. Bowen, 853
F.2d 1532, 1538-1539 (1988), rev'd on other grounds, 494 U.S. 83
(1990), the Tenth Circuit vacated a statewide injunction barring
the Social Security Administration from enforcing a regulation
that was held invalid as applied to a single disability claimant.
See also, e.g., Ameron, Inc. V. United States Army Corps of
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Eng'rs, 787 F.2d 875, 887-891, modified on other grounds, 809
F.2d 979 (3d Cir. 1986), cert. dismissed, 488 U.S. 918 (1988) ;
Professional Ass'n of College Educators V. El Paso County Commu-
nity College Dist., 730 F.2d 258, 273-274 (5th Cir.), cert.
denied, 469 U.S. 881 (1984) ; Davis V. Romney, 490 F.2d 1360, 1366
(3d Cir. 1974) ; Tape Head Co. V. RCA Corp., 452 F.2d 816, 819
(10th Cir. 1971). But cf. Soto-Lopez V. New York City Civil
Service Comm'n, 840 F.2d 162, 168 (2d Cir. 1988).
In Brown, the First Circuit held that, in a non-class
action, an injunction prohibiting sex discrimination against all
faculty members would improperly "embroil the courts in the
University's internal affairs, allowing faculty members to
circumvent administrative procedures by simply invoking the
contempt jurisdiction of the district court whenever a dispute
arises." 891 F.2d at 361. Similar considerations apply with far
greater force in this case. The injunction at issue here direct-
ly involves the court in the ongoing management and discipline of
U.S. military personnel throughout the world, under the threat of
contempt sanctions. Yet as this Court has observed, it is
"difficult to conceive of an area
***
in which the courts have
less competence" than in the "complex, subtle, and professional
decisions as to the composition * * * and control of a military
force." Rostker V. Goldberg, 453 U.S. 57, 65 (1981). The
Court's decisions accordingly evince particular "concern with the
disruption of [t]he peculiar and special relationship of the
soldier to his superiors' that might result if the soldier were
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allowed to hale his superiors into court." Chappell V. Wallace,
462 U.S. 296, 304 (1983) (quoting Stencel Aero Engineering Corp.
V. United States, 431 U.S. 666, 676 (1977) (Marshall, J., dis-
senting), quoting in turn United States v. Brown, 348 U.S. 110,
112 (1954)).
The district court's injunction flouts that concern. It
purports to grant relief to "any person" with respect to dis-
charges, denials of enlistment, the maintenance and creation of
records, and "any action whatsoever" that "in any way affects"
the military status or duties of "gay or lesbian service mem-
bers," in the absence of what the district court would regard as
"sexual conduct * * * proven to interfere with the military
mission of the armed forces." App. E, infra, 2-3. The breadth
of this relief threatens to convert the district court into a
specialized tribunal asserting worldwide jurisdiction over
persons with claims based on sexual orientation against any
military officer or any person acting in concert with a military
officer. Indeed, the district court has indicated its willing-
ness to entertain such claims. App. I, infra, 31. 13/
13/ Meinhold argued in the court of appeals that a nation-
wide injunction was justified because it is necessary to afford
him effective relief. See 93-55242 Appellee's Br. at 44 (9th
Cir.) ; cf. Brown, 891 F.2d at 361. However, the federal courts
provide complete relief in hundreds of employment discrimination
cases by issuing injunctions limited solely to the individual
plaintiff. Meinhold's case is no different. Meinhold also
argued that the scope of relief was justified by his request for
declaratory relief stating that the regulations under which he
was discharged are unconstitutional on their face. See 93-55242
Appellee's Br. at 43 (9th Cir.). That argument ignores a crucial
difference between injunctive and declaratory relief. Under
United States v. Mendoza, 464 U.S. 154 (1984), a declaration that
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b. For the reasons just explained, the district court had
no power to grant injunctive relief to persons other than the
sole plaintiff in the case, respondent Meinhold. But the injune-
tion is especially improper in this case for several further
reasons. First, it applies to any actions under the President's
new policy, even though the new policy has not been applied to
Meinhold or to any other individual. Any effect on the new
policy by the district court's injunction is plainly improper.
In addition, the injunction even now reaches a broad range
of actions throughout the military and subjects military officers
and others who take such actions to possible contempt proceed-
ings. As extended by the district court's order of September 30,
the injunction covers not only discharges and denials of enlist-
ment but also
any action whatsoever, that in any way affects, im-
pedes, interferes with, or influences [homosexual
servicemembers'] military status, advancement, evalua-
tion, duty assignment, duty location, promotion, en-
listment or reenlistment based upon their sexual orien-
tation in the absence of proven sexual conduct -- if
such conduct is proven to interfere with the military
mission of the armed forces of the United States.
App. H, infra, 2-3. The validity of that broad array of actions,
however, has never been at issue in this case. In granting
summary judgment for Meinhold on January 29, the district court
held only that the government had failed, on the basis of the
the Navy's regulations are invalid would be binding only as
between the Navy and Meinhold; it would not have subjected the
defendants to contempt sanctions for implementing those regula-
tions as to other servicemembers. See Steffel V. Thompson, 415
U.S. 452, 471 (1974) ; Kennedy V. Mendoza-Martinez, 372 U.S. 144,
155 (1963)
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rationale and materials it then offered, to prove a rational
basis for Meinhold's discharge under the military policy regard-
ing homosexuals then in effect. 14/
Furthermore, the injunction permits the district court to
entertain challenges to the interim policy that are not ripe for
judicial review and as to which administrative remedies must be
exhausted - - for example, challenges by a servicemember who,
because of statement of homosexuality, has been transferred to
standby reserve pursuant to the interim policy. There are,
however, procedures within each of the military services that
must be exhausted before such challenges are presented to a
court. Each of the military services has administrative proce-
dures for separation that provide for evidentiary hearings and
administrative appeals. See 32 C.F.R. pt. 41; see also App. A,
infra, 9-12 (describing administrative proceedings leading to
Meinhold's discharge). In addition, pursuant to 10 U.S.C. 938,
each of the services has established administrative procedures
for consideration of grievances by servicemembers concerning
matters short of discharge. See Chappell V. Wallace, 462 U.S. at
302-303; Apps. X, Y, & Z, infra (armed service grievance proce-
dures).
The discharge and grievance procedures allow a servicemember
to develop evidence concerning his or her case and provide the
14,
/
Because the September 30 order drastically expanded the
January 29 order, there is a serious question whether the dis-
trict court had jurisdiction to enter the September 30 order
pending the appeal from the January 29 order that had by then
been filed.
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military service involved with an opportunity to resolve the case
on non-constitutional grounds. For example, if an individual
made a statement of homosexuality, the hearing would provide an
opportunity for the individual to rebut the regulatory presump-
-~
tion that arises under the interim policy that he cr she engages
in homosexual acts or has a propensity or intent to do SO. See
App. K, infra, 2; see also pp. - , infra. Utilization of the
internal military procedures would then furnish a court with a
basis for evaluating the individual's constitutional claims in
light of the service's factual determinations and in the context
cf the application of the relevant portion of the governing
policy to a concrete factual situation. See, e.g., Reno v.
Catholic Social Services, Inc., 113 S. Ct. 2485, 2494-2497
(1993) ; Weinberger V. Salfi, 422 U.S. 749, 765-766 (1975).
The factors weighing against premature judicial intervention
are especially compelling in this case. This case arose under
the prior policy regarding homosexuality in the armed services.
Thus, the validity of the President's new policy and of the
interim policy now in effect was not at issue. Consequently, the
record does not contain any evidence concerning the interim
policy or the new policy, the report of the Military Working
Group, upon which the new policy is based (App. T, infra), or the
congressional testimony concerning the President's policy, upon
which the pending legislation is based (App. V, infra). This
case, in short, is plainly an improper vehicle for addressing the
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multifarious claims that undoubtedly will arise under the injunc-
tion. 15/
C. This Court need not review the district court's ruling
on the merits for purposes of considering this application for a
stay. We seek relief from the district court's injunction only
insofar as it (1) grants relief to persons other than Meinhold,
and is therefore overbroad and intrudes the court into military
affairs entrusted to the political Branches, and (2) may be read
to require the destruction of documents (including those related
to Meinhold), a requirement that must be stayed not only to
prevent the irreparable harm that will result from destruction of
the documents but also to preserve for appellate review the issue
of the validity of the document-destruction provision, cf. John
Dce Agency V. John Doe Corp., 488 U.S. 1306, 1309 (1989) (Mar-
shall, Circuit Justice), discussed pp. - , infra. Under
Heckler V. Lopez, 463 U.S. 1328 (Rehnquist, Circuit Justice),
motion to vacate stay denied, 464 U.S. 879 (1983) ; see also 464
U.S. at 881 (Stevens, J., with Blackmun, J., dissenting in part),
it is clear that a district court's injunction may be stayed by
this Court pending appeal to a court of appeals when, as here,
15/ The district court recognized that it was in no posi-
tion to rule on the validity of the President's new policy. App.
I, infra, 4-5. Yet its injunction plainly bars the implementa-
tion of that policy. See pp. - , infra. Most obviously, the
injunction requires that discharges be based on proof that
homosexual conduct has occurred and will interfere with the
military mission, whereas under the President's new policy
prohibited sexual conduct includes unrebutted statements demon-
strating an intent or propensity to engage in homosexual acts.
Compare App. H, infra, 2-3, with App. K, infra, 2.
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action
challenging the Secretary S failure
to follow two Ninth Circuit decisions in terminating the payment
of disability benefits under Title II and Title XVI of the Social
Security Act. 463 U.S. at 1328. After certifying a class, the
district court granted a preliminary injunction that, among other
things, required the Secretary to pay benefits to every recipient
of disability benefits whose benefits had been terminated within
the preceding two years because of cessation of disability, until
the Secretary established their lack of disability in accordance
with the two Ninth Circuit decisions that she had declined to
follow. Id. at 1329-1330, 1334. Then-Justice Rehnquist stayed
that portion of the injunction pending appeal to the Ninth
Circuit, and this Court subsequently sustained the stay.
The stay was based solely on the overbreadth of the district
court's injunction. Then-Justice Rehnquist assumed that the
Ninth Circuit would rule for the plaintiff class on the merits of
its challenge to the Secretary's policy and that a majority of
the members of this Court would not vote to review the Ninth
Circuit's ruling on the merits. Id. at 1331. He also accepted
the determinations of both lower courts, upon the Secretary's
application to those courts for a stay, that the balance of
equities favored the plaintiffs. Id. at 1337. He nonetheless
granted 2 stay because the district court's injunction went "far
2a
beyond the application of [the two prior Ninth Circuit decisions
that the Secretary declined to follow] to concrete cases before
'it." Id. at 1331. More specifically, it granted relief to
persons who, after having their benefits terminated, failed to
exhaust their administrative remedies. Id. at 1334-1336. Then-
Justice Rehnquist rejected the plaintiffs' argument that "the
District Court ha [d] merely exercised its broad remedial powers
to return the class members to the positions they occupied before
the unlawful termination." Id. at 1336. He stated, "Whatever
might be the merits of such a determination in as lawsuit between
private litigants, the remedial powers of a federal ccurt in an
action seeking to enjoin an agency of a coordinate branch of the
government are circumscribed." Ibid. As indicated above, this
Court subsequently refused to vacate the stay. 464 U.S. 879
(1983).
This Court's action in Lopez compels the conclusion that a
stay is warranted here. In Lopez, a class had been certified;
thus, the injunction, though overbroad, at least did not extend
beyond the plaintiffs. Nevertheless, a stay was entered because
it provided relief to plaintiffs who had failed to exhaust
administrative remedies. Here, respondent Meinhold was and is
the sole plaintiff in this case. Yet the injunction plainly
extends well beyond him by granting relief to persons who are not
entitled to such relief both because they are not parties to this
case and because they have failed to exhaust their administrative
remedies. Moreover, Lopez involved the administration of the
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Social Security program in the civilian sector. In that context,
it is well settled that courts generally may not grant relief
that "propel [s] [them] into the domain which Congress has set
aside exclusively for the administrative agency." Lopez, 463
U.S. at 1333 (quoting SEC V. Chenery Corp., 332 U.S. 194, 196
(1947) ) That principle applies with much greater force in the
context of judicial relief that intrudes directly into military
affairs and interferes with the policy of the Commander-in-Chief
and Congress. See Chappell v. Wallace, 462 U.S. at 301.
2. As we have said, this Court need not reach the merits of
the equal protection issue (either as it affects Meinhold's own
discharge or more generally) in order to grant this application
for a stay, in light of the fundamental defects in the scope and
intrusiveness of the injunction. Nevertheless, the district
court seriously erred in its analysis of Meinhold's equal protec-
tion challenge to his discharge. The district court's equal
protection analysis conflicts with the decisions of the other
courts of appeals that have considered equal protection challeng-
es to military discharges based on homosexuality. 16/ Thus,
16 Dronenburg V. Zech, 741 F.2d 1388, 1391-1398 (D.C. Cir.
1984) ; Ben-Shalom V. Marsh, 881 F.2d 454, 463-466 (7th Cir.
1989), cert. denied, 494 U.S. 1004 (1990) ; Rich V. Secretary of
Army, 735 F.2d 1220, 1229 (10th Cir. 1984) ; Woodward V. United
States, 871 F.2d 1068, 1075-1077 (Fed. Cir. 1989), cert. denied,
494 U.S. 1003 (1990) ; see also Schowengerdt V. United States, 944
F.2d 483, 489-490 (9th Cir. 1991) (rejecting substantive due
process challenge), cert. denied, 112 S. Ct. 1514 (1992); Beller
V. Middendorf, 632 F.2d 788, 812 (9th Cir. 1980) (same), cert.
denied, 452 U.S. 905 (1981) ; High Tech Gays V. Defense Indus.
Security Clearance Off., 895 F.2d 563, 570-578 (9th Cir. 1990)
(rejecting equal protection challenge); but see Pruitt V. Cheney,
963 F.2d 1160 (9th Cir. 1991), cert. denied, 113 S. Ct. 655
©2025143643
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quite apart from the improper breadth and intrusiveness of the
injunction, there is a strong probability that this Court would
grant further review and reverse if the Ninth Circuit were to
affirm the district court's decision.
Judicial consideration of an equal protection challenge in
this setting is governed by three principles. First, it is
firmly established that courts owe great deference to the "con-
sidered professional judgment" of the "appropriate military
officials" regarding the composition of the Armed Forces.
Goldman V. Weinberger, 475 U.S. 503, 509 (1986); see also Depart-
ment of Navy V. Egan, 484 U.S. 518, 527-530 (1988) (courts must
show "utmost deference" to "[p]redictive judgments [s] by the
Executive Branch such as those in the military context). Second,
in light of the foregoing principles of deference, it is appro-
priate in the special military setting to apply the rational-
basis standard for reviewing equal protection challenges set
forth in Heller V. Doe, 113 S. Ct. 2637 (1993). Under that
standard, a classification challenged on equal protection grounds
"must be upheld * * * if there is any reasonably conceivable
state of facts that could provide a rational basis for the
classification." Id. at 2642. Such a classification is "not
subject to courtroom factfinding and may be based on rational
speculation unsupported by evidence or empirical data," and the
burden is on the one attacking the classification "to negative
every conceivable basis which might support it whether or not the
(1992), discussed in note , infra.
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basis has a foundation in the record." Id. at 2643 (internal
quotation marks and citations omitted). Third, with regard to
classifications in the military context, nothing in the Constitu-
tion requires the President or the Congress to eschew categorical
rules in favor of a case-by-case inquiry into the extent to which
particular conduct may interfere with the military mission.
Solorio V. United States, 483 U.S. 435 (1987) ; see also Wein-
berger V. Salfi, 422 U.S. 749 (1975) ; Beller V. Middendorf, 632
F.2d 788, 808-809 n.20 (9th Cir. 1980), cert. denied, 452 U.S.
905 (1981).
The district court's analysis and the resulting injunction
violate these principles. First, the court refused to accord any
?
deference to the judgment of the military under the former policy
that " [t] he presence in the military environment of persons who
engage in homosexual conduct or who, by their statements, demon-
strate a propensity to engage in homosexual conduct, seriously
impairs the acccmplishment of the military mission." DOD Direc-
tive 1332.14 (H) (1) (a) (App. I, infra, 1) 17/ App. C, infra, 2-3.
17/ The directive setting forth the military policy on
homosexuality at the time of Meinhold's discharge explained that
the presence of actively homosexual members "adversely affects
the ability of the Military Services to maintain discipline, good
order, and morale; to foster mutual trust and confidence among
servicemembers; to ensure the integrity of the system of rank and
command; to facilitate assignment and worldwide deployment of
servicemembers who frequently must live and work under close
conditions affording minimal privacy; to recruit and retain
members of the Military Services; to maintain the public accept-
ability of military service; and to prevent breaches of securi-
ty." DOD Directive 1332.14 (H) (1) (a) (App. L, infra, 1); see also
Beller V. Middendorf, 632 F.2d 788, 812 (9th Cir. 1980) (Kennedy,
J.), cert. denied, 452 U.S. 905 (1981).
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Second, the court required the covernment to establish 2. rational
basis for the policy regarding homosexuals through record evi-
dence, a requirement that cannot be squared with Heller. 18/
Finally, the court erred by entering an injunction that bars the
discharge of a servicemember on the basis of homosexual acts or
statements in the absence of proof of specific "sexual conduct *
+ * proven to interfere with the military mission of the armed
forces of the United States." App. H, infra, 2. That prohibi-
tion cannot be squared with the authority of the political
Branches to adopt categorical rules governing military personnel
that operate without the need to establish that application of
the rule in each particular case is necessary to prevent inter-
ference with the military mission. See Solorio V. United States,
19/
supra.
18/ The district court gleaned such a requirement from
Pruitt V. Cheney, 963 F.2d 1160 (9th Cir. 1991), cert. denied,
113 S. Ct. 655 (1992). App. C, infra, 2-3. In Pruitt, the Ninth
Circuit reversed an order dismissing an equal protection chal-
lenge by a homosexual servicemember to her discharge and remanded
the case for further proceedings on whether the government had
established, through evidence in the record, a rational basis for
the discharge. 963 F.2d at 1165-1167. Pruitt does not survive
Heller V. Doe, supra. In any event, the government did produce
declarations and other evidence in the district court in this
case setting forth the basis for the policy. See Excerpts of
Record 52-74, 84.
19/ Contrary to the district court's belief, the policy it
invalidated was not based "merely on status." App. C, infra, 2.
The Seventh and Federal Circuits have recognized as much, holding
that the policy targets past and prospective homosexual conduct.
Ben-Shalom V. Marsh, 881 F.2d 454, 464 (7th Cir. 1989), cert.
denied, 494 U.S. 1004 (1990) i Woodward V. United States, 871 F.2d
1068, 1074 (Fed. Cir. 1989), cert. denied, 494 U.S. 1003 (1990);
cf. NLRB V. Curtin Matheson Scientific, Inc., 494 U.S. 775, 788-
789 (1990) (discussing use of rebuttable presumptions).
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Although the President's new policy differs in meaningful
ways from the policy that Meinhold challenged, particularly with
respect to conditions of enlistment, recognition of sexual
orientation per se as a personal and private matter, and grounds
for investigations, the new policy does not require that particu-
lar sexual conduct be proven, in each instance, to interfere with
the military mission of the Armed Forces. Applying this aspect
of the district court's injunction to the new policy thus is
similarly flawed. Furthermore, the new policy includes in its
definition of prohibited sexual conduct unrebutted statements
that demonstrate an intent or propensity to engage in homosexual
acts. To the extent that the district court's injunction ex-
cludes such statements from the coverage of "sexual conduct *
proven to interfere with the military mission of the armed forces
of the United States," it fails to accord appropriate deference
to military judgments. The serious flaws in the district court's
ruling or the equal protection issue thus provide powerful
support for a stay.
B. THE DISTRICT COURT'S INJUNCTION WILL CAUSE
IRREPARABLE INJURY UNLESS STAYED PENDING
APPEAL
1. Most importantly, the district court's injunction causes
irreparable injury by preventing the implementation of the new
policy on homosexual conduct in the Armed Forces. That policy,
the central principles of which were announced on July 19, 1993,
was developed by the President as Commander-in-Chief and has been
approved by each House of Congress in identical bills. Both
34
political Branches have determined that the new policy is neces-
sary to the effectiveness and readiness of our Armed Forces, and
the Department of Defense has prepared the necessary implementing
regulations.
Although Meinhold did not challenge the President's new
policy, the injunction bars implementation of that policy by
setting forth standards that conflict with the standards devel-
oped by the President and Congress. Specifically, as explained
above, under the new policy (as well as under the pending legis-
lation), servicemembers who, like Meinhold, make unrebutted
statements demonstrating their propensity or intent to engage in
homosexual acts are subject to discharge. App. K, infra, 1-2;
see pp. supra. Yet the injunction bars the discharge of
persons who make such statements unless the military can prove
both that they engaged in specific "sexual conduct" that is
proven to "interfere with the mission of the armed forces." App.
H, infra, 1-2. Indeed, the injunction appears to prohibit the
Department of Defense even from creating records regarding such
persons in the absence of proven conduct that satisfies the
district court's standard.
The barrier erected by the district court to implementation
of the President's new policy and the pending legislation is all
the more egregious in light of the enormous amount of time and
attention that the political Branches devoted to developing that
policy. The policy is the result of an exhaustive review by the
Secretary and other high-level military and civilian officials,
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including the Joint Chiefs of Staff and a military working group
in the Department of Defense. Those officials consulted exten-
sively with members of Congress, military officers, enlisted
personnel, and outside experts, and they considered "a huge
outpouring of mail from the American people on all sides of this
issue." 7/20/93 Tr. of Hearing Before the Senate Comm. on Armed
Services, supra, at 22 (testimony of Gen. Powell).
The resulting policy reflects a carefully crafted compromise
on an extraordinarily sensitive issue of great importance to both
servicemembers and the general public. It has, moreover, been
approved by both Houses of Congress in identical provisions of a
bill that is now pending before the conference committee and is
expected to be enacted shortly. See S. 1298, supra, § 546 (App.
P, infra); H.R. 2401, supra, § 575 (App- Q, infra) ; see also pp.
- , supra. The policy thus bears the clear stamp of approval
of the politically accountable Branches. Its implementation
should not be thwarted by a single district court in a suit
brought by a single individual. Cf. Walters V. National Ass'n of
Radiation Survivors, 468 U.S. 1323, 1324 (1984) (Rehnquist J.,
Circuit Justice).
2. As extended by the district court's September 30 order,
the injunction by its terms also has an immediate impact on the
effectiveness and readiness of our Armed Forces. The injunction
prohibits discharges of servicemembers on the basis of homosexual
acts or statements except in conformity with the stringent
standard that the court imposed -- i.e., proof of specific
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"sexual conduct * * * proven to interfere with the military
mission of the armed forces." App. E, infra, 2. That prohibi-
tion, standing alone, has a dramatic impact. Since 1989, more
7
than 3500 servicemembers have been discharged under the mili-
tary's regulations regarding homosexuality. Declaration of Edwin
Dorn, Assistant Secretary of Defense for Personnel and Readiness
(App. W, infra). Moreover, at least 115 separation proceed-
-
ings are pending under those regulations. Ibid. Those proceed-
ings have been held in abeyance as a result of the Meinhold
injunction.
In addition to discharges, the injunction applies to "any
action[] whatsoever" that "in any way affects" an individual's
"military status, advancement, evaluation, duty assignment, duty
location, promotion, enlistment or reenlistment." App. H, infra,
2-3. Thus, a commanding officer must refrain from taking actions
that he or she considers necessary to maintaining the readiness
of his or her units, if the action adversely affects a service-
member in one of the ways specified in the injunction, unless the
commanding officer can prove that the servicemember has engaged
in specific sexual conduct that "interferes with the military
mission." For example, a commander in charge of a unit engaged
in hostilities apparently could not transfer to another unit a
servicemember who had engaged in prohibited homosexual conduct,
even if the commander concluded that the person's presence were
having an immediate adverse impact, unless the commander could
prove that the member engaged in specific sexual conduct and that
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such conduct (as opposed to the mere presence of the service-
member) interfered with the military mission. Military command-
ers should not be placed in such a dilemma when the court of
appeals has yet to pass upon the validity of the injunction.
The effect of the injunction in this regard is not merely
hypothetical. One servicemember previously transferred to
standby reserve under the interim policy has already been re-
stored to active duty under compulsion of the Meinhold injunc-
tion, despite the military's determination that the presence of
persons who had engaged in conduct prohibited by that policy
undermines military readiness and effectiveness. Elzie V. Aspin.
et al., Civil No. 93-1853 (D.D.C.); see also Selland V. Aspin,
supra, (App. U, infra), discussed in note , supra. Another
servicemember -- against whom discharge proceedings were insti-
tuted based on her homosexual affair with a subordinate cfficer
and who subsequently brought an action challenging those proceed-
ings -- has invoked the Meinhold injunction to demand that the
proceedings be stayed and that she be promoted; she contends that
the military has failed to prove that her conduct interfered with
the military mission of the armed services and that such proof is
required under the Meinhold injunction. See De Jesus Lopez V.
Donley, No. 93-1162 (5th Cir. June 7, 1993).
3. The potential for irreparable injury resulting from the
injunction is compounded by its breadth and vagueness. The
Department of Defense is a vast organization, composed of hun-
dreds of components and millions of personnel worldwide. Imple-
any
policy
officers in the field. The preparation and issuance or those
directives necessarily involves considerable thought and effort,
coordination among the Services, and consultation with other
government entities and outside experts. Such efforts have been
underway since July in order to implement the President's new
policy regarding homosexual conduct in the military.
Now, however, the district court has negated those efforts
and ordered the Department to comply immediately with the alter-
native "policy" embodied in its injunction. It is virtually
impossible, though, to manage an organization as huge as the
Department of Defense on the basis of such a broad and ambiguous
injunction, which disregards the need for clear and specific
guidance to the field. For instance, the injunction bars dis-
charges or any other action on the basis of homosexuality "in the
absence of sexual conduct * * * proven to interfere with the
military mission of the armed forces of the United States." " App.
H, infra, 2-3. It is uncertain what the district court meant by
"sexual conduct." It is unclear, for example, whether the term
encompasses the full range of conduct reached by the term "homo-
sexual act," as the latter term is used in Department of Defense
regulations and in the President's new policy to refer to conduct
for which separation is required. See App. L, infra, 1; note
,
supra.
39
It is also unclear how "sexual conduct" can be "proven to
interfere with the military mission of the armed forces of the
United States. " The injunction could be read to require individ-
ualized proof in each case that the particular sexual conduct
interfered with the military mission of the Armed Forces. See
Selland v. Aspin, supra, at 2 (App. U, infra). Yet the district
court did not indicate what type of interference (or proof
thereof) it would regard as sufficient. Mcre fundamentally, a
requirement of case-by-case proof ignores the overriding need for
clear rules in regulating the behavicr of large numbers of
people, especially in the military setting. That need is re-
flected both in the policy under which Meinhold was discharged
and the President's new policy, which are premised on the consid-
ered military judgment that the presence of individuals who
engage in (or demonstrate an intent or propensity to engage in)
homosexual acts is, as a categorical matter, detrimental to the
military mission of the Armed Forces. App. L, infra, 1. It is
also reflected in the provision of the Uniform Code of Military
Justice that makes it illegal to commit sodomy, without regard to
whether that conduct is proven, in any particular case, to
interfere with the military mission. See 10 U.S.C. 925. 20/
The prospects of irreparable injury flowing from the breadth
and vagueness of the injunctions are not limited to the military
20/ See also S. Rep. No. 112, supra, at 284 (under prior
policy and President's new policy, "[t]he government is not
required to prove in each individual case that a service member
will not remain celibate or to otherwise prove adverse impact on
a specific unit").
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and its commanding officers; they also extend to the very persons
the injunction purports to benefit. That is SO because service-
members and applicants for enlistment may be lulled by the
injunctions into the belief that they may make statements demon-
strating an intent or propensity to engage in homosexual acts, or
may engage in homosexual acts, without exposing themselves to
discharge or disciplinary action. If the injunctions are subse-
quently set aside, however, those individuals could be subject to
discharge under the new policy.
4. As extended on September 30, the district court's
injunction requires the Department of Defense to undertake a
massive search to identify all records, "whether official or
unofficial,' that are "based on sexual orientation," except those
involving "proven sexual conduct," and it prohibits the Depart-
ment from "maintaining or creating" such records. App. H, infra,
2. The burdensomeness of that requirement cannot be overstated.
Because the order encompasses "any member of the armed
forces of the United States" (App. H, infra, 2), the required
search would have to cover files and records relating to some 5.1
million individuals (1.7 million on active duty, 1.8 million on
reserve, and 1.6 million retired). Most of those records are not
available in a full-text computer data base, and a search would
therefore require hand-processing of millions of pages. More-
over, the records are not in a single location; they may be found
anywhere in the world that the Armed Forces are found. It would
require an enormous expenditure of financial and human resources
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just to set up a program for complying with the record-search
requirement.
21/
The September 30 order does not end with requiring the
identification of files and records "based on sexual orienta-
tion"; it also prohibits the Department from "creating or main-
taining" such records. Many basic files are covered by the
order: enlistment records, which previously required service-
members to disclose whether they were homosexual; medical re-
cords, including the records of mental health professionals;
legal assistance and defense counsel records, including attorney-
client communications; security records, including reports on
background investigations required for security clearance; and
chaplaincy records. Many of those records might contain informa-
tion on a servicemember's sexual orientation, and therefore could
be subject to destruction under the vaguely worded prohibition on
the maintenance or creation of records "based on sexual orienta-
tion in the absence of proven sexual conduct." App. H, infra, 2.
The integrity of the Department's and Armed Forces' recordkeeping
systems, however, is vital to the proper management and deploy-
21/
In the court of appeals, Meinhold did not dispute that
the injunction appears to require the massive search of records
described in the text. Instead, he suggested that the defendants
could temporarily avoid contempt sanctions by developing a
program for the records search. See Meinhold's Opp. to Gcv't's
Emergency Motions Under Rule 27-3, etc., at 11 n.6. That passing
suggestion is scant assurance for the thousands of civilian and
military personnel who will have custody of records over the
period of months (perhaps a year or more) that proceedings are
pending in the Ninth Circuit (and then, perhaps, in this Court).
In any event, even the burden of putting such a plan in place is
staggering. See Dorn Decl. at - (App. W, infra).
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ment of military personnel. If the documents were destroyed,
they would be irretrievably lost. Even if references to homosex-
uality that do not meet the district court's standards could be
redacted in & manageable fashion, those redacted portions would
be irretrievably lost in the absence of a stay. A stay therefore
is justified to prevent the issue of the validity of the docu-
ment-destruction provision in the injunction from becoming moot
on appeal, John Doe Agency V. John Doe Corp., 488 U.S. 1306, 1309
(1989) (Marshall, Circuit Justice), and to prevent the irrepara-
ble injury that loss of the documents would entail.
C.
THE PUBLIC INTEREST AND THE BALANCE OF THE
EQUITIES WEIGH HEAVILY IN FAVOR OF A STAY
The public debate on the issue of homosexual conduct by
members of the Armed Services has been prolonged and intense. It
has consumed the attention of the Commander-in-Chief, other
military leaders, and Congress. That process has resulted in the
adoption of a policy by the President, approved by both Houses of
Congress, that embodies a considered judgment by military offi-
cers and the political Branches regarding the appropriate accom-
modation between a matter of personal privacy and the overriding
national interest in ensuring military readiness. That policy
and the military judgment that underlies it are owed the utmost
deference by the courts, and the policy is presumptively consti-
tutional. Cf. Walters, 473 U.S. at 319. Correspondingly, an
injunction that peremptorily bars implementation of such a policy
in the military context -- adopted by the President and approved
by both Houses of Congress based on an extensive legislative
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record must be presumed to cause irreparable injury. Cf.
Walters V. National Ass'n of Radiation Survivors, 468 U.S. 1323,
1324 (Rehnquist, Circuit Justice), motion to vacate stay denied,
465 U.S. 877 (1984). The public has a strong interest in having
the President's new policy regarding homosexual conduct in the
Armed Forces implemented forthwith, so as to preserve the confi-
dence of members of the Armed Forces and the public in the
ability of their elected and military officers to address the
governance of the Armed Forces, a power vested in the Executive
and Legislative Branches by the Constitution. U.S. Const. Art.
I, § 8, Cls. 12-14, Art. II, § 2, Cl. 1.
Moreover, the irreparable harm that would result from denial
of a stay far outweighs any cognizable harm that might result
from the granting of a stay. Meinhold, the only named plaintiff,
has already been granted complete relief. He has been reinstated
and reassigned to his previous position, and we do not, in this
application, seek a stay of the injunction insofar as it grants
him that relief. Therefore, if a stay is granted, Meinhold will
suffer, at most, a delay in the vindication of his generalized
and abstract interest in the nationwide scope of the injunction
-- relief that he has no standing to obtain. Any potential for
harm to other servicemembers should not weigh in favor of a stay,
because they are not parties to the suit; because the injunction
may actually harm other servicemembers and enlistees by inducing
statements and conduct that would violate military policy and
lead to discharge; because any potential for harm to any other
44
servicemember if a stay is granted is speculative until final
action has been taken against that member; and because at that
point each such servicemember may seek relief on his or her own
behalf. In short, the public interest and balance of the equi-
ties strongly favor a stay of the district court's broad injunc-
tions, which were wholly beyond its power to enter.
CONCLUSION
The January 29 and September 30, 1993, orders of the United
States District Court for the Central District of California
should be stayed pending appeal, insofar as they grant relief to
anyone other than respondent Meinhold and require destruction of
records, including records pertaining to Meinhold.
Respectfully submitted.
DREW S. DAYS, III
Solicitor General
OCTOBER 1993