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FindLaw | 'Don't Ask, Don't Tell' Federal Appeals Court Ruling

A federal appeals court ruling upholding the dismissal of a challenge to the U.S. military's "don't ask, don't tell" policy regarding homosexual service members.
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  • 1. United States Court of Appeals For the First Circuit Nos. 06-2313, 06-2381 THOMAS COOK; MEGAN DRESCH; LAURA GALABURDA; JACK GLOVER; DAVID HALL; MONICA HILL; JENNY LYNN KOPFSTEIN; JENNIFER MCGINN; JUSTIN PEACOCK; DEREK SPARKS; STACY VASQUEZ, Plaintiffs, Appellants, JAMES E. PIETRANGELO, II, Plaintiff, v. ROBERT M. GATES*, Secretary of Defense; MICHAEL CHERTOFF, Secretary of Homeland Security; UNITED STATES OF AMERICA, Defendants, Appellees. APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. George A. O'Toole, Jr., U.S. District Judge] Before Howard, Circuit Judge, Campbell, Senior Circuit Judge and Saris**, District Judge. * Pursuant to Rule 43(c)(2) of the Federal Rules of Appellate Procedure, Robert M. Gates is automatically substituted for his predecessor as Secretary of Defense, Donald H. Rumsfeld. ** Of the District of Massachusetts, sitting by designation.
  • 2. Stuart F. Delery, with whom Benjamin C. Mizer, Wilmer Cutler Pickering Hale and Dorr LLP, Sharra E. Greer, Kathi S. Westcott, Sharon E. Debbage Alexander, Aaron D. Tax, and Servicemembers Legal Defense Network were on brief, for appellants. James E. Pietrangelo, II, pro se. Gregory G. Katsas, Principal Deputy Associate Attorney General with whom Michael J. Sullivan, United States Attorney, Peter D. Keisler, Assistant Attorney General, Jonathan F. Cohn, Deputy Assistant Attorney General, Anthony J. Steinmeyer, Assistant Director Appellate Staff, Civil Division and Mark T. Quinlivan, Assistant United States Attorney were on brief, for appellees. Tobias Barrington Wolff, on brief for amici curiae Akhil Reed Amar, C. Edwin Baker, Erwin Chemerinsky, Owen M. Fiss, Pamela S. Karlan, Andrew Koppelman, Kathleen M. Sullivan, and Laurence H. Tribe, on brief for amici curiae Constitutional Law Professors. Virginia A. Seitz, Eamon P. Joyce, and Sidley Austin LLP, Leslie M. Hill, Robert Weiner, Christopher Anderson, and Arnold & Porter LLP, on brief for amici curiae Law Professors. Rose A. Saxe, Matthew A. Coles, Kenneth Y. Choe, and Sarah Wunsch, on brief for amicus curiae American Civil Liberties Union and American Civil Liberties Union of Massachusetts. Patricia M. Logue and Bonnie Scott Jones, on brief for amicus curiae Lambda Legal Defense and Education Fund, Inc. John E. Bies, D. Jean Veta, and Covington & Burling, on brief for amicus curiae of American Sociological Association and Social Science Professors. Steven W. Fitschen and Barry C. Hodge, on brief for amicus curiae of the National Legal Foundation. Gary D. Buseck, Mary L. Bonauto, Gay & Lesbian Advocates & Defenders, William M. Hohengarten, Luke C. Platzer, and Jenner & Block LLP, on brief for amicus curiae Gay & Lesbian Advocates & Defenders. June 9, 2008 - 2 -
  • 3. HOWARD, Circuit Judge. In 1993, Congress enacted a statute regulating the service of homosexual persons in the United States military. 10 U.S.C. § 654 (2007)(the Act). The Act, known as quot;Don't Ask, Don't Tell,quot; provides for the separation of members of the military who engage, attempt to engage, intend to engage, or have a propensity to engage in a homosexual act. Id. § 654(b). In the aftermath of this congressional action, several members of the military brought constitutional challenges, claiming the Act violated the due process and equal protection components of the Fifth Amendment and the free speech clause of the First Amendment. These challenges were rejected in other circuits. See Able v. United States, 155 F.3d 628 (2d Cir. 1998); Holmes v. Cal. Army Nat'l Guard, 124 F.3d 1126 (9th Cir. 1997); Richenberg v. Perry, 97 F.3d 256 (8th Cir. 1996); Able v. United States, 88 F.3d 1280 (2d Cir. 1996); Thomasson v. Perry, 80 F.3d 915 (4th Cir. 1996) (en banc). In 2003, the United States Supreme Court invalidated, on substantive due process grounds, two convictions under a Texas law criminalizing sodomy between consenting homosexual adults. Lawrence v. Texas, 539 U.S. 558 (2003). Lawrence has reinvigorated the debate over the Act's constitutionality. E.g., Pamela Glazner, Constitutional Doctrine Meets Reality: Don't Ask, Don't Tell in Light of Lawrence v. Texas, 46 Santa Clara L. Rev. 635 (2006); Note, The Military's Ban on Consensual Sodomy in a Post-Lawrence - 3 -
  • 4. World, 21 Wash. U. J. L. & Pol’y 379 (2006); Jeffrey S. Dietz, Getting Beyond Sodomy: Lawrence and Don't Ask, Don't Tell, 2 Stan. J. C. R. & C. L. 63 (2005). This case is the second post-Lawrence challenge to the Act to be decided by a federal court of appeals.1 I. Statutory and Regulatory Scheme We begin by summarizing the statutory framework and the accompanying Department of Defense (Department) directives. During the 1992 campaign, President Clinton, preceding his first election, promised to revisit the longstanding Department policy of separating homosexual individuals from military service. After taking office, President Clinton directed the Secretary of Defense to review Department policy, and Congress undertook its own review. As part of the congressional review, then-Chairman of the Joint Chiefs of Staff, Colin Powell, in testimony explicitly adopted by the Senate Armed Services Committee, explained the 1 The 9th Circuit recently decided Witt v. Dep't of the Air Force, 2008 U.S. App. LEXIS 10794, at *1 (9th Cir. May 21, 2008). In Witt, the plaintiff argued that the Act violated substantive and procedural due process and the Equal Protection Clause. See Id. at *1-2. The district court dismissed the suit under Fed. R. Civ. P. 12(b)(6). Id. at 2. The 9th Circuit reversed the district court's as applied due process rulings, remanding for further proceedings, and affirmed the court's dismissal of the plaintiff's Equal Protection claim. We agree with much of the reasoning set forth in that opinion but also part ways with the 9th Circuit's approach in some significant respects. Most importantly, for reasons that will become apparent, we resolve differently the as applied substantive due process claim brought in this case. We also note that the case before us includes facial challenges to the Act and a First Amendment claim. - 4 -
  • 5. rationale for the policy of separating certain homosexual members of the military from continued service: It is very difficult in a military setting, where you don't get a choice of association, where you don't get a choice of where you live, to introduce a group of individuals who are proud, brave, loyal, good Americans, but who favor a homosexual lifestyle, and put them in with heterosexuals who would prefer not to have somebody of the same sex find them sexually attractive, put them in close proximity and ask them to share the most private facilities together, the bedroom, the barracks, latrines, and showers. I think that this is a very difficult problem to give the military. I think it would be prejudicial to good order and discipline to try to integrate that in the current military structure. S. Rep. No. 103-112 at 283 (1993). Congress' review culminated in the passage of the Act. See National Defense Authorization Act for Fiscal Year 1994, Pub. L. No. 103-160, 107 Stat. 1547 § 571, codified at 10 U.S.C. § 654. The Act opens with a series of findings that echo General Powell's concerns: quot;military life is fundamentally different from civilian life;quot; quot;[s]uccess in combat requires military units that are characterized by high morale, good order and discipline, and unit cohesion;quot; and quot;the presence in the armed forces of persons who demonstrate a propensity or intent to engage in homosexual acts would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability.quot; See 10 U.S.C. § 654(a). - 5 -
  • 6. To avoid the risk to unit cohesion created by the continued service of those who are likely to engage in a homosexual act, the Act provides that members of the military are subject to separation from service where one of three findings is made: (1) the member has engaged or attempted to engage in a homosexual act;2 (2) the member has quot;state[d] that he or she is a homosexual or words to that effect;quot; or (3) the member has married or attempted to marry a person known to be of the same biological sex. Id. § 654(b). If a finding is made that a member of the military has engaged or attempted to engage in a homosexual act, the member may avoid separation by establishing that: (1) the conduct was a departure from the member's usual and customary behavior; (2) such conduct is unlikely to recur; (3) such conduct was not accomplished by use of force, coercion, or intimidation; (4) under the particular circumstances of the case, the member's continued presence in the military is consistent with the interests of the military in proper discipline, good order, and morale; and (5) the member does not have a propensity or intent to engage in a future homosexual act. Id. § 654(b)(1)(A)-(E). Similarly, a member found 2 Homosexual act means quot;any bodily contact, actively undertaken or passively permitted, between members of the same sex for the purpose of satisfying sexual desire and any bodily contact which a reasonable person would understand to demonstrate a propensity or intent to engage in [the homosexual act previously described].quot; 10 U.S.C. § 654 (f)(3). - 6 -
  • 7. to have stated, in effect, that he or she is homosexual, may avoid separation by demonstrating quot;that he or she is not a person who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in a homosexual act.quot; Id. § 654(b)(2). Pursuant to authority granted by the Act, the Department issued directives for executing separation proceedings. The directives recite the three reasons under the Act for separation and provide that a member's statement that he or she is a homosexual quot;creates a rebuttable presumption that the [member] engages in, attempts to engage in, intends to engage in, or has a propensity to engage in a homosexual act.quot; DOD Directive 1332.40 § E2.3 (1997). In considering whether a member has rebutted this presumption, the military considers: (1) whether the member has engaged in a homosexual act; (2) the member's credibility; (3) testimony from others about the member's past conduct; (4) the nature and circumstances of the member's statement; and (5) any other evidence relevant to whether the member is likely to engage in a homosexual act. Id. II. The Complaint and Motion to Dismiss The plaintiffs are twelve former members of the United States military who were separated from service under the Act. The plaintiffs' complaint asserted the following claims: (1) the Act violates the plaintiffs' right to substantive due process on its face and as applied; (2) the Act denies the plaintiffs equal - 7 -
  • 8. protection of the law on the basis of sexual orientation; and (3) the portion of the Act that triggers separation proceedings based on a member's statement that he or she is homosexual violates the right to freedom of speech. The government moved to dismiss the plaintiffs' complaint under Fed. R. Civ. P. 12(b)(6). The government also contended that the plaintiffs' due process and equal protection claims failed because the Act was subject only to rational basis review, and Congress' quot;unit cohesionquot; justification sufficed to sustain the law under this standard as a matter of law. It also argued that the evidentiary use of a member's statement that he or she is homosexual to prove that the member has engaged, intends to engage, or has a propensity to engage in a homosexual act does not abridge First Amendment rights. III. The District Court Opinion The district court began its analysis by dispatching with the plaintiffs' as-applied due process challenges. Cook v. Rumsfeld, 429 F. Supp. 2d 385 (D. Mass. 2006). The court ruled that, while the complaint asserted that the plaintiffs were bringing as-applied challenges, in fact, they pleaded no such claims: Although the complaint alleges that [the Act] is unconstitutional . . . as it has been particularly applied to each of [the plaintiffs], their legal reasoning . . . make[s] it clear that the constitutional defects they perceive inhere in any application - 8 -
  • 9. of the policy to homosexual service members, rather than in the particular way the policy might be (or might have been) applied in specific cases. In other words, none of the plaintiffs claim that the policy, if valid in general, was misapplied in his or her particular case to result in separation when a proper application of the policy would have allowed him or her to remain in service. Rather, their objections . . . are that the policy was applied, not how it was applied. This is classically a facial challenge to the statute, and their arguments will be evaluated with that understanding. Id. at 390 (emphases supplied). The district court then turned to the plaintiffs' facial challenges, beginning with the due process and equal protection claims. Id. at 391-407. The court believed that the success of these claims hinged primarily on the level of scrutiny that applies after Lawrence. Id. at 393. The court closely analyzed Lawrence and determined that the Supreme Court employed rational basis review to invalidate the convictions under the Texas law against homosexual sodomy. The court, thus, concluded that Lawrence did not alter the applicability of rational basis review, which had been applied in pre-Lawrence challenges to the Act. Id. at 395-96. The court then determined, in accord with pre-Lawrence authority, that Congress had set forth a rational reason for the statute -- to promote unit cohesion and discipline -- and therefore the facial due process and equal protection claims failed. Id. at 397-406. Finally, the district court rejected the plaintiffs' First Amendment challenge. Id. at 407-08. The court noted that - 9 -
  • 10. the Act does not make a member's statement that he or she is a homosexual a basis for separation; rather separation is mandated only where there has been homosexual conduct or a demonstration of a propensity or intent to engage in such conduct. Id. at 407. Based on this understanding, the court concluded that the Act merely provides for the quot;evidentiary usequot; of a member's statement regarding sexual orientation and that such use does not violate the First Amendment. Id. at 408. Having concluded that all of the plaintiffs' claims failed as a matter of law, the district court dismissed the complaint with prejudice and entered a final judgment. Id. at 410. The plaintiffs appealed. IV. Standard of Review We review a district court's grant of a motion to dismiss de novo, accepting the complaint's well-pleaded facts as true and indulging all reasonable inferences in the plaintiff's favor. SFW Arecibo, Ltd. v. Rodriguez, 415 F.3d 135, 138-39 (1st Cir. 2005). To survive a motion to dismiss, a complaint must allege a quot;plausible entitlement to relief.quot; Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1967 (2007); Rodriguez-Ortiz v. Margo Caribe, Inc., 490 F.3d 92, 95 (1st Cir. 2007). In reviewing a Rule 12(b)(6) dismissal, quot;we are not wedded to the [district] court's rationale and may affirm an order of dismissal on any basis made apparent - 10 -
  • 11. from the record.quot; McCloskey v. Mueller, 446 F.3d 262, 266 (1st Cir. 2006). V. Discussion On appeal, the plaintiffs challenge all aspects of the district court's ruling. They contend that the district court incorrectly dismissed their substantive due process and equal protection claims because the court misunderstood Lawrence to mandate a rational basis standard of review, rather than some form of heightened judicial scrutiny. In addition, the plaintiffs dispute the district court's ruling that they did not present as-applied due process and equal protection challenges. Finally, they posit that they sufficiently pleaded a First Amendment challenge to the portion of the Act that triggers separation proceeding based on a member's statement of sexual identity because such a statement is a form of protected speech that is punished by the Act. A. Due Process We agree with the parties and the district court that interpreting Lawrence is the critical first step in evaluating the plaintiffs' substantive due process claim. Prior to Lawrence, the courts of appeals, relying on the Supreme Court's holding in Bowers v. Hardwick, 478 U.S. 186 (1986) that homosexuals did not possess a substantive due process interest in engaging in sodomy, considered due process challenges to the Act under rational basis - 11 -
  • 12. review.3 See, e.g., Richenberg, 97 F.3d at 260-61; Thomasson, 80 F.3d at 928. But Lawrence overruled Bowers, so the post-Lawrence standard for reviewing a substantive due process challenge to the Act is unclear. Before addressing the district court's conclusion that the rational basis standard continues to apply, we review basic substantive due process principles. It has long been held that, despite their name, the due process clauses of the Fifth and Fourteenth Amendments quot;guarantee[] more than fair process.quot; Troxel v. Granville, 530 U.S. 57, 65 (2000). The substantive component of due process quot;provides heightened protection against government interference with certain fundamental rights and liberty interests.quot; Washington v. Glucksberg, 521 U.S. 702, 720 (1997). The Supreme Court acts with quot;caution and restraintquot; when classifying a particular liberty interest as triggering substantive due process protection, Moore v. City of E. Cleveland, 431 U.S. 494, 502 (1977), because classifying an interest as protected by due process to a quot;great extent, place[s a] matter outside the arena of public debate and legislative action.quot; Glucksberg, 521 U.S. at 720. The Court has recognized that the quot;Nation's history, legal 3 Where no protected liberty interest is implicated, substantive due process challenges are reviewed under the rational basis standard. See Medeiros v. Vincent, 431 F.3d 25, 33 (1st Cir. 2005). Under this standard, a statute passes constitutional muster so long as the law is rationally related to a legitimate governmental interest. Heller v. Doe, 509 U.S. 312, 320 (1993). - 12 -
  • 13. tradition, and practices provide the crucial guideposts for responsible decisionmakingquot; in this area. Id. at 721. But it has also recognized that while quot;history and tradition are the starting point,quot; they are quot;not in all cases the ending point of the substantive due process inquiry.quot; Lawrence, 539 U.S. at 572. In Glucksberg, the Supreme Court catalogued the following quot;liberty interestsquot; as quot;specially protectedquot; by the due process clause: the right to marry; to have children; to direct the education of one's children; to enjoy marital privacy; to use contraception; to maintain bodily integrity; to choose to have an abortion; and to refuse unwanted medical treatment. Glucksberg, 521 U.S. at 720. The question here is whether Lawrence added to this list an adult's right quot;to engage in consensual sexual intimacy in the home.quot; Lawrence, 539 U.S. at 567. In Lawrence, the Court considered a substantive due process challenge to two criminal convictions under a Texas statute criminalizing homosexual sodomy. Id. at 564. The petitioners were two males who had been arrested for engaging in a sexual act in one of their apartments. Id. at 563. The statute at issue provided that a quot;person commits an offense if he engages in deviate sexual
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