The Difference Between Can and Should:

*Able v. United States* and the Continuing Debate About Homosexual
Conduct in the Military

[Captain John A. Carr\*]{.smallcaps}

> *We have wasted enough precious time, money and talent trying to
> persecute and pretend. It's time to stop burying our heads in the sand
> and denying reality for the sake of politics. It's time to deal with
> this straight on and be done with it. It's time to get on with more
> important business.*
>
> \-- Barry M. Goldwater, Former Chairman of the Senate Armed Services
> Committee[^1]
>
> *Barry Goldwater may know a lot about flying military jets, but it's
> clear he knows little about homosexuality or about the threat to our
> military posed by placing gays in close quarters with heterosexual
> service members on submarines, on ships and in armored, artillery and
> infantry units.*
>
> \-- Gary L. Bauer, President of the Family Research Council[^2]

The military's homosexual discharge policy is undoubtedly controversial,
and it is fair to say Senator Barry Goldwater never cowered from
addressing controversial issues. He was a lieutenant in charge of an
all-black unit, founded the Arizona National Guard, chaired the Senate
Armed Services Committee,[^3] and co-sponsored the Goldwater-Nichols
Department of Defense Reorganization Act of 1986, which serves as the
foundation for the military's joint doctrine.[^4] While one may disagree
with his opinion, it may at least be cause for reflection when a man of
Senator Goldwater's demonstrated care and concern for this nation's
military force characterizes arguments underlying a personnel policy as
"just stupid."[^5]

The issue of homosexuals in the military came to the forefront of the
national debate during the presidential election of 1992. Then-Governor
Bill Clinton announced his intention to lift the ban if elected, and a
firestorm of controversy ensued.[^6] It was even rumored that two
members of the Joint Chiefs of Staff were prepared to resign if the ban
was lifted.[^7] Congress, however, enacted into law the policy that
emerged from the debate, and it is codified at 10 U.S.C §654. Due to the
various ways in which courts and commentators refer to §654, this
article will refer to §654 as "§654," "the Act," and "the Policy."
Unlike its predecessor, which was outlined in Department of Defense
Directives, the current discharge policy can only be amended by an Act
of Congress and will remain in effect regardless of who occupies the
position of Commander-in-Chief.

As enacted and absent certain exceptions that will be discussed later,
the homosexual discharge policy requires that a military member be
discharged if one of three findings is made. The first finding is that
the member has engaged in homosexual acts.[^8] This finding will be
referred to as the act prohibition. The second finding is that the
member has made homosexual statements.[^9] This finding will be referred
to as the statement presumption. Finally, a member will be discharged if
it is discovered that he or she has entered into or attempted to enter
into a same-sex marriage.[^10] This finding will be referred to as the
marriage prohibition.

The current policy has prompted a good deal of discussion within the
military community. It also has been the subject of much analysis within
the legal and academic communities. Numerous articles have been written
examining the vulnerability of the Act under the Equal Protection
Clause[^11] and the First Amendment.[^12] Additionally, at least four
Circuit Courts of Appeals have entertained constitutional challenges to,
and ultimately upheld, the policy.[^13]

Private and public discussions of the military's discharge policy
typically focus on two separate but related questions. The first
question is whether the military *can* constitutionally discharge
homosexual members or members who engage in or have a propensity to
engage in homosexual acts. The second question is whether the military
*should* discharge these individuals. Drawing upon the recent case of
*Able v. United States,*[^14] the purpose of this article is to provide
sound answers to both questions.

Part I of this article examines the regulation of homosexual acts,
speech, and marriages of military members. The applicable regulations
can be divided into two categories. The first category is comprised of
the criminal prohibitions contained in the Uniform Code of Military
Justice, which do not facially distinguish between homosexual and
heterosexual conduct. The second category is outlined in the current
administrative discharge policy. After reviewing its legislative
history, §654 will be outlined; to include the accompanying
congressional findings, the act prohibition, the statement presumption,
and the marriage prohibition. Additionally, the pertinent sections of
the Department of Defense Directives that implement §654 are detailed.

Part II explores an analogy to the permissible actions the government
may initiate against civilian employees based upon homosexual
statements, acts, and marriages. Four principles emerge from this
analysis. First, the government is permitted to take certain actions in
its capacity as employer that it is not permitted to take as the
sovereign. Second, the government is permitted to take into
consideration the impact of the employee's conduct on the efficiency and
morale of the office. Third, government agencies are not required to
wait until the disruptions to the office are fully manifested before
being permitted to take corrective action. Finally, courts typically
give great weight to the government's estimation of the potential
disruption the behavior in question will have on the efficient operation
of the office.

Part III of this article details the constitutional challenges brought
against the Act in *Able v. United States*.[^15] Although three other
Courts of Appeals have previously upheld §654 against constitutional
attack,[^16] the four opinions on the merits in *Able* provide an
excellent basis to discuss the policy's legal foundations and
implications. In its first opinion, the district court held that the
plaintiffs lacked standing to challenge the act prohibition of
§654(b)(1), but found that the statement presumption of §654(b)(2)
violated the free speech clause of the First Amendment. In its first
opinion, the Second Circuit Court of Appeals found that the plaintiffs
met the necessary standing requirements to challenge the act prohibition
and that the permissibility of the statement presumption was dependent
upon the constitutionality of the act prohibition. In its second
opinion, the district court held that the act prohibition was based upon
irrational prejudices and was unconstitutional under the equal
protection component of the Fifth Amendment. The statement presumption,
therefore, also violated the free speech clause of the First Amendment.
In its second opinion, the Second Circuit ruled that the act prohibition
passed constitutional muster under rational basis review and the
statements presumption was, therefore, also permissible.

Finally, Part IV seeks to answer two questions. The first question is
whether the military *can* constitutionally continue to discharge
members based upon the policy outlined in §654. Although the Second
Circuit held in *Able* that the military could take such action, this
section presents suggestions to clarify and strengthen the legal basis
for doing so. The examination proceeds in four parts. First, homosexual
conduct serves as a basis for discharge not because of any official
objection to the underlying conduct, but because of its impact on good
order and discipline. Second, the threat to good order and discipline is
a result of the "reaction" of military members who object to individuals
who engage in homosexual conduct. Third, similar to its ability to take
adverse actions against civilian employees who pose a threat to office
relationships and morale, the military is permitted to take action
against members who pose a threat to the good order and discipline of
the units. Finally, even though evidence may be garnered to attack the
belief that homosexual conduct is prejudicial to good order and
discipline, courts have exhibited a high degree of deference to the
estimation of the threat made by commanders, Congress, and the
President.[^17]

The second question is whether the military *should* continue to
discharge military members who engage in or have a propensity to engage
in homosexual conduct. The immediate answer is unequivocal. The military
should and must take whatever steps are necessary to maintain the
readiness of and unit cohesion within military units. It is noted,
however, that this goal can be achieved by either removing the
individuals who engage in homosexual conduct or prohibiting the members
who object to this behavior from acting upon their beliefs. Although it
may never be possible to change or alter the objecting members'
attitudes, it is suggested that the military take steps to prevent
personnel from acting upon their personal feelings or beliefs. Such an
antidiscrimination program could be added to the current toleration
efforts primarily administered by the base equal opportunity and
treatment office (referred to in the Air Force as Social Actions or,
more recently, Military Equal Opportunity). The program would display to
both the courts and various political forums a good faith effort on the
part of the military to reduce the identified threats to good order and
discipline posed by homosexual conduct.

**I. THE REGULATION OF HOMOSEXUAL ACTS, SPEECH, AND MARRIAGE WITHIN THE
MILITARY COMMUNITY**

The military regulates homosexual acts, speech, and marriages through
the application of two distinct but related processes. The first process
is comprised of the criminal prohibitions contained in the Uniform Code
of Military Justice (UCMJ).[^18] The UCMJ authorizes criminal punishment
for a variety of sexual practices, including sodomy, but does not
distinguish *per se* between homosexual and heterosexual behavior. The
second process is contained in the administrative discharge policy,
which emerged from the debate sparked by the presidential election of
1992 and is codified at 10 U.S.C. §654. The Act consists of fifteen
congressional findings concerning homosexuality and the military, and
provides that a member shall be separated if any one of three
determinations is made. A member is subject to administrative discharge
if it is found that he or she engaged in homosexual acts, made a
homosexual statement, or entered or attempted to enter into a same-sex
marriage. The policy is not directed toward a member's status as a
homosexual, but instead seeks to prevent military units from being
disrupted by the occurrence of homosexual conduct.

**A. Criminal Prohibitions**

The UCMJ authorizes criminal penalties for service members who engage in
certain sexual practices or conduct. The UCMJ applies to a military
member regardless of whether the conduct occurs on or off the
installation, on duty or off duty, and in public or in private.[^19]
Interestingly, however, the UCMJ does not *per se* categorize or
distinguish between homosexual and heterosexual conduct. In fact, the
terms "homosexual," "gay," and "lesbian" do not appear anywhere in the
*Manual for Courts-Martial*. Moreover, in recent litigation the
government admitted, "homosexuals are no more likely than heterosexuals
to violate the military code of conduct or other rules generally."[^20]

In both public and private discussions of sexual conduct, the criminal
prohibition of sodomy is perhaps the most controversial. Sodomy is
prohibited by Article 125, UCMJ, which provides:

> Any person subject to this chapter who engages in unnatural carnal
> copulation with another person of the same or opposite sex or with an
> animal is guilty of sodomy. Penetration, however slight, is sufficient
> to complete the offense.[^21]

The explanation accompanying the Article states that unnatural carnal
copulation includes both oral and anal sex,[^22] and this language has
been upheld against vagueness challenges.[^23] The United States Court
of Appeals for the Armed Forces has also refused to recognize a
constitutional zone of privacy for heterosexual, noncommercial, private
acts of oral sex between consenting adults.[^24] The Article states that
the maximum punishment for consensual sodomy between adults is a
dishonorable discharge, forfeiture of all pay and allowances, and
confinement for five years.[^25]

Many people may argue that their opposition to homosexuals stems from
the number of homosexuals who engage in sodomy. As previously stated,
however, the government's position in recent litigation is that
homosexuals are no more likely to engage in any violation of the
military code of conduct or other rules generally, to implicitly include
the UCMJ's prohibition of sodomy, than are heterosexuals.[^26] The
available research supports this position. For example, the data
indicates that 96 percent to 99 percent of gay and lesbian individuals
have engaged in oral sex.[^27] By comparison, it is reported that 90
percent to 93 percent of heterosexual individuals have engaged in oral
sex.[^28] Additionally, another study indicates that 73 percent of women
and 79 percent of men have engaged in passive oral sex, while 68 percent
of women and 77 percent of men have engaged in active oral sex.[^29] It
appears, therefore, that homosexuals and heterosexuals engage in sodomy
at relatively equal rates, although the frequency with which homosexuals
engage in sodomy may be slightly greater than that of heterosexuals. If
the military is representative of society, then the government
understandably concedes that homosexual service members are no more
likely to engage in sodomy than are heterosexual service members.[^30]

In addition to sodomy, the UCMJ prohibits many other forms of sexualized
conduct. Article 93, UCMJ, prohibits the oppression or maltreatment of
subordinates, including sexual harassment.[^31] Article 120, UCMJ,
punishes both carnal knowledge of a person under the age of 16 and
rape,[^32] the latter carrying a maximum punishment of death.[^33]
Conduct unbecoming an officer and a gentleman is punished under Article
133, UCMJ,[^34] and can take the form of either sexual conduct[^35] or
sexually explicit speech.[^36]

Finally, the general article, Article 134, UCMJ, prohibits "all
disorders and neglects to the prejudice of good order and discipline in
the armed forces,"[^37] any "conduct of a nature to bring discredit upon
the armed forces,"[^38] and "crimes and offenses not capital."[^39] The
specific paragraphs listed under the general article punish, among other
things, adultery,[^40] indecent assault,[^41] bigamy,[^42] wrongful
cohabitation,[^43] fraternization,[^44] indecent acts or liberties with
a child,[^45] indecent exposure,[^46] indecent language,[^47] and
indecent acts with another.[^48] Without minimizing the importance of
any of the listed UCMJ provisions, for the purposes of this article it
is simply important to note that they apply with equal force to same-sex
and opposite-sex conduct.

**B. Administrative Discharge Actions**

The military's administrative discharge policy[^49] was the subject of
intense debate during the presidential election of 1992. While taking
questions after a speech at the Kennedy School of Government at Harvard
in the fall of 1991, then-Governor Bill Clinton announced his intention
to lift the ban on homosexuals in the military if elected.[^50] He
explained that "the emphasis should always be on people's conduct, not
their status."[^51] When questioned about his position on the issue,
President George Bush reiterated his support for the ban.[^52] Gay
rights emerged as a major issue in the campaign and President Clinton
received strong support from the gay community, garnering 72 percent of
the homosexual vote.[^53]

While then-House Speaker Tom Foley announced his support for lifting of
the ban,[^54] concern about whether and when President-elect Clinton
would act brought the issue to the forefront again during the
post-election transition period.[^55] Reportedly, members of the Joint
Chiefs of Staff urged President Clinton to appoint a commission to study
the issue and cautioned that he would face serious repercussions within
the military if the policy was changed.[^56] It was even rumored that
two members of the Joint Chiefs were prepared to resign over the
issue.[^57] Announcing his intention to "move forward" on the issue,
President Clinton explained that he would consult with a host of experts
and interested parties, and:

> come up with an appropriate response that will focus sharply on the
> fact that we do have people who are homosexuals who served our country
> with distinction, who were kicked out of the military. . . . The issue
> ought to be conduct. Has anybody done anything which would disqualify
> them, whether it's \[the\] Tailhook scandal or something else.[^58]

Nevertheless, as the inauguration approached, Senate Armed Services
Committee Chairman Sam Nunn and Senate Minority Leader Robert Dole
"strongly urged" President Clinton to conduct a thorough study of the
issue.[^59] This concern was echoed by then-Chairman of the Joint Chiefs
of Staff General Colin Powell, who stated his continued belief "that the
policy we have been following is a sound one."[^60]

Following the inauguration in January 1993, the President announced a
two-phase plan.[^61] The first phase included an "instruction" from
President Clinton to Secretary of Defense Les Aspin to submit a draft
executive order by July 15, 1993. The order "would end the present
policy of the exclusion from military service solely on the basis of
sexual orientation and at the same time establish rigorous standards
regarding sexual conduct to be applied to all military personnel."[^62]
This instruction would stop the military from questioning recruits about
their sexual orientation, as well as initiating investigations or
discharging members under the former policy.[^63] The delay from January
1993 until July 15, 1993, was believed to be an attempt by President
Clinton to calm Senate conservatives who were prepared to write the
former policy into law, thereby preempting or overriding any executive
order.[^64] The President was keenly aware of the ramifications that
would follow from this type of congressional action.[^65] The second
phase of the plan would be the signing of the Executive Order lifting
the ban.[^66] As the President explained, the issue at this point had
become very narrow; namely, "whether a person, in the absence of any
other disqualifying conduct, can simply say that he or she is a
homosexual and stay in the service."[^67]

During the spring of 1993, both the House Armed Services Committee and
the Senate Armed Services Committee held hearings on the merits of the
former policy and the impact that any alteration may have upon military
readiness. Testimony was elicited from high-level officials such as
Secretary of Defense Aspin, Chairman of the Joint Chiefs of Staff
General Powell, and retired General Norman Schwarzkopf.[^68] As the July
15th deadline approached, it became clear that Congress intended to
codify the emerging policy into law.

On July 19, 1993, President Clinton announced his new policy dealing
with the issue of homosexuals in the military.[^69] Secretary Aspin was
ordered to issue a four-part directive. The first part of the directive
would require that "service men and women will be judged based upon
conduct, not their sexual orientation."[^70] The second part, therefore,
would prevent recruits from being asked about their sexual orientation
at enlistment. The third part would continue by explaining that a
member's statement that:

> he or she is a homosexual would create a rebuttable presumption that
> he or she intends to engage in prohibited conduct, but the service
> member will be given an opportunity to refute that presumption, in
> other words, to demonstrate that he or she intends to live by the
> rules of conduct that apply in the military service.[^71]

Finally, the directive would mandate that all provisions of the UCMJ
were to be even-handedly enforced against both heterosexuals and
homosexuals. Maintaining that "the time has come for us to move
forward," the President explained that he "strongly believe\[d\] that
our military, like our society, needs the talents of every person who
wants to make a contribution and who is ready to live by the
rules."[^72]

For reasons that will not be explored in this article, Congress enacted
the current homosexual discharge policy as §571 of the National Defense
Authorization Act for Fiscal Year 1994,[^73] codified at 10 U.S.C. §654.
The Act begins with a recitation of fifteen congressional findings.
These findings are followed by the actual discharge policy.

*1. Congressional Findings*

10 U.S.C. §654(a) consists of fifteen congressional findings that
support the current administrative discharge policy. Findings one
through thirteen review the separation of authority over the military,
the unique nature of the military community as a separate society, and
the pervasive regulation of

a member's conduct 24-hours-a-day, anywhere in the world.[^74] Findings
fourteen and fifteen support the crux of the policy, and state that:

> \(14\) The armed forces must maintain personnel policies that exclude
> persons whose presence in the armed forces would create an
> unacceptable risk to the armed forces\' high standards of morale, good
> order and discipline, and unit cohesion that are the essence of
> military capability.
>
> \(15\) The presence in the armed forces of persons who demonstrate a
> propensity or intent to engage in homosexual acts would create an
> unacceptable risk to the high standards of morale, good order and
> discipline, and unit cohesion that are the essence of military
> capability.[^75]

With its focus on conduct and not status, Congress clearly articulated
its belief that the presence of individuals who demonstrate a propensity
or intent to engage in homosexual acts creates an unacceptable risk to
morale, good order and discipline, and unit cohesion. As will be
explained in the next section, however, the Act goes on to include
within the definition of homosexual a person who has a propensity to
engage in or intends to engage in homosexual acts.[^76] Conduct and
status, therefore, are intertwined to the extent that a person's conduct
determines his status and his status indicates his conduct. Put
differently, the conduct (homosexual acts) defines the class
(homosexuals).

*2. The Act Prohibition of §654(b)(1)*

Section 654(b)(1) outlines the first of three circumstances that mandate
the separation of a military member. As explained by the Act, a member
"shall" be discharged if "the member has engaged in, attempted to engage
in, or solicited another to engage in a homosexual act or acts."[^77] A
homosexual act is defined as "any bodily contact, actively undertaken or
passively permitted, between members of the same sex for the purpose of
satisfying sexual desires" and "any bodily contact which a reasonable
person would understand to demonstrate a propensity or intent to engage
in \[such behavior\]."[^78] An exception that permits retention of a
member who has engaged in homosexual acts requires that the member prove
that:

> \(A\) such conduct is a departure from the member\'s usual and
> customary behavior;
>
> \(B\) such conduct, under all the circumstances, is unlikely to recur;
>
> \(C\) such conduct was not accomplished by use of force, coercion, or
> intimidation;
>
> \(D\) under the particular circumstances of the case, the member\'s
> continued presence in the armed forces is consistent with the
> interests of the armed forces in proper discipline, good order, and
> morale; and
>
> \(E\) the member does not have a propensity or intent to engage in
> homosexual acts.[^79]

A homosexual is defined as "a person, regardless of sex, who engages in,
attempts to engage in, has a propensity to engage in, or intends to
engage in homosexual acts, and includes the terms 'gay' and
'lesbian.'"[^80] A "bisexual" is defined as "a person who engages in,
attempts to engage in, has a propensity to engage in, or intends to
engage in homosexual and heterosexual acts."[^81] As applied to the last
finding, it appears that the member is required to demonstrate that he
or she is not included in the statutory definition of a homosexual or
bisexual in order to be retained.

*3. The Statement Presumption of §654(b)(2)*

In addition to the prohibition on homosexual acts, the Act also contains
a provision addressing homosexual statements. A member shall be
discharged if "the member has stated that he or she is a homosexual or
bisexual, or words to that effect,"[^82] unless "the member has
demonstrated that he or she is not a person who engages in, attempts to
engage in, has a propensity to engage in, or intends to engage in
homosexual acts."[^83] In order to rebut the presumption, it appears
that the member must also demonstrate that he or she is not included in
the statutory definition of a homosexual or bisexual in order to be
retained.

*4. The Marriage Prohibition of §654(b)(3)*

Finally, the Act also states that a member shall be separated if he or
she "has married or attempted to marry a person known to be of the same
biological sex."[^84] The Act does not specify what types of ceremonies
(for example, state-sanctioned marriages, religious celebrations, or
informal commitments) are sufficient to trigger its prohibition.

*5. Implementing Department of Defense Directives*

A few specific provisions of the implementing Department of Defense
Directives are especially relevant for this examination. Department of
Defense Directive 1304.26, *Qualification Standards for Enlistment,
Appointment, and Induction*,[^85] prohibits recruits from being "asked
or required to reveal whether they have engaged in homosexual conduct,
unless independent evidence is received indicating that an applicant
engaged in such conduct or unless the applicant volunteers a statement
that he or she is a homosexual or bisexual, or words to that
effect."[^86] DODD 1304.26 specifically states, however, that rejection
is not required if it is determined that the member engaged in such
conduct or made such statements in order to avoid military service and
rejection is not in the best interest of the service.[^87]

DODD 1332.14, *Enlisted Administrative Separations*,[^88] also provides
further guidance in implementing the policy. The Directive explains that
any relevant evidence may be considered in determining whether a finding
has properly been rebutted, including: whether the member has engaged in
homosexual acts, the member\'s credibility, testimony from others about
the member\'s past conduct, character, and credibility, and the nature
and circumstances of the member\'s statement.[^89] A member's discharge
characterization is to be determined under the generally applicable
guidelines. If the discharge is based solely on homosexual conduct,
however, a characterization of Under Other Than Honorable Conditions may
be issued only if otherwise warranted and certain aggravating factors
are present.[^90] Finally, the Directive notes that the discharge policy
does not prohibit trial by court-martial in the appropriate case.[^91]

**II. THE PERMISSIBLE ACTIONS THAT MAY BE TAKEN**

**AGAINST GOVERNMENT EMPLOYEES BASED UPON**

**STATEMENTS, ACTS, AND MARRIAGES**

Before turning to an examination of the recent challenge brought against
10 U.S.C. §654 in *Able v. United States*, it is useful to review the
permissible restrictions and personnel actions that the government may
take with regard to the statements, acts, and marriage of civilian
government employees. Four principles will emerge from the analysis of
the applicable case law. First, civilian government employees do not
enjoy the same constitutional protections as civilians who are not
employed by the government. Put differently, the government is permitted
to take certain employment actions as an employer that it would not be
permitted to take as the sovereign. Second, the government may take into
account the impact of the employee's action on the efficiency and morale
of the office. Courts appear to limit their inquiry to *whether* the
office is disrupted by the behavior, not whether the office *should* be
disrupted by the employee's actions. Third, the government is not
required to wait until the disruptions to office relationships and
morale are manifest before taking action against the employee. Finally,
the government's estimation of the potential disruption to the efficient
operation of the office is afforded great deference by the courts.

A few words of caution are appropriate at this time. Although not all of
the cases discussed below directly address homosexual conduct, the legal
principles discerned appear to be applicable to the issue. Additionally,
it should be noted that in May 1998, President Clinton signed Executive
Order 13087, which added sexual orientation to the list of
characteristics that may not form the basis for discrimination by the
Federal Government.[^92] The original list was set forth in a previous
order.[^93] As President Clinton explained, his action announced, for
the first time in an Executive Order, "a uniform policy for the Federal
Government to prohibit discrimination based upon sexual orientation in
the Federal civilian workforce."[^94] The order, however, "states
administration policy but does not and cannot create any new enforcement
rights (such as the ability to proceed before the Equal Employment
Opportunity Commission)," which can only be granted by Congress.[^95] As
the President later reiterated, the order "does not authorize
affirmative action, or preferences, or special rights for anyone."[^96]
Although a determination of the effect of this Executive Order is beyond
the scope of this article, the purpose of the analysis that follows is
to outline the actions that are constitutionally permissible, even if
the government has chosen not to take them.

**A. Actions Based Upon the**

**Speech of Government Employees**

While the government is limited by the full set of First Amendment
prohibitions when governing its citizens, it enjoys greater latitude in
preserving the efficiency of its service from threats posed by the
speech of civilian employees,[^97] including federal civil servants[^98]
and independent contractors.[^99] In *Pickering v. Board of
Education*,[^100] the Supreme Court announced a two-part balancing test
to determine whether a government employee's speech is protected by the
First Amendment, and therefore, cannot be the basis for adverse
administrative action. First, the speech must address a matter of public
concern. If it does, then a court must determine whether the employee's
interest as a citizen "in commenting on matters of public concern" is
outweighed by the government's interest as employer "in promoting the
efficiency of the public services it performs through its
employees."[^101] If the employee's rights outweigh the agency's
interests, then no administrative action may be taken against the
individual.

In *Pickering*, a teacher was dismissed after sending a letter to the
local newspaper concerning a proposed tax increase.[^102] The Court
concluded that the letter addressed a matter of public concern.[^103]
Weighing in Pickering's favor was the fact that the speech did not
endanger "either discipline by immediate superiors or harmony among
coworkers,"[^104] and did not impact the actual operation of the
school.[^105] Additionally, the school failed to show that the speech
"in any way either impeded the teacher's proper performance of his daily
duties in the classroom or to have interfered with the regular operation
of the schools generally."[^106] Therefore, Pickering's speech was
protected by the First Amendment and could not be the basis for his
dismissal.

Another leading case involving the free speech rights of civilian
government employees is *Rankin v. McPherson*.[^107] McPherson was
employed in a clerical capacity in a county constable office. After
hearing of the assassination attempt on President Reagan and in the
course of discussing the administration's policies, she remarked to a
co-worker "if they go for him again, I hope they get him."[^108] The
remark was overheard by a fellow co-worker and reported to Constable
Rankin. After confirming that she did in fact make the comment, Rankin
fired her.[^109]

The Supreme Court found that the speech was protected by the First
Amendment. First, considering that it was made during a conversation of
the President's policies, the speech dealt with a matter of public
concern.[^110] The Court noted that neither the inappropriate nor
controversial nature of the statement was relevant to this determination
because debate on public issues should be "uninhibited, robust, and
wide-open."[^111] Second, the Court concluded that McPherson's free
speech interests outweighed Constable Rankin's interests in discharging
her. There was no evidence that the speech interfered with the
efficiency of the office, impaired employee relationships, or
discredited the office since the statement was not conveyed to the
public.[^112]

The Supreme Court found that a government employee's speech was not
protected in *Connick v. Myers*.[^113] Employed as an Assistant District
Attorney, Myers circulated a questionnaire within the office after
learning that she was to be transferred.[^114] The District Attorney
learned of Myers's survey, considered it an act of insubordination, and
fired her.[^115] Applying the *Pickering* test, the Court found that
only one question in the survey, which the Court characterized as "an
employee grievance concerning internal office policy,"[^116] addressed a
matter of public concern.[^117] Furthermore, Myers's interest did not
"require that Connick tolerate action which he reasonably believed would
disrupt the office, undermine his authority, and destroy the close
working relationships."[^118] Speaking to the importance of the office
relationships, the Court noted that:

> the Government, as an employer, must have wide discretion and control
> over the management of its personnel and internal affairs. This
> includes the prerogative to remove employees whose conduct hinders
> efficient operation and to do so with dispatch. Prolonged retention of
> a disruptive or otherwise unsatisfactory employee can adversely affect
> discipline and morale in the workplace, foster disharmony, and
> ultimately impair the efficiency of an office or agency.[^119]

Additionally, the internal working relationships within the office are
of such importance that the government is entitled to substantial
deference and may act before the disruption actually occurs. As the
Court explained,

> \[w\]hen close working relationships are essential to fulfilling
> public responsibilities, a wide degree of deference to the employer's
> judgement is appropriate. Furthermore, we do not see the necessity for
> an employer to allow events to unfold to the extent that the
> disruption of the office and the destruction of working relationships
> is manifest before taking action.[^120]

Consequently, when a government employee speaks about a matter of
personal interest, "absent the most unusual circumstances, a federal
court is not the appropriate forum in which to review the wisdom of a
personnel decision taken by a public agency allegedly in reaction to the
employee's behavior."[^121]

The *Pickering* test is also used to determine the permissible
government restrictions on the speech of federal civil servants.[^122]
For example, in *Sigman v. Department of the Air Force*, the Merit
System Protection Board upheld the Air Force's removal of a GS-05 for
unauthorized leave and three specifications of disrespectful,
disruptive, and intimidating behavior.[^123] The Board found her speech
did not address a matter of public concern because a memo she circulated
was "personal, highly critical of \[her\] supervisors, and concern\[ed\]
internal matters that are not related to the public."[^124]
Additionally, the Board also concluded that the agency's interests in
promoting the efficiency of public service that it performs outweighed
her free speech interests. The memorandum was distributed to all offices
in the division and "had a very disruptive effect."[^125] The employee's
supervisor also felt "intimidated and frightened by the memo, which
contained abusive and insulting language and made references to bodily
harm."[^126] Accordingly, the speech was not protected by the First
Amendment and could serve as the basis for administrative action.

**B. Actions Based Upon the Homosexual**

**Acts of Government Employees**

Congress has provided that the government may dismiss a federal
employee, *inter alia*, for cause if it "will promote the efficiency of
the service."[^127] Upon the proper showing, such cause may exist when
the employee has engaged in homosexual acts. *Norton v. Macy*,[^128]
decided in 1969, is the leading case that addresses when dismissal for
efficiency of the service is permitted based upon homosexual conduct.
Norton was a GS-14 employee of the National Aeronautics and Space
Administration (NASA).[^129] Because he was veterans preference
eligible, he could only be dismissed for cause. After a long and
somewhat unusual investigation for an alleged off-duty homosexual
advance,[^130] NASA dismissed Norton based upon "immoral conduct" and
"for possessing personality traits which render him 'unsuitable for
further Government employment.'"[^131]

The Court of Appeals for the District of Columbia found that Norton had
been unlawfully discharged.[^132] The court did not dispute that NASA
considered Norton's behavior to be immoral. Standing alone, however,
this determination did not justify Norton's dismissal. As the court
explained:

> \[T\]he Civil Service Commission has neither the expertise nor the
> requisite anointment to make or enforce absolute moral judgments, and
> we do not understand that it purports to do so. Its jurisdiction is at
> least confined to things which are Caesar's, and its avowed standard
> of "immorality" is no more than "the prevailing mores of our
> society."[^133]

Whatever NASA's ability to categorize the behavior as immoral, it was
not "an appropriate function of the federal bureaucracy to enforce the
majority's conventional codes of conduct in the private lives of its
employees."[^134]

Consequently, the court concluded that "a finding that an employee has
done something immoral or indecent could support a dismissal without
further inquiry only if all immoral or indecent acts of an employee have
some ascertainable deleterious effect on the efficiency of the
service."[^135] Whether NASA could properly dismiss Norton, therefore,
depended upon the effects on NASA of what he had done or what he was
likely to do. The court realized that an employee's homosexual conduct
could impact the efficiency of the service in a variety of ways. It may
be cause for fear of blackmail or other security risk, as well as
evidence of an unstable personality that is unsuited for certain types
of work.[^136] Additionally, "\[i\]f an employee makes offensive
overtures while on the job, or if his conduct is notorious, the
reactions of other employees and of the public with whom he comes in
contact in the performance of his official functions may be taken into
account."[^137]

*Norton* stands for the proposition that the government must be able to
demonstrate some nexus, based on more than mere conjecture, between the
employee's conduct and the efficiency of the service in order to justify
dismissal for the efficiency of the service. Like the rationale
supporting its ability to take action against an employee based upon his
or her speech, however, the government is permitted to consider the
reaction of other employees and the public. The relevant inquiry
according to the court was not *why* the co-workers were disrupted or
upset, only if they *were* or *would be* disrupted or upset. In order
words, if Norton's co-workers were so upset by his homosexual advances
that it affected the efficiency of the office, it appears that NASA
could have lawfully dismissed Norton on this basis.

**C. Actions Based Upon the Homosexual**

**Marriages of Government Employees**

Although the required nexus between homosexual conduct and the
efficiency of the office was not found in *Norton*, a sufficient link
was present in the recent homosexual marriage case of *Shahar v.
Bowers.*[^138] In 1990, Shahar interned with the Georgia's Attorney
General Office during her second summer of law school. She was offered a
position as a staff attorney with the Attorney General's office
effective upon her expected graduation.[^139] During that summer, Shahar
announced her intention to marry her lesbian partner in a religious
ceremony. She sent out invitations to approximately 250 people,
including two employees of the office. In November 1990, Shahar filled
out her employment application, indicating that she was engaged and
listing her partner's name.[^140] In June 1991, the Senior Assistant
Attorney General learned of Shahar's planned wedding, which was to take
place later that month in a public park in South Carolina.

Upon returning from a summer trip, the Attorney General was briefed on
the situation.[^141] After much discussion with senior attorney's in the
office, the Attorney General decided to withdraw Shahar's employment
offer. This withdrawal was done in writing in July 1991. Shahar filed
suit, alleging that the Attorney General had violated her free exercise
and free association rights, as well as her rights to substantive due
process and equal protection.[^142]

The district court found that Shahar's rights had not been violated, and
the Eleventh Circuit Court of Appeals agreed. After stressing that the
case involved the government acting as employer and not as
sovereign,[^143] the Eleventh Circuit adopted the *Pickering* test for
free speech to evaluate the permissibility of the withdrawal of the job
offer.[^144] The court explained that the position of staff attorney was
a policy position requiring great trust and confidence on behalf of the
employer. In light of the recent controversy surrounding Georgia's
sodomy statute,[^145] the Attorney General concluded that Shahar's
decision to marry another woman and change her name had a "realistic
likelihood" of affecting both her credibility and that of the
office.[^146] It would have also interfered with her ability to handle
this type of controversial matter, the office's ability to enforce the
sodomy statute, and may have created "other difficulties within the
Department which would be likely to harm the public perception of the
Department."[^147] Additionally, Shahar's failure to appreciate these
difficulties caused the Attorney General to lose faith in her
judgment.[^148] Finally, the court agreed that the Attorney General was
rightly concerned about the internal consequences her marriage would
have on his staff, including a loss of morale and cohesion.[^149]
Because these reasonable concerns of the Attorney General outweighed
Shahar's competing interests, the court concluded that the withdrawal of
the job offer was permissible.

The important and recurring point of the *Shahar* ruling is that, if a
sufficient nexus is established between the behavior at issue and the
efficiency of the office, then the government as an employer is
permitted to take certain factors into consideration that could not
otherwise be considered. The most pertinent factor for this examination
is that the government may justify an employment decision based upon the
reaction of the office; or put differently, upon the impact of the
behavior on office morale and cohesion. Again, the court did not
indicate its intention to determine whether the office *should* be
disrupted by Shahar's marriage, only that the planned marriage *did* or
*would* impact the efficient operation of the office. With this
principle in mind, the challenge to the military's homosexual discharge
policy brought in *Able v. United States* will now be examined.

**III. THE CASE OF *ABLE V. UNITED STATES***

Although three other Courts of Appeals previously upheld §654 against
constitutional attack,[^150] the unique history of *Able v. United
States*[^151] provides an excellent basis to discuss the legal
foundations and implications of the Act. The case produced four opinions
on the merits, which examined the relationship between the act
prohibition and the statement presumption. *Able* began after five
military members and one member of the United States Coast Guard[^152]
were discharged by their respective services after stating that they
were homosexuals.[^153] The discharges had been processed under the
statement presumption of §654(b)(2). The plaintiffs filed suit in the
Eastern District of New York seeking an order declaring that §654 and
the implementing directives were unconstitutional. Attacking the Act
from a variety of positions, the plaintiffs asserted that §654 violated
their rights to expressive and intimate association and also the
constitutional prohibitions concerning vagueness and overbreadth. In
addition, they claimed the act prohibition of §654(b)(1) and the
statement presumption of §654(b)(2) violated their right to free speech
and equal protection, and that the marriage prohibition of §654(b)(3)
violated their equal protection rights.[^154] Finally, they asked the
court to enjoin the government from enforcing the Act and the
implementing directives.[^155]

After it preliminarily enjoined the government from enforcing the Act
and the directives,[^156] the district court granted the government's
motion to dismiss the claims based upon intimate association, vagueness,
and overbreadth.[^157] While this motion was pending, the government
appealed the preliminary injunction to the Second Circuit Court of
Appeals. The appellate court ruled that the district court had not
applied the proper standard and remanded the case.[^158] It also ordered
the district court to consolidate the preliminary injunction hearing
with a trial on the merits for the permanent injunction.[^159] On March
6, 1995, the district court ruled that the plaintiffs lacked standing to
claim that §654 violated their rights to expressive association, that
the act prohibition of §654(b)(1) violated their right to free speech
and equal protection, and that the marriage prohibition of §654(b)(3)
violated their equal protection rights.[^160] The district court tried
the merits of the remainder of the plaintiff's claim later that
month.[^161]

**A. The First Opinion of the District Court**

The sole remaining issue before the district court was the
constitutionality of the statement presumption of §654(b)(2). After
recounting the history and actual wording of the statement presumption,
the court examined the legislative purpose of the subsection. The court
concluded that the statement "I am a homosexual" or "I have a homosexual
propensity" is not prohibited because the statement is itself harmful.
Instead, it is prohibited because it can be inferred that the speaker
will engage in harmful conduct, "namely, commit 'homosexual acts'
injurious to 'morale, good order and discipline, and unit
cohesion.'"[^162] Having arrived at this conclusion, the court turned to
an analysis of the statement presumption in light of the First
Amendment.

The court noted that the statements made by the plaintiffs identified
their status as homosexuals and that the First Amendment protects speech
that articulates "the premise of individual dignity and choice upon
which our political system rests."[^163] The court reasoned, therefore,
that the speech is protected from content-based restrictions. Aware that
courts typically grant the military substantial deference,[^164] the
court nevertheless explained that this deference does not equate to an
abdication of their responsibility to determine the constitutionality of
military decisions.[^165] Guided by this duty, the court outlined the
standard that would guide its analysis of the permissibility of the
statement presumption. In the context of the military community, a
content-based speech restriction is constitutional only if it is "no
more than \[what is\] reasonably necessary to protect \[a\] substantial
government interest."[^166]

The court explained that the government's primary argument in support of
the statement presumption was that it was directed solely at the
prohibited acts and created no more than a rebuttable presumption that
one would engage in such acts. After noting that the government was no
longer arguing that homosexuals were mentally ill or suffering from a
physical defect, the court recounted the testimony of numerous
high-level military officers attesting to the honorable service of
homosexual members.[^167] Since closeted homosexuals were allowed to
enter and serve in the military, the government had not determined that
homosexuals "by their nature" posed "an uncontrollable risk that they
would commit acts *inherently dangerous* to morale, good order and
discipline, and unit cohesion."[^168]

According to the court, the government imposed the speech restriction
because it needed to rely upon the orientation statement as evidence of
a likelihood to engage in homosexual acts.[^169] The court found that it
was an "extreme measure" to "presume from a person's status that he or
she will commit undesirable acts."[^170] After recalling the lessons of
Hitler's status-based attacks, the court drew upon Supreme Court
precedent. Citing *Robinson v. California*,[^171] the court noted that
subjecting a narcotics addict to a misdemeanor prosecution based upon
the inference that he had possessed or would possess drugs in the future
constitutes cruel and unusual punishment.[^172] Noting that Robinson's
narcotics addiction was self-acquired, the court wondered how much worse
it was "to infer the commission of acts from one's homosexual status,
which may well be acquired at birth or in early childhood."[^173]

It appeared to the court that the government was aware that the
judiciary would invalidate a discharge policy based solely on homosexual
status or orientation. Counsel to the Department of Defense had said as
much during the Senate hearings.[^174] The resultant compromise,
therefore, was a policy that mandates discharge based upon conduct,
where conduct is defined to include homosexual statements. The mere
acknowledgement of homosexual status is "transmogrified into an
admission of *misconduct*, and *misconduct* that the speaker has the
practically insurmountable burden in disproving."[^175]

The court was not persuaded there was a meaningful distinction between
homosexual "orientation" and homosexual "propensity" as defined by the
directives. Homosexual orientation is defined as the quality of having
an "abstract sexual preference for members of the same sex."[^176]
Homosexual propensity is defined "as the quality of having such a
preference that presumably is sufficiently concrete to indicate a
'likelihood' that the preference will be acted upon."[^177] Describing
the treatment of the terms to be Orwellian, the court noted that neither
the Act nor the directives explain how to differentiate between the two.
According to Senate testimony, "any distinction between the two is
'hypothetical.'"[^178] Since homosexual statements are enough to
initiate discharge, a member who does no more than express his or her
homosexual orientation must somehow show that he or she does not have a
propensity to engage in homosexual acts. Neither the Act nor the
directives suggest, however, "how one who is born with an innate
tendency, an 'orientation' or a 'propensity,' to commit a homosexual act
can prove that he or she does not have such orientation or
propensity."[^179] Forcing the member to rebut this presumption seemed
to the court "a rather draconian consequence of merely admitting to an
orientation that Congress has determined to be innocuous."[^180]

The court was unimpressed with the three "isolated instances" in which
Navy members had been able to meet the burden of rebutting the
presumption, describing them as aberrations.[^181] Instead, the court
stated the "plain fact" is that the statement presumption constitutes a
content-based speech regulation.[^182] Members with a homosexual
orientation are subject to discharge "regardless of whether they have
engaged in or demonstrated a likelihood of engaging in prohibited acts,
and thus reaches speech that does not indicate acts."[^183] The court
went on to conclude that "under the First Amendment a mere statement of
homosexual orientation is not sufficient proof of intent to commit acts
as to justify the initiation of discharge proceedings."[^184]

The court next addressed the government's alternative theory to justify
the Act based upon unit cohesion.[^185] In short, homosexuals were
silenced in order to ease the discomfort of heterosexual members.
Because a forthright policy of discharging homosexuals would be
constitutionally suspect, the Act created a charade that the concern was
really over homosexual acts, not status.[^186] The court quickly pointed
out, however, that the Act nowhere mentions heterosexuals or the effect
that heterosexual reactions to homosexual acts may have on unit
cohesion.[^187] Despite this congressional omission, the court was
prepared to analyze the Act as if such a finding were included.[^188]

There was much anecdotal evidence presented during the legislative
hearings to support this proposition. The bulk of the anecdotal
testimony "described how heterosexuals would be prejudiced against
homosexuals because their 'lifestyles' or 'values' differed from the
'traditional' moral or religious 'values' of heterosexuals."[^189] For
example, General Schwarzkopf told the Senate Committee that "\[t\]he
introduction of an open homosexual into a small unit immediately
polarizes that unit."[^190] General Powell stated that, historically,
homosexuals who remained closeted had been successful members but that
"the presence of open homosexuality would have an unacceptable
detrimental and disruptive impact on the cohesion, morale and esprit of
the Armed Forces."[^191]

In the court's eyes, the animosity that heterosexuals displayed towards
homosexuals is "by its terms based upon irrational prejudices."[^192]
The court found the government's two counterarguments unconvincing.
First, the policy could not possibly accommodate the privacy interests
of service members.[^193] The barracks and latrines are no more private
after the Act was passed than before. As for the showers, closeted
homosexuals may still peek at the naked bodies of heterosexuals. In the
eyes of the court, the policy would only create more tension because
there will be a "generalized suspicion of everyone in the showers,"
hardly conducive to increasing unit cohesion.[^194]

The second argument, that the policy is aimed at easing sexual tension,
was no more logical. As explained to the Senate Committee, the argument
is that homosexuals will act on their tendencies and behave in "improper
ways" that will give rise to sexual tension in military units.[^195] If
this prediction were accurate, the court explained that forcing
homosexuals to remain closeted would not ease sexual tensions.
Additionally, the court reasoned that any inappropriate behavior could
be dealt with under the UCMJ[^196]

The government's arguments, of course, were based upon the assumption
that the presence of open homosexuals in the military would be
disruptive to the units. Government studies, however, did not support
this position. A RAND study commissioned by the Department of Defense
concluded that "although some disruptions might result from having
acknowledged homosexuals serving in the military, the experience of
analogous organizations . . . suggest that any increase is likely to be
quite small."[^197] The study explained that many foreign countries that
had allowed homosexuals to serve openly did not report serious
problems.[^198] Noting that similar arguments were raised during the
racial integration of the military, the RAND study also reported that
integration did not destroy unit cohesion and military effectiveness
when integration was finally ordered.[^199] Furthermore, a 1992 General
Accounting Office report examined analogous organizations that have
permitted open homosexuals to serve and "have generally not reported
adverse impacts."[^200]

Even though Congress could have explicitly found the reactions of
heterosexual members would be more disruptive than that encountered by
foreign nations, the court still doubted that the reaction would be
significant. Unit cohesion depends on trust, and the court drew upon
common sense to suggest that a policy based on secrecy would only
undermine trust.[^201] Not only is the policy deceptive, but it also
fosters dishonesty.[^202] When a closeted homosexual is asked in passing
by other members in the unit whether he is a homosexual, "the pressure
to lie is obvious."[^203] The court explained that it had been presented
with no evidence as to whether the effect of secrecy and deception was
more disruptive to unit cohesion than a policy based upon openness and
honesty. Perhaps more importantly, though, both homosexuals and
heterosexuals "would be entitled to think it demeaning and unworthy of a
great nation to base a policy on pretense rather than on truth."[^204]
It might appear less than honorable to invite a homosexual to enter the
military only to discharge him because his sexual orientation has been
revealed by something he said, and finally to pretend that the discharge
is based on something other than orientation.[^205]

Returning to the Constitution, the court explained that even if the
First Amendment permitted the silencing of homosexuals because of the
effect on some heterosexuals, "it would surely require a legislative
finding that the consequences of disclosure would be infinitely more
serious than anything revealed in the record before Congress."[^206]
Echoing testimony from the Senate Committee hearings, the court
recounted the admission of two high-level military officers that the
military would still be able to fulfill its mission.[^207] The court
concluded its free speech analysis with the observation that "the
Supreme Court has held that the First Amendment will not countenance the
proscription of the expression of an idea because others find that idea
repugnant."[^208] Rather than drawing upon government employment cases,
the district court relied upon First Amendment principles applicable to
government acting in its capacity as sovereign. Citing a string of
Supreme Court precedent,[^209] the court stated that "\[i\]f there is a
bedrock principle underlying the First Amendment, it is that the
government may not prohibit the expression of an idea simply because
society finds the idea itself offensive or disagreeable."[^210]
Consequently, the court held that the statement presumption of
§654(b)(2) and its implementing directives violate the First Amendment's
freedom of speech clause.

Having invalidated the statement presumption under the First Amendment,
the court also found that §654(b)(2) violated the Equal Protection
clause of the Fourteenth Amendment as made applicable to the federal
government by the Fifth Amendment's Due Process clause.[^211] Because
only members with a heterosexual orientation were permitted to exercise
their right to free speech regarding this status, the government was
forced to show that the policy is tailored to serve a substantial
government interest.[^212] Even assuming that unit cohesion would be
harmed by the presence of open homosexuals, the court found that the
discriminatory policy was impermissible. Again relying upon Supreme
Court precedent, the court noted that "\[p\]ublic officials sworn to
uphold the Constitution may not avoid a constitutional duty by bowing to
the hypothetical effects of private . . . prejudice that they assume to
be both widely and deeply held."[^213] Consequently, the statement
presumption of §645(b)(2) was also found to violate the Equal Protection
clause of the Fifth Amendment.

**B. The First Opinion of the Second Circuit**

On appeal before the Court of Appeals for the Second Circuit, the
government argued that the district court had failed to accord Congress
and the military the proper deference regarding eligibility requirements
and that §654(b)(2) was constitutional when judged by the proper
standard. Furthermore, the government argued that the plaintiff's claim
was barred by their failure to exhaust their administrative
remedies.[^214] Alternatively, the plaintiffs argued that they did have
standing to challenge the act prohibition of §654(b)(1) and that the
court must address the constitutionality of the act prohibition before
it can determine the permissibility of the statement presumption of
§654(b)(2). Under this theory, the constitutionality of the statement
presumption is contingent on the validity of the act prohibition.

After reviewing the Act and deciding that the plaintiffs were not
required to exhaust their administrative remedies,[^215] the Court of
Appeals determined that the plaintiffs had standing to challenge the
constitutionality of the act prohibition of §654(b)(1).[^216] The
district court, therefore, had erred in ruling upon the permissibility
of the statement presumption without first resolving the validity of the
act prohibition of §654(b)(2). In the eyes of the Court of Appeals, the
two subsections of the Act were inescapably linked. If the act
prohibition was invalid, then the statement presumption was invalid as
well. If, however, the act prohibition was permissible, then the
statement presumption was also valid.[^217] Since the district court had
failed to consider the constitutionality of the act prohibition, the
Court of Appeals vacated the district court's order and remanded the
case.

The Court of Appeals spent the remainder of the opinion explaining
exactly why the constitutionality of the statement presumption could not
be determined without first addressing the act prohibition. Before
turning to the merits of the challenge, however, the court reviewed the
"separate society" rationale that permits restrictions on speech in the
military that would otherwise run afoul of the First Amendment.[^218] As
previously explained in this article, the separate society rationale is
premised upon the unique military mission, the critical importance of
obedience and subordination, and the complimentary development of
military custom.[^219] Both underlying justifications had been adopted
and advanced by the Supreme Court in a series of constitutional
challenges arising within the military community.[^220]

Turning to the constitutionality of the statement presumption, the Court
of Appeals did not immediately agree that the presumption constituted a
content-based speech restriction. Although the district court had
concluded the restriction was aimed at the content of the statement, the
Court of Appeals pointed out that even if a speech restriction appears
on its face to be content-based, the Supreme Court has held that it may
be constitutionally valid if it serves a secondary purpose.[^221] In
*City of Renton v. Playtime Theaters*,[^222] the Supreme Court ruled
that a zoning ordinance that restricted the operation of adult theaters
was not aimed at the content of the films, but at the secondary effects
of the theaters on the surrounding community.[^223] The Supreme Court
held that the zoning ordinance was constitutional since it was "designed
to serve a substantial governmental interest and allow\[ed\] for
reasonable alternative avenues of communication."[^224] The Court of
Appeals' reference to *City of Renton* recognized the government's
attempt to draw an analogy between the principle in *City of Renton* and
the argument in *Able* that the central purpose of the statement
presumption was to prevent or discover homosexual acts. Of course, the
plaintiffs maintained that such an analogy could not be drawn because
the purpose of the statement presumption was to silence homosexual
members regarding their sexual orientation.[^225]

Before determining the primary purpose of the presumption, the Court of
Appeals reviewed the standard for both content-neutral and content-based
restrictions. Exploring the permissibility of content-neutral
restrictions, the court drew upon the case of *Wayte v. United
States*.[^226] In *Wayte*, the Supreme Court upheld the Department of
Justice's policy of selectively prosecuting men who had self-reported
that they did not intend to register for the Selective Service.[^227]
The Supreme Court concluded that the Department of Justice's policy met
the four-part test for content-neutral speech restrictions that was
first articulated in *United States v. O'Brien*.[^228] Applying the
*O'Brien* test to the statement presumption, the Court of Appeals noted
that if the statement presumption is content-neutral, then the crucial
inquiry would be whether the statement presumption furthers a
substantial government interest and whether the presumption restricted
speech no more than necessary.[^229]

Examining content-based speech restrictions in the special context of
the military, the Court of Appeals noted that the standard for
content-neutral restrictions arguably applied to content-based
restrictions as well.[^230] If a higher threshold was required for
content-based restrictions in the military context, the Court of Appeals
determined the statement presumption would have to substantially further
an important government interest and restrict no more speech than
necessary to further that interest.[^231] Although it claimed to have
articulated two distinct standards, the Court of Appeals cited nearly
identical language for both content-based and content-neutral
restrictions.[^232] Assuming the government's interest in preventing
homosexual acts was permissible and important, a determination left to
the district court on remand, the Court of Appeals ultimately determined
that the statement presumption was valid regardless of whether it was
characterized as content-based or content-neutral.

First, the Court of Appeals found that the statement presumption
furthers the government's important interest in preventing homosexual
acts in the military.[^233] The statement presumption of §654(b)(2)
required the discharge of a service member if he or she has a propensity
to engage in homosexual acts even if there is no proof that the person
actually engages in homosexual acts. The implementing directives defined
propensity as "more than an abstract preference or desire to engage in
homosexual acts; rather, it indicates a likelihood that a person engages
in or will engage in homosexual acts."[^234] The Court of Appeals
concluded that, "in the context of employment, the government may make a
decision based on the likelihood that an individual will engage in
prohibited activity, so long as the underlying prohibition is
constitutional."[^235] Since the correlation between those who state
that they are homosexual and those who engage in homosexual acts was
clear,[^236] the prohibition on homosexual acts permitted the government
to prevent homosexual acts by discharging those members likely to commit
such acts.[^237]

The Court of Appeals also disagreed with the district court's
interpretation of the Act's language. The Act did not equate status with
propensity. Although in most cases a member who states that he is a
homosexual will be discharged, this result comes to pass only because
the evidentiary value of the admission is strongly linked to a
likelihood of engaging in homosexual acts.[^238] Unlike the district
court, the Court of Appeals did not trivialize the opportunity that
service members were afforded to rebut the statement presumption. In
seven cases out of forty-three attempts, members were retained after
making the required showing.[^239] Hence, "the admission of homosexual
status does not inevitably equate with a finding of propensity to engage
in homosexual acts."[^240]

Addressing the second prong of the speech standard, the Court of Appeals
also found that the statement presumption restricts no more speech than
is reasonably necessary.[^241] The rebuttable presumption "plays a
significant role in the military's effort to eliminate homosexual
conduct from the military---an objective that it regards as
important."[^242] To the Court of Appeals, the policy represented "a
balance between a service member's privacy interest and the military
interest in prohibiting homosexual acts" by restricting when an
investigation can be initiated.[^243] As a general matter, a member will
be investigated only if he "does something (either by announcing his
sexuality or by engaging in conduct which is thereafter reported)" that
attracts the attention of the military authorities to him.[^244] Since
this policy is important to the accomplishment of the military mission
and reasonably balances the competing interests, the statement
presumption restrains no more speech than is reasonably necessary.[^245]

Concluding its analysis, the Court of Appeals again reiterated that its
examination was contingent upon the constitutionality of the act
prohibition of §654(b)(1). Significantly, it affirmed that "\[t\]he
government does not contend (nor could it) that in the event that
§654(b)(1) is held to be unconstitutional; §654(b)(2) may still be
upheld. Plainly, a limitation on speech in support of an
unconstitutional objective cannot be sustained."[^246] Consequently, the
Court of Appeals vacated the district court's order dismissing the
plaintiff's §654(b)(1) claim. It also remanded the case to allow the
district court to consider the constitutionality of the act prohibition
and then reconsider the permissibility of the statement presumption.

**C. The Second Opinion of the District Court**

On remand, the district court was assigned the task of determining
whether the act prohibition of §654(b)(1) violated the Equal Protection
clause of the Fourteenth Amendment, made applicable to the federal
government by the Fifth Amendment's Due Process clause.[^247] After
reviewing the history of the case, the court proceeded to frame the
issue in light of the Supreme Court's 1996 decision in *Romer v.
Evans*.[^248] The district court interpreted the ruling to establish
"that government discrimination against homosexuals in and of itself
violates the constitutional guarantee of equal protection."[^249] The
court further read the decision to implicitly hold that "such
discrimination, without more, is either inherently irrational or
invidious."[^250] Since the act prohibition treats sexual acts
differently depending upon whether the participants are homosexual or
heterosexual, the "issue is whether that different treatment deprives
homosexuals of their equal protection rights."[^251]

After relating a brief history of the social acceptance of homosexuals
and homosexual conduct, the court referenced social opinion polls that
illustrate the increasing level of social tolerance of homosexuality in
the United States. A Gallup Poll conducted in March 1991 indicated that
69 percent of respondents believed that homosexuals should be admitted
to the military. An April 1991 study by Penn and Schoen Associates
revealed that 81 percent of Americans believed that homosexuals should
not be discharged from military service solely because of their sexual
orientation.[^252] Additionally, many countries prohibit discrimination
against homosexuals and have successfully integrated homosexuals into
their armed forces without adversely affecting unit readiness,
effectiveness, cohesion, or morale.[^253] After further referencing the
history of hate crimes and governmental discrimination that homosexuals
have endured, the court repeated the admissions made by the government
in the case before it. Homosexuals were not excluded because of mental
defects, security threats, or fear of infectious diseases.[^254]
Instead, the court noted that the government had agreed that generally
homosexuals could serve honorably and were no more likely than
heterosexuals to violate the military code of conduct or other
rules.[^255]

The court explained that the rules codified in the UCMJ that govern
sexual behavior do not distinguish between homosexuals and
heterosexuals. After further describing each provision, the court
concluded that the UCMJ articles enable the military to deter "all
sexual behavior likely to cause harm or embarrassment to someone
else."[^256] In light of these criminal sanctions, the military did not
need to deter sexual misconduct by adding administrative
sanctions.[^257]

Although the military could prosecute under the UCMJ's comprehensive
criminal code, the court highlighted that §654(b)(1) requires a person
be discharged for acts that are "inherently innocuous" and not otherwise
criminal.[^258] Examples of such conduct include kissing and holding
hands off base and in private. The court could not imagine why "the mere
holding of hands off base and in private is dangerous to the mission of
the Armed Forces if done by a homosexual but not if done by a
heterosexual."[^259] It was "obvious," therefore, that holding hands was
not included in the act prohibition because it is "inherently
dangerous," but because it identified the speaker as a homosexual.[^260]

The court found the three justifications proffered by the government
based upon unit cohesion, privacy interests, and sexual tensions to be
illegitimate or irrational. The first justification for the act
prohibition was that the presence of a known homosexual would damage
unit cohesion by arousing the animosity of heterosexuals who morally
disapprove of homosexuals.[^261] Although this prejudice was the "only
conceivable way" that the presence of homosexuals could impact the level
of unit cohesion, it was an illegitimate reason for
government-sanctioned discrimination. Quoting the Supreme Court in
*Palmore v. Sidoti*,[^262] the court explained that:

> Private biases may be outside the reach of the law, but the law
> cannot, directly or indirectly, give them effect. Public officials
> sworn to uphold the Constitution may not avoid a constitutional duty
> by bowing to the hypothetical effects of private . . . prejudice that
> they assume to be both widely and deeply held.[^263]

The court contended that the applicable case law prohibited the
government from giving effect to private biases. The desire to
accommodate the personal objections to homosexuality was not sufficient
to uphold Amendment 2 to the Colorado Constitution.[^264] The desire to
protect a child from private racial prejudices was not a legitimate
reason to favor same-race couples over interracial couples in a child
custody determination.[^265] Finally, it was not legitimate for the
government to take the negative attitudes of property owners into
account in denying a zoning permit for a home for persons with mental
disabilities.[^266] The court found these principles to be equally
applicable in the military context, since the "Constitution does not
grant the military special license to act on prejudices or cater to
them."[^267]

The *Able* court also concluded that the government's rationale was
"incongruous."[^268] If the presence of homosexuals made heterosexual
members uncomfortable, then forcing the former to remain closeted does
nothing to relieve the fears of the latter. It was "unlikely in the
extreme that any enlisted member fit to serve would believe that
closeted homosexuals are not serving," especially after asking a member
if he is a homosexual and receiving a "no comment" response.[^269] Since
under the current policy any member could be a closeted homosexual, the
act prohibition, rooted in secrecy, could only result in an atmosphere
of general suspicion and mutual distrust hardly conducive to unit
cohesion.[^270]

The court found the justifications based upon privacy interests and
sexual tensions equally lacking. Regardless of how cramped or
involuntary the living and working conditions of service members may be,
closeted homosexuals were still entitled under the Act to serve.[^271]
Since "no rational person" would believe that homosexuals were currently
not sharing the same bathrooms and bunks, the act prohibition was not
rationally related to privacy.[^272] Moreover, the government documents
indicated that the privacy of heterosexuals was violated not by the
acting out of homosexual attractions, but by the mere presence of an
open homosexual in the living quarters.[^273] According to the court,
the Equal Protection clause simply does not allow the government to
discriminate against homosexuals in order to accommodate these
prejudices.

It was apparent that the court found the arguments based upon sexual
tensions between heterosexuals and homosexuals even less rational. The
government's assumption was that members were likely to act in
accordance with their sexual drives.[^274] Although tensions between
males and females were reduced by separate living facilities, it was not
possible to further separate heterosexuals from homosexuals. Since the
government did not provide reasons why it believed that open homosexuals
would be more likely to act upon their sexual attractions than closeted
homosexuals, the arguments were illogical.[^275]

Returning to a discussion of the applicable case law, the court outlined
the requirements of the Equal Protection clause. A court typically
"looks at what end the legislation seeks, whether that end is furthered
by the classification adopted, and its effect on the persons adversely
affected by the Act."[^276] If it neither burdens a fundamental right
nor targets a suspect class, the legislative classification must only be
rationally related to some legitimate end.[^277] However, it is
illegitimate to punish a harmless act solely because it "serves to
announce something that excites the animosity of others."[^278]
Additionally, the government is prohibited by the Equal Protection
clause from "indiscriminately imposing inequalities based upon naked
stereotypes."[^279] In the case before it, the court was convinced that
the act prohibition catered to the irrational prejudices of
heterosexuals.[^280]

The court reached into the pages of history to conclude its analyses. In
the Executive Order desegregating the military, President Harry S.
Truman stated "it is essential that there be maintained in the armed
services of the United States the highest standards of democracy, with
equality of treatment and opportunity for all those who serve in the
country's defense."[^281] Drawing upon this proposition, the court found
that the act prohibition brands open homosexuals, asserting their
inferiority by denying the opportunity to serve in the military, which
the court considered to be a primary act of citizenship.[^282]
Importantly, the court went on to conclude that because the government
"gives legal effect to prejudice in the military forces and not in
civilian government employment does not make the discrimination any more
valid."[^283] Consequently, the district court held that the unequal
conditions imposed upon homosexuals by the act prohibition were invalid
under the equal protection component of the Fifth Amendment.[^284]
Having declared the act prohibition unconstitutional, the court also
ruled the statement presumption was also unconstitutional under the
First Amendment.[^285] Consequently, the court enjoined the government
from applying 10 U.S.C. §§654(b)(1) and (b)(2) to the plaintiffs.

**D. The Second Opinion of the Second Circuit**

The case went back before a three judge panel of the Second
Circuit.[^286] The court held that the act prohibition, §654(b)(1), did
not violate the Equal Protection clause under rational basis
review.[^287] Having previously held that the constitutionality of the
statement presumption, §654(b)(2), was dependent upon the
constitutionality of the act prohibition, the court accordingly declared
that the statement presumption was constitutional as well.[^288]

Although the district court had suggested heightened scrutiny was the
appropriate standard of review, the Court of Appeals noted that at oral
arguments the plaintiffs stated they were only seeking rational basis
review of the Act.[^289] The scope of rational basis review, however, is
very narrow. In *Heller v. Doe*,[^290] the Supreme Court ruled that
"rational-basis review in equal protection analysis 'is not a license
for courts to judge the wisdom, fairness, or logic of legislative
choices.'"[^291] Legislative classifications are entitled to "a strong
presumption of validity" and the government "has no obligation to
produce evidence to sustain the rationality of a statutory
classification."[^292] The assumption, therefore, is that the Act was
constitutional and "the burden is on the one attacking the legislative
arrangement to negative every conceivable basis which might support it,
whether or not the basis has a foundation in the record."[^293]

The Court of Appeals further explained the plaintiffs faced an even more
daunting task in challenging a statute applicable only to the military.
Great deference is afforded to legislative judgments affecting the
military,[^294] especially "where, as here, the challenged restriction
was the result of exhaustive inquiry by Congress in hearings, committee
and floor debate."[^295] The Court of Appeals contended that this
deference was "deeply recurrent in Supreme Court case law," justifying a
long string of legislative and executive decisions in the military
context.[^296] Based upon the separate society rationale,[^297] military
members are not afforded the same constitutional protections as their
civilian counterparts, both generally and in the military justice
process.[^298] Although the Court of Appeals could not abdicate its
constitutional role, "courts are ill-suited to second-guess military
judgments that bear upon military capability or readiness."[^299]

The Court of Appeals addressed both of the plaintiffs' equal protection
arguments. First, the plaintiffs argued that the Act is premised on
irrational prejudice and fears that can never serve as a legitimate
government interest, based upon the holdings in *Romer v. Evans*, *City
of Cleburne v. Cleburne Living Center*, and *Palmore v. Sidoti*.[^300]
Rejecting this argument, the court explained that these cases did not
arise in the military setting, where "constitutionally-mandated
deference to military assessments and judgments gives the judiciary far
less scope to scrutinize the reasons, legitimate on their face, that the
military has advanced to justify its actions."[^301] Additionally,
*Romer* and *Cleburne Living Center* involved restrictions based on
status and the court had already determined that the act prohibition
targeted conduct.[^302]

Second, the plaintiffs contended that the government's justification
based upon unit cohesion, reduced sexual tensions, and privacy were not
rationally related to the prohibition on conduct. The court also found
this argument unpersuasive. Given the extensive congressional hearings
and deliberation supporting the Act, the court was willing to defer to
the Congress' judgment.[^303] It could not find that Congress' reliance
on the "considered professional judgment" of numerous military experts
and personnel was irrational.[^304]

After restating a number of the specific findings articulated by
Congress, the court concluded that it would not substitute its judgment
for that of Congress. This deference was based upon the "strong
presumption of validity we give classifications under rational basis
review and the special respect accorded to Congress's decisions
regarding military matters."[^305] Consequently, the court held that the
act prohibition of §654(b)(1) did not violate the Equal Protection
Clause under rational basis review. Since the act prohibition was
constitutional, the statement presumption of §654(b)(2) was also
valid.[^306]

**IV. THE DIFFERENCE BETWEEN CAN AND SHOULD**

The public and private debate concerning the current discharge policy
typically centers on two distinct but related questions. The first is
whether the military *can* constitutionally discharge members who engage
in or have a propensity to engage in homosexual conduct without
violating the Constitution. Although the Second Circuit ultimately
upheld the military's ability to do so, future cases may benefit from a
clarification of the applicable legal principles. Accordingly, the
discussion in this section will advance in four parts. First, the
military no longer argues that homosexual conduct is, in and of itself,
wrong. The military objects to the conduct only to the extent that it
threatens unit cohesion, reduces privacy, or increases sexual tension.
In this sense, the underlying rationale is based upon the threat to good
order and discipline posed by the conduct and is similar to the
prohibition on fraternization. Second, the threat to good order and
discipline is premised upon the reaction of other military members who
object to homosexual conduct. This reaction may be couched in terms of
"prejudice," "irrational fear," or "justified disgust," but it
nevertheless is a "reaction" that has been determined to be disruptive
to the efficient operation of the units. Third, assuming that Congress
and the commanders are correct in their estimation of the disruptive
effect, case law indicates that the military may take corrective and
preemptive action to remedy or prevent disruptions to good order and
discipline, even if a liberty interest or fundamental right is at issue.
Finally, courts have traditionally given the military great deference in
its determination of the potential threat posed by a given behavior on
the efficient operation of the military.

The second and more controversial question is whether the military
*should* continue to discharge members who engage in or are likely to
engage in homosexual conduct. It is undisputed that the military may and
must take action to insure its ability to fulfill the mission, which by
necessity requires that it remedy or prevent disruptions to good order
and discipline. As defined by Congress, the threat posed by homosexual
conduct, however, involves two sets of actors. The first set is composed
of the members who engage in or have a propensity to engage in
homosexual conduct. The second set includes military members whose
working relationships within the units are disrupted by the presence of
the first set of actors. It is possible, if not probable, that it is
more efficient to remove the first set than to change the reactions of
the second. This article suggests, however, that supplementing the Air
Force's current anti-discrimination program with a toleration component
for homosexuals may have a number of legal and social benefits. Such a
program would not necessarily entail any effort to change members'
beliefs, attitudes, or feelings about homosexual conduct. Instead, it
would merely discourage discrimination or intolerance based upon sexual
orientation.

**A. Can the Military Discharge Members Who Engage In or**

**Have a Propensity To Engage In Homosexual Acts?**

An examination of whether the military can constitutionally continue to
discharge members who engage in or have a propensity to engage in
homosexual conduct will be structured around four questions. The first
question is whether homosexual acts or statements are "misconduct." The
second question is whether the discharge policy is based upon the
"reactions," "prejudices," or "fears" of other military members. The
third question is whether the military is permitted to discharge members
based upon the reactions, prejudices, or fears of other military
members. Finally, the question of how courts evaluate the military's
estimation of disruptions to good order, discipline, and morale is
addressed.

*1. Are Homosexual Acts or Statements Misconduct?*

It is important to begin this discussion by examining the source of the
military's concern about homosexual acts. Recall that homosexual acts
are defined as any "bodily contact, actively undertaken or passively
permitted, between members of the same sex for the purpose of satisfying
sexual desires; and any bodily contact which a reasonable person would
understand to demonstrate a propensity or intent to engage in \[such
behavior\]."[^307] This definition includes criminal behavior such as
sodomy as well as otherwise noncriminal behavior such as handholding and
kissing.

Some acts within the UCMJ are prohibited because the occurrence of the
act is a wrong in and of itself. For example, the UCMJ imposes criminal
punishments upon those members who engage in sodomy. In this regard, it
is irrelevant whether 90 percent of the military population engages in
sodomy, approve of sodomy, are ignorant of the occurrence of sodomy, or
prefer to work with individuals who engage in sodomy.

Other behaviors or relationships are prohibited not because they are
wrong in and of themselves, but because they are disruptive to good
order and discipline. Examples include unprofessional
relationships[^308] and, more specifically, fraternization.[^309] The
military does not express a judgment about the appropriateness of a
relationship between Tom Smith and Jane Doe. The military does not
appear to express any opinion if they go out to dinner, hold hands,
kiss, have pre-martial sex, or get married. This neutrality changes, of
course, if the two engage in sodomy or are married to other people. This
neutrality also changes if the relationship is between Major Tom Smith
and Airman Jane Doe. If they go out to dinner, hold hands, kiss or have
premarital sex, then the disparity in rank may create a situation that
undermines the command structure of the Air Force and is prejudicial to
good order and discipline. Consequently, the relationship constitutes
fraternization and is impermissible and punishable by Article 92 and
Article 134, UCMJ

Homosexual acts that do not rise to the level of otherwise criminal
behavior are prohibited not because they are wrong in and of themselves,
but because they are disruptive to good order and discipline.[^310] The
military expresses no opinion as to the appropriateness of Tom Smith and
John Doe holding hands or kissing. However, if Airman Tom Smith and
Airman John Doe engage in this type of conduct, which fits the
definition of homosexual acts, then the government has determined that
the behavior creates an unacceptable risk to good order and discipline.
While it may be argued that this type of homosexual act constitutes the
offense of indecent acts with another under Article 134, U.C.M.J,[^311]
this argument has not been advanced in recent litigation. Instead, the
government's argument most recently expressed in *Able* is that
homosexual conduct threatens unit cohesion, decreases privacy, and
increases sexual tensions within the military force.

It appears, therefore, that the district court erred in its
characterization of homosexual acts that do not rise to the level of
criminal behavior. The court stated that a homosexual statement under
§654(b)(2) is "transmogrified into an admission of *misconduct*."[^312]
The term misconduct would seem to imply that the individual has engaged
in an activity that is in and of itself wrong. But this is not actually
the case. The military is not taking a position---favorable, neutral, or
unfavorable---on the appropriateness of the underlying behavior, absent
the threat to good order and discipline. In this sense, the court is
correct that the acts are "inherently innocuous."[^313]

This characterization changes once the "inherently innocuous" acts occur
in the military context. Recall that the district court concluded that
the government has not determined that homosexuals "by their nature"
pose "an uncontrollable risk that they would commit acts *inherently
dangerous* to morale, good order and discipline, and unit
cohesion."[^314] The court also could not understand why "the mere
holding of hands off base and in private is dangerous to the mission of
the Armed Forces if done by a homosexual but not if done by a
heterosexual."[^315] The military, however, has determined that the
occurrence of otherwise *innocuous* homosexual acts are *inherently
dangerous* to good order and discipline if committed by military
members. Congress has determined that homosexual acts pose such a threat
to good order and discipline that individuals who engage in or have a
propensity to engage in homosexual acts should be discharged in most
instances. These otherwise innocuous acts are not inherently dangerous
if committed by heterosexual military members because they do not
represent the same threat to unit cohesion, decreased privacy, and
increased sexual tension.[^316]

The Second Circuit, therefore, only identified part of the rationale
supporting the statement presumption of §654(b)(2). Recall that the
court found that the statement presumption furthered the government's
important interest in preventing homosexual acts in the military.[^317]
The military, however, is not concerned with the occurrence of
homosexual acts in a vacuum. Instead, homosexual acts must be prevented
because they are harmful to unit cohesion, sexual tension, and privacy
that are also threats to good order and discipline. Thus, both the
statement presumption and the act prohibition are ultimately aimed at
the prevention of disruptions to good order and discipline. While the
significance of this distinction will be fully explored below, properly
identifying the supporting rationale permits the military to restrict
homosexual statements that are disruptive to good order and discipline,
regardless of the link between homosexual statements and the occurrence
of homosexual acts.

While both the statement presumption and the act prohibition appear to
be based upon the potential disruption to good order and discipline, it
is necessary to identify the origin of this threat. It appears that the
threat posed by homosexual acts is a result of the reaction of other
military members to the occurrence of the acts. Once the origin is
identified, it is then necessary to determine if and how the government
may act to dispel the threat. These questions will now be addressed in
turn.

*2. Is the Discharge Policy Based Upon the "Reactions,"*

*"Prejudices," or "Fears" of Military Members?*

Based upon the foregoing analysis, the homosexual discharge policy is
based upon the reactions of military members who disapprove of
homosexual conduct. Perhaps the simplest way to answer this question is
to imagine that only homosexuals served in the military. If this were
the case, then homosexual conduct that did not rise to the level of
criminal behavior would be no more disruptive to the military than
heterosexual conduct is now. Men holding hands would be no more
disruptive to unit cohesion than men and women holding hands. It is also
unlikely that in a homosexual military the open display of homosexual
conduct would increase sexual tensions or decrease privacy any more than
heterosexual conduct does now. Put differently, if every member of the
military, regardless of sexual orientation, was indifferent or
supportive of individuals who engaged in homosexual conduct, then the
behavior would not be disruptive to unit cohesion, would not decrease
privacy, or increase sexual tension.

One may describe the reaction of other military members to homosexual
conduct as just that, a reaction. Others may describe it as prejudice or
irrational fear. It may be based upon personal, moral, or religious
condemnation. Regardless of how it is described, if the reaction is
disruptive to good order and discipline, then the military is
constitutionally permitted to react by removing from the ranks members
who engage in the disruptive behavior.

*3. Can the Military Discharge Members Based Upon the "Reactions,"*

*"Prejudices," or "Fears" of Military Members?*

Despite a number of arguable characterizations, the question that must
be addressed is whether the reactions of other military members are a
permissible basis upon which to discharge members likely to engage in
homosexual conduct. The answer is yes, if in the professional judgment
of Congress, the President, or the military, homosexual conduct is
disruptive to the military units and the accomplishment of the military
mission. The government is permitted to consider the reaction of other
employees in the office when determining whether to discharge a civilian
government employee. Because of the extreme importance of unit cohesion
and discipline to the effectiveness of the military, the Supreme Court
has recognized that certain military personnel decisions and
restrictions are permitted by the Constitution even if they would
otherwise be impermissible in the civilian setting. For the purposes of
this section, it will be assumed that Congress and military commanders
are correct in their estimation that homosexual conduct poses a
substantial threat to the military mission. This assumption will be
revisited in the next section.

To begin this discussion, recall that the district court relied upon
*Romer, Palmore,* and *Cleburne Living Center* to conclude that the
prejudice of heterosexual members represented an illegitimate reason for
government-sanctioned discrimination.[^318] The district court actually
cited *Palmore v. Sidoti* for the proposition that "\[p\]rivate biases
may be outside the reach of the law, but the law cannot, directly or
indirectly, give them effect."[^319] The Court of Appeals countered that
these cases did not arise in the military setting and that *Romer* and
*Cleburne Living Center* involved restrictions based upon status and not
conduct.[^320] While the Second Circuit's observations are correct, a
further examination of the rationale supporting the military's ability
to protect and maintain good order and discipline highlights why the
administrative discharge policy is permissible.

The government may seek to act upon the prejudices or reactions of two
categories of individuals. First, the society as a whole may be
prejudiced or adverse to the behavior at issue. Although the government
has not argued that the homosexual discharge policy is based upon the
reactions of the society as a whole, it was the fears or prejudices of
this group of individuals that were at issue in *Romer, Palmore,* and
*Cleburne Living Center*. While the government may not act upon these
societal prejudices when it is acting in its capacity as sovereign, the
government may consider these reactions when it is acting as employer.
For instance, recall that NASA was permitted to consider the public
reaction to and embarrassment over notorious conduct in *Norton v.
Macy*.[^321] Furthermore, the Attorney General in *Shahar v. Bowers* was
permitted to consider the damage to office credibility that resulted
from the same-sex marriage.[^322] The courts in these cases did not
indicate an intention to inquire into whether the public *should* have
reacted to the conduct at issue, but instead sought to determine if it
*had* reacted or would in the future.

The military also has a sanction at its disposal that allows it to
protect its reputation and public confidence in its abilities. Article
134, UCMJ, permits the military to impose criminal punishments upon
conduct that is of a nature to bring discredit upon the armed
forces.[^323] The explanation accompanying the Article states that the
clause "makes punishable conduct which has a tendency to bring the
service into disrepute or which tends to lower it in public
esteem."[^324] Similar to the inquiry for government employment cases,
the Article does not make a judgment as to whether the conduct *should*
bring the service into disrepute, only if it *does*.

In addition to the fears of society, the government may seek to act upon
the prejudices or reactions of its personnel. Based upon the foregoing
analysis and the arguments advanced by the government in *Able*, this
represents the current basis of the homosexual discharge policy. As Part
II of this article indicates, the government as employer is permitted to
act upon the reactions of its employees. The government's discretion is
even greater for the military. The exercise of this discretion does not
indicate that the military is otherwise hostile to the behavior at
issue, is neutral towards it, or would like to encourage it. Instead,
the government as employer is concerned with the efficiency of its
offices and is permitted to stop or remove whatever behavior is
disrupting the office, regardless of how it may feel about the
underlying conduct.

An appreciation of the military's ability to protect itself from the
threats to good order and discipline posed by military personnel can be
gained from the Supreme Court's decision in *Brown v. Glines*.[^325] An
Air Force captain, Glines drafted a petition to high-level government
officials complaining of the Air Force's grooming standards.[^326] Two
Air Force regulations restricted the circulation of petitions.[^327] The
Court concluded that the regulations were permissible under the First
Amendment because they advanced a substantial government interest
unrelated to the suppression of free expression and restricted no more
speech than was reasonably necessary to protect that interest.

While recounting the special characteristics and attributes of the
military as a separate society, the Supreme Court found that the
regulations protect a substantial Government interest unrelated to the
suppression of free speech.[^328] That interest was the avoidance of a
"'clear danger to the loyalty, discipline, or morale of the troops on
the base under his command.'"[^329] In doing so, the Court repeated
selective quotes from its precedent to explain the separate community
rationale. For example, "\[t\]o ensure that they always are capable of
performing their mission promptly and reliably, the military services
'must insist upon a respect for duty and a discipline without
counterpart in civilian life.'"[^330]

After finding that the regulations advanced a substantial government
interest, the Court also concluded that the Air Force regulations
restrict speech no more than is reasonably necessary.[^331] The
regulations "prevent commanders from interfering with the circulation of
any materials other than those posing a clear danger to military
loyalty, discipline, or morale."[^332] The additional limitations
contained in the regulations convinced the Court the commander's
censorship authority was sufficiently limited. Finally, the Court
reasoned that the prior approval requirement was necessary because if
the commander did not have the opportunity to review the material, then
he "could not avert possible disruption among his troops."[^333]

The protection of political speech is, of course, at the heart of the
First Amendment. Although arguably political speech, Glines' petition
would undoubtedly be protected from content-based or viewpoint-based
regulation in the civilian context.[^334] The Court concluded, however,
that commanders must be able to protect the ranks from material that
would interfere with loyalty, discipline, or morale. Consequently, the
Supreme Court upheld the military's ability to regulate speech that
commanders believe would threaten good order and discipline.

Although it has never ruled on the precise issue of homosexual
discharges, the Supreme Court's rationale in *Glines* indicates that the
military may remove members whose behavior is disruptive to good order
and discipline. Speech, of course, is typically protected by the First
Amendment as a fundamental right. In order for a military speech
restriction to be upheld, a court should note that the protection of
good order and discipline constitutes a significant government interest,
and then determine whether the restriction is narrowly tailored. Recall,
for example, that the Eleventh Circuit in *Shahar v. Bowers* adopted the
free speech test outlined in *Pickering* to guide its same-sex marriage
employment determination. If the same military free speech standard
outlined in *Brown v. Glines* applies to homosexual statements, acts,
and marriages, then the examination should proceed as follows. The court
should note that the protection of good order and discipline constitutes
a significant government interest, and then determine whether the
restrictions on homosexual statements, acts, and marriages are narrowly
tailored. This is true even if the act in question, like speech, would
otherwise constitute a fundamental right or liberty interest. For
example, even if a person possessed a liberty interest in entering a
same-sex marriage, if the marriage was disruptive to good order and
discipline, then the military could criminally prohibit it or,
alternately, discharge members who entered such an arrangement.

Based upon this reasoning, it would also appear that the military is
permitted not only to take action based upon homosexual conduct, but
also based solely on homosexual statements. This action would be
permitted regardless of any link between homosexual statements and
homosexual conduct, so long as Congress or military commanders concluded
that homosexual statements were themselves disruptive to good order and
discipline. It would appear, therefore, that the Second Circuit was
incorrect when it concluded that the statement presumption of §654(b)(2)
could not be upheld if the act prohibition of §654(b)(1) was found to be
unconstitutional.[^335] The court stated that "a limitation on speech in
support of an unconstitutional objective cannot be sustained."[^336] As
previously explained, however, the objective of both the statement
presumption and the act prohibition is to dispel threats to good order
and discipline. Thus, if homosexual statements are themselves disruptive
to military units, then the speech could be suppressed regardless of
whether the homosexual acts could also be prohibited. Each restriction
should rise or fall independently, based on whether each provision seeks
to prevent disruptions to good order and discipline.

To illustrate this point, imagine that a presidential election is
approaching. Candidate X has a platform that includes the elimination of
the military, weekly flag burning in schools, the destruction of all war
memorials, the restriction of women and racial minorities from the
workplace, and, finally, the implementation of a communist-based
societal order. A military member comes into work everyday and states
that he is going to vote for Candidate X. He does not try to persuade
anyone else to vote for Candidate X, but does explain that he thinks the
platform would be good for the country. Although it does not appear that
the military has ever tried, it is at least questionable whether the
military could prevent a member from voting for Candidate X.[^337]
Although regulations currently protect a member's ability to express
personal opinions on the political candidates, the Court's reasoning in
*Glines* would support the military's decision to prevent the member
from stating his intention to vote for Candidate X if the statement is
disruptive to good order and discipline.[^338]

The issue of flag burning serves as another illustrative example of the
military's ability to restrict the behavior or conduct of its members.
Recall that the district court relied upon *Texas v. Johnson* to support
its conclusion that the statement presumption was
unconstitutional.[^339] Although the Supreme Court invalidated a Texas
statute that made it a crime to desecrate an American flag, it is less
than clear that a military member has a similar First Amendment right to
burn an American flag. The two military cases that have addressed flag
desecration have not reached the issue. In *United States v.
Hadlick*,[^340] the then-Army Court of Military Review (ACMR) determined
that Hadlick had spit on the flag "for no particular reason" and
therefore had no claim to First Amendment protection.[^341]

The ACMR rejected a free speech challenge to an Article 92, UCMJ,
conviction in *United States v. Wilson*.[^342] Wilson was a disenchanted
military policeman on flag-detail. After expressing his disgust with the
Army and the United States, he blew his nose on the American flag.[^343]
While the actions constituted expressive conduct, Wilson had a duty as a
military policeman on flag detail to safeguard and protect the flag.
Applying the *O'Brien* test,[^344] the court first found that Article 92
"is a legitimate regulatory measure because the government may regulate
the conduct of soldiers."[^345] Second, Article 92 "furthers an
important and substantial government interest in promoting an effective
military force."[^346] Third, the purpose of Article 92, "in proscribing
failures to perform military duty is, on its face, unrelated to the
suppression of free speech."[^347] "Finally, the incidental restriction
of alleged First Amendment freedoms is no greater than is essential to
further the government interest in promoting the disciplined performance
of military duties."[^348] Although one may disagree with the court's
application of the *O'Brien* test,[^349] the Army Court of Military
Review held that based upon Wilson's specific duty the expressive
conduct was unprotected.

The question left unanswered is whether the Constitution permits the
military to take either criminal or administrative action against a
member who burns his own flag off duty and out of uniform. The military
judge in *Wilson* merely stated that "arguably then that expression of a
position might be protected, that issue has yet to be decided.\"[^350]
The issue has prompted some academic interest.[^351] If, unlike Hadlick,
a military member burns a flag for expressive purposes during an
off-base demonstration, can the military impose a criminal sanction
under the UCMJ without offending the First Amendment? One commentator
has concluded that "\[l\]ittle question exists that a flag burner in the
ranks will undermine the effectiveness of response to command."[^352]
Flag burning strikes at "the very heart of good order and discipline"
and would subject the flag burner to abuse from the members in his
command.[^353] A breach of the peace may result, and "any trust" in the
flag-burner's "ability and desire to defend his fellow soldiers---let
alone his country---in combat would be questionable."[^354] Once again,
if the expressive conduct disrupts good order and discipline in all
instances, then the Supreme Court's reasoning in *Glines* would permit
the military to prohibit flag burning through either generally
applicable regulations or specific command orders.

In the civilian community, flag burning may not be outlawed merely
because of the reaction or "veto" of the "angry crowd." The ability of
the government to silence a speaker because of the reaction of an angry
crowd is known as the "heckler's veto," and it is prohibited under the
First Amendment in the civilian community.[^355] This principle is what
permits socially and politically unpopular groups to parade with a
police escort through city streets and rally at courthouses across the
nation. Yet, while the government is not permitted to silence speakers
in its capacity as sovereign, it is permitted to do so when it is
employing civilians or administering the military. Courts have not
applied the prohibition on the heckler's veto to the military because of
the government's compelling interest in maintaining good order and
discipline. As commentators have noted, although the heckler's veto may
not be used to silence a speaker in the civilian setting,
"constitutional decisions requiring authorities to control the angry
crowd rather than the unpopular speaker are not precedents for the
military."[^356]

*4. How Does a Court Evaluate the Military's Estimation of*

*Disruptions to Good Order, Discipline, and Morale?*

In the previous section, the assumption was that Congress and military
commanders were correct in their estimation that homosexual conduct
poses an unacceptable risk to good order and discipline. This assumption
has become the subject of some debate as advocates argue that the
majority of military members are not disturbed by homosexual
conduct.[^357] For example, the district court cited a number of studies
and surveys that indicate the presence of open homosexuals within the
military would not be disruptive to the units.[^358] Although gay rights
advocates may provide evidence that would support this conclusion, prior
holdings of the Supreme Court indicate that such evidence will
ultimately be unconvincing.

The case of *Goldman v. Weinberger*[^359] highlights the extent of
judicial deference to the judgement of military commanders on the
question of disruptions to good order and discipline. At issue was Air
Force Regulation 35-10, which only permitted the wearing of nonvisible
religious apparel.[^360] Captain (Rabbi) Goldman felt compelled by his
religious beliefs to wear a yarmulke while on duty and in uniform. He
argued "that the Free Exercise Clause of the First Amendment requires
the Air Force to make an exception to \[AFR 35-10\] for religious
apparel unless the accouterments create a 'clear danger' of undermining
discipline and esprit de corps."[^361] Then-Justice Rehnquist, joined by
four other Justices,[^362] held that the Free Exercise Clause did not
require the Air Force to make an exception to its uniform and generally
applicable dress regulations even if it had the effect of substantially
burdening religion.

Speaking to the issue of judicial deference, Justice Rehnquist noted
that, even when evaluating whether military needs justify a regulation
of religiously motivated conduct, "courts must give great deference to
the professional judgment of military authorities concerning the
relative importance of a particular military interest."[^363] The Air
Force had determined that "standardized uniforms encourages the
subordination of personal preferences and identities" as well as "a
sense of hierarchical unity by eliminating outward individual
distinctions except for those of rank."[^364] Attacking the Air Force's
argument that granting an exception would threaten discipline, Captain
Goldman contended that this argument was a bare assertion "with no
support from actual experience or a scientific study in the record, and
is contradicted by expert testimony."[^365] But Justice Rehnquist
concluded "whether or not expert witnesses may feel that religious
exceptions to AFR 35-10 are desirable is quite beside the point."[^366]
The appropriate military officials decided the desirability of the dress
regulation, and "they are under no constitutional mandate to abandon
their considered professional judgment" and grant an exception.[^367]

Thus, Barry Goldwater may be correct in his belief that "\[l\]ifting the
ban on gays in the military isn't exactly nothing, but it's pretty
damned close."[^368] In the coming years, advocacy groups will no doubt
gather evidence to support this belief and add to the studies cited by
the district court in *Able*.[^369] It does not appear, however, that
evidence supporting his opinion would sway the courts. If, in the
professional judgement of Congress and the military, homosexual conduct
threatens good order and discipline, then Congress and the military may
constitutionally discharge members who engage in or have a propensity to
engage in such behavior.

**B. Should the Military Discharge Members Who Engage In or**

**Have a Propensity To Engage In Homosexual Acts?**

One point can not be overemphasized---the military should and must take
whatever measures necessary to prevent and remedy substantial threats to
good order, morale, and discipline. If in the judgment of Congress, the
President, and the military, *homosexual acts* pose a substantial threat
to good order and discipline, then the threat must be alleviated. If in
the judgment of Congress, the President and the military, *homosexual
statements* pose a substantial threat to good order and discipline, then
the threat must be alleviated. If in the judgment of Congress, the
President, and the military, *homosexual marriages* pose a substantial
threat to good order and discipline, then the threat must be alleviated.
Given the critical importance of military mission to the protection and
survival of the country, no other conclusion is defensible.

How the threat should be alleviated, however, is the subject of some
discussion. Given the current rationale for the administrative discharge
policy, there are at least two groups responsible for the threat to good
order and discipline---individuals who engage in homosexual conduct and
military members who object to this behavior. To illustrate the dual
nature of the threat to good order and discipline, it may be helpful to
examine the case of *Ethredge v. Hail*.[^370]

In *Ethredge*, the commander of Robins Air Force Base issued an
administrative order barring bumper stickers or other signs that
"embarrass or disparage the Commander in Chief."[^371] Ethredge, a
civilian employee who had worked at the base for over twenty-five years,
refused to remove a bumper sticker from his truck that read "HELL WITH
CLINTON AND RUSSIAN AID" claiming that it was protected speech under the
First Amendment.[^372] The Eleventh Circuit denied his challenge,
finding that Robins Air Force Base was a nonpublic forum, permitting
officials to impose speech regulations so long as it "is reasonable and
not an effort to suppress expression merely because public officials
oppose the speaker's view."[^373]

The court reasoned that the order was not viewpoint-based because it did
not prohibit criticism of the President.[^374] Finding that the
restriction was reasonable, the court noted that a commander may
implement a speech restriction without demonstrating actual harm.[^375]
The commander is merely required to demonstrate a "clear danger to
military order and morale."[^376] Since the installation commanders
submitted affidavits that they believed the sign would "undermine
military order, discipline, and responsiveness" and anonymous phone
callers had threatened to break the window out of Ethredge's truck, this
standard was met.[^377] As the court concluded, "\[w\]e must give great
deference to the judgment of these officials."[^378]

Although one may dispute the court's free speech analysis,[^379] the
more interesting aspect of the decision is the threat to military order
and discipline posed by the message. It appears doubtful that Ethredge
was advocating the windows of his truck to be broken. Unlike a soldier
in Vietnam advocating for the overthrow of the government or the end of
the war,[^380] Ethredge's speech was likely to incite lawless action to
his detriment. It could be argued, therefore, that the real threat to
good order and discipline arose not from Ethredge's message, but from
the inability of his co-workers to resist the urge to destroy his
property.

The legal implications of this observation are uncertain. Ethredge's
sign expresses a political viewpoint that would undoubtedly be protected
by the First Amendment in a public forum from content-based and
viewpoint-based restrictions. Since free speech rights are at least
implicated by the incident, it is possible that a court may be justified
in hesitating to give deference to the military unless the commander
could point to some action he has taken to identify or dispel the threat
posed by the anonymous callers.

The level of action required by the commander may be slight, consisting
of no more than the commander's assertion that she does not have the
time or resources to identify the callers given the other demands of the
military mission. Perhaps the commander would only have to state that
she initiated an investigation that was unable to identify the callers.
Additionally, it is possible that the court would be satisfied if the
commander had stated that she had posted notices around the base
explaining that anonymous threats of violence would not be tolerated,
but that these efforts were unsuccessful in ending the threat to good
order and discipline. Ultimately, of course, the extent of the response
required of the commander may vary. In a situation implicating
constitutional rights of one group, however, it is at least conceivable
that a court may refuse to defer to a commander who states she has done
nothing to alleviate the threat posed by another group's reaction.

Similar to the situation encountered in *Ethredge*, the disruption
caused by homosexual conduct is a product of two groups---those members
who engage in homosexual conduct and those members who object to such
conduct. If the military is no longer taking any independent position on
homosexual conduct and all other things being equal, then the military
should be ambivalent as to whether homosexual conduct is prohibited or
military members are no longer disrupted by the behavior. Of course, all
other things may not be equal and one solution may be preferable to the
other. It may be easy to identify the members who engage in homosexual
conduct but extremely difficult to modify the attitudes, behaviors, or
tolerance levels of other military members who object to the conduct.
Even if it were possible to modify the attitudes, behaviors, or
tolerance levels, it may require a great expenditure of scarce time and
resources to implement a program aimed at making these military members
more tolerant of homosexual conduct. Even if a toleration program were
implemented, it may be impossible or extremely difficult to make the
program succeed.

On the other hand, courts and policymakers may be especially sensitive
to the issues surrounding homosexual behavior because of the
constitutional protections that are typically implicated. There also may
be a benefit to a toleration program on the military's efforts at
combating other forms of intolerance and discrimination. In this regard,
a more tolerant force might be preferable to a less tolerant force.
Perhaps most importantly, efforts to minimize the reactions of military
members to homosexual conduct might provide the military a weapon to
combat political assaults on the policy within political arenas,
including Congress. The military could respond to the demands of
advocacy groups by showing a good faith effort to minimize the reaction
of heterosexual members to homosexual conduct. These efforts may not
ultimately achieve the level of toleration necessary to change the
current policy or represent the most aggressive effort possible. It may
provide, however, at least some evidence of the military's attempt to
resolve the threat to good order and discipline as well as the
difficulty of changing the opinions and reactions of heterosexual
members. The question that remains, therefore, is what type of program
could be aimed at alleviating the members' reaction to homosexual
conduct.

Many have refuted the effectiveness of some types of anti-discrimination
program. General Schwarzkopf explained his belief to the House Armed
Services Committee when the current policy was originally being
formulated.

> Yet many who advocate lifting the ban on homosexuals in the military
> blithely say we can overcome all the problems I have raised by
> ordering already overburdened military leaders at all levels to
> "institute training for all personnel *on the acceptance of homosexual
> or bisexual orientation or conduct,*" even when the large majority of
> the leaders and the troops have clearly stated, "they oppose allowing
> homosexuals in the military" and "believe the gays serving openly in
> the military would be very disruptive to discipline."[^381]

Major Kathleen C. Bergeron, USMC, echoed this sentiment stating, "I do
not believe that any amount of sensitivity training or reeducating will
change the way Marines *think or feel about homosexual behavior*,
because there is nothing more basic to an individual than his or her own
sexuality."[^382] It would be difficult, if not impossible, to refute
the sincere beliefs of General Schwarzkopf and Major Bergeron given
their respective experience and command positions within the military.

It is possible, however, that an antidiscrimination program could
supplement existing programs without offending the observations of these
combat officers. Quite simply, an antidiscrimination program could
merely advocate the toleration of individuals who engage in homosexual
conduct. Such a program would not seek to convince heterosexual members
to accept homosexual orientation or conduct, nor would it seek to change
the way members think or feel about homosexual behavior. Instead, it
would merely advise members that regardless of their personal feelings
on the matter, members should not discriminate against or allow the
presence of homosexuals to impact their work performance.

So fashioned, an antidiscrimination program could be added to the
current programs which prohibit discrimination based upon "race, color,
religion, sex, or national origin."[^383] These programs, administered
primarily by Military Equal Opportunity, do not require that members
accept a certain religion, believe in gender equality, or actively
support race initiatives. Instead, the guidelines prohibit members from
discriminating against other members based upon these factors,
characteristics, or attributes. What a member accepts, thinks, or feels
is left to his or her judgment.

Given the recent Executive Order that added sexual orientation to the
list of categories that may not form the basis of discrimination by the
Federal Government,[^384] it seems appropriate for military personnel
who supervise or interact with civilian employees to receive
instructions on this issue. It would also appear that instructions would
be appropriate for personnel who interact with other groups of
individuals that may include homosexuals, such as dependents or the even
the general public. If instructions are given that discrimination or
intolerance of these groups is to be discouraged, then the question may
become why shouldn't personnel be instructed that discrimination against
other military members who may be suspected of being homosexual is also
to be discouraged. It may be that a toleration program could not be
initiated so long as the current policy is in place. Moreover, it is
uncertain whether supplementing the current program would ultimately
succeed in alleviating some or much of the intolerance displayed toward
homosexual conduct and homosexuals. The more important issue, perhaps,
is whether it should at least be tried.

**V. CONCLUSION**

The issue of homosexual conduct in the armed forces continues to spark a
good deal of debate and controversy, both within the military community
and the public at large. The military regulates homosexual conduct
through the application of two distinct but related provisions. The
first set of prohibitions is contained in the criminal provisions of the
UCMJ that are facially neutral with regard to homosexual and
heterosexual conduct. The second set of prohibitions is contained in the
current administrative discharge policy, codified at 10 U.S.C §654.
Premised upon the need to remove members who engage in or have a
propensity to engage in homosexual conduct in order to preserve unit
cohesion and good order and discipline, the discharge policy has been
subjected to numerous constitutional challenges in the federal courts.
The Second Circuit entertained the latest challenge in *Able v. United
States*, and ultimately upheld both the act prohibition and the
statement presumption of the policy against Equal Protection and First
Amendment challenges.

Similar to when it takes personnel actions against civilian government
employees, the military is permitted to discharge service members who
pose potential disruptions to good order and discipline. The relevant
inquiry is *whether* homosexual conduct is detrimental to the
accomplishment of the military mission, and not whether it *should*
provoke such a reaction within the units. Although advocates may present
evidence to refute the necessity for the discharge policy, the courts
typically grant the military substantial deference in the exercise of
its professional judgment. Consequently, the military *can* discharge a
member if he or she engages in or has a propensity to engage in
homosexual conduct so long as the potential disruption to military
readiness is present.

The more controversial issue is whether the military *should* continue
to discharge members who engage in homosexual conduct. Undoubtedly, the
military should and must take whatever corrective action necessary to
preserve unit cohesion, good order and discipline, and the readiness of
the armed forces. Since the policy is based upon the reaction of other
military members, the disruption can be alleviated by the removal of the
homosexual members. It could also be alleviated if the remainder of the
force displayed an apathetic, if not tolerant, demeanor towards
homosexual members in the unit. Including sexual orientation in the
current antidiscrimination and tolerance program may accomplish this
goal. Given the recent Executive Order, a program would appear to be
necessary for those members who supervise or interact with civilian
employees. It may also display a good faith effort on the part of the
military to dispel the disruption through alternative means. While
supplementing the current toleration efforts may never be successful,
perhaps it should at least be tried.

[^1]: \* *Captain Carr (B.S., United States Air Force Academy; M.P.P.,
    John F. Kennedy School of Government, Harvard University; J.D.,
    Harvard Law School) is an Assistant Staff Judge Advocate at
    Ellsworth Air Force Base, South Dakota. He is a member of the Bar of
    the Commonwealth of Massachusetts. Portions of this article are
    supplemented by the author's analysis in Free Speech in the Military
    Community: Striking A Balance Between Personal Rights and Military
    Necessity, published at 45 [A.F. L. Rev]{.smallcaps}. 303 (1998).*

    ^?^ Barry M. Goldwater, *The Gay Ban: Just Plain Un-American*,
    W[ash. Post,]{.smallcaps} June 10, 1993, at A23.

[^2]: Gary L. Bauer, *Gays Don't Belong in the Military*, W[ash.
    Post,]{.smallcaps} June 26, 1993, at A23.

[^3]: Goldwater, *supra* note 1.

[^4]: [Barry M. Goldwater, Goldwater]{.smallcaps} 334-40, 353-57 (1988).

[^5]: Goldwater, *supra* note 1.

[^6]: Remarks Announcing the New Policy on Gays and Lesbians in the
    Military, 29 [Weekly Comp. Pres. Doc.]{.smallcaps} 1369 (July 19,
    1993) \[hereinafter Remarks Announcing the New Policy\].

[^7]: Barton Gellman, *Clinton Says He'll "Consult" On Allowing Gays in
    Military; Advisers Warn of Likely Repercussions*, [Wash.
    Post]{.smallcaps}, Nov. 13, 1992, at A1.

[^8]: 10 U.S.C. § 654(b)(1) (1998).

[^9]: *Id.* § 654(b)(2).

[^10]: *Id.* § 654(b)(3).

[^11]: *See, e.g.,* Major Jeffrey S. Davis, *Military Policy Toward
    Homosexuals: Scientific, Historical, and Legal Perspectives*, 131
    [Mil. L. Rev]{.smallcaps}. 55 (1991); Cass R. Sunstein,
    *Homosexuality and the Constitution*, 70 [Ind. L.J]{.smallcaps}. 1
    (1994); Cass R. Sunstein, *Sexual Orientation and the Constitution:
    A Note on the Relationship Between Due Process and Equal
    Protection*, 55 [U. Chi. L. Rev.]{.smallcaps} 1161 (1988); Mark
    Strasser, *Unconstitutional? Don\'t Ask; If It Is, Don\'t Tell: On
    Deference, Rationality, and the Constitution*, 66 [U. Colo. L. Rev.
    375]{.smallcaps} (1995); Kenneth Williams, *Gays in the Military:
    The Legal Issues*, 28 [U.S.F.L. Rev]{.smallcaps}. 919 (1994); Linda
    Murphy Alexander, Note, *A Constitutional Battle: Will Clinton\'s
    \"Don\'t Ask, Don\'t Tell\" Policy Level The Field?*, 2 [San Diego
    Just. J]{.smallcaps}. 461 (1994); Alicia Christina Almeida, Note,
    Thomasson v. Perry*: Has the Fourth Circuit Taken \"Don\'t Ask,
    Don\'t Tell\" Too Literally?*, 75 [N.C.L. Rev.]{.smallcaps} 967
    (1992); Gary Frost, Notes, Steffan v. Aspin: *Gays in the Military
    Win a Victory - Or Did They?*, 30 [Tulsa L.J]{.smallcaps}. 171
    (1994); Kelly E. Henriksen, Note & Comment, *Gays, the Military, and
    Judicial Deference: When the Courts Must Reclaim Equal Protection as
    Their Area of Expertise*, 9 [Admin. L.J. Am. U.]{.smallcaps} 1273
    (Winter 1996); Walter John Krygowski, Comment, *Homosexuality and
    the Military Mission: The Failure of the \"Don\'t Ask, Don\'t Tell\"
    Policy*, 20 U. [Dayton L. Rev]{.smallcaps}. 875 (1995); Kenneth S.
    McLaughlin, Jr., Note, *Challenging the Constitutionality of
    President Clinton\'s Compromise: A Practical Alternative to the
    Military\'s \"Don\'t Ask, Don\'t Tell\" Policy,* 28 [J. Marshall L.
    Rev]{.smallcaps}. 179 (1994); Lawrence Kent Mendenhal, Note,
    *Misters Korematsu and Steffan: The Japanese Internment and the
    Military\'s Ban on Gays in the Armed Forces*, 70 [N.Y.U.L.
    Rev]{.smallcaps}. 196 (1995); Daniel R. Plane, Comments, *Don\'t
    Mess With \"Don\'t Ask, Don\'t Tell,\"* 79 [Marq. L.
    Rev]{.smallcaps}. 377 (1995); *Recent Cases--D.C. Circuit Upholds
    Military Discharge Based on a Statement of Homosexual Orientation*,
    108 [Harv. L. Rev]{.smallcaps}. 1779 (1995); Glenn D. Todd, Comment,
    *Don\'t Ask, Don\'t Tell, Don\'t Pursue: Is The Military\'s New
    Policy Towards Gays and Lesbians a Step Forward or Status Quo?*, 23
    [Cap. U.L. Rev]{.smallcaps}. 723 (1994); Scott W. Wachs, Note,
    *Slamming the Closet Door Shut:* Able, Thomasson *and the Reality of
    \"Don\'t Ask, Don\'t Tell,\"* 41 [N.Y.L. Sch. L. Rev.]{.smallcaps}
    309 (1996); Captain James M. Winner, Comment, *Beds With Sheets But
    No Covers: The Right to Privacy and the Military\'s Regulation of
    Adultery*, 31 [Loy. L.A. L. Rev]{.smallcaps}. 1073 (1998); Frank T.
    Pimentel, Essay, *The Constitution as Chaperon: President Clinton\'s
    Flirtation With Gays in the Military*, 20 [J. Legis.]{.smallcaps} 57
    (1994).

[^12]: *See, e.g.,* Daniel S. Alter, *Confronting the Queer and Present
    Danger: How to Use the First Amendment When Dealing With Issues of
    Sexual Orientation Speech and Military Service*, 22-SUM [Hum.
    Rts.]{.smallcaps} 22 (1995); Major Jeffrey S. Davis, *Military
    Policy Toward Homosexuals: Scientific, Historical, and Legal
    Perspectives*, 131 [Mil. L. Rev.]{.smallcaps} 55 (1991); Krygowski,
    *supra* note 11, at 875; David A. Schlueter, *Gays and Lesbians in
    the Military: A Rationally Based Solution to a Legal Rubik\'s Cube*,
    29 [Wake Forest L. Rev.]{.smallcaps} 393 (1994); Wachs, *supra* note
    11, at 309; Williams, *supra* note 11, at 919.

[^13]: Able v. United States, 880 F.Supp. 968 (E.D.N.Y. 1995), *vacated
    and remanded*, 88 F.3d 1280 (2nd Cir. 1996), *on remand, injunction
    granted*, 968 F.Supp. 850 (E.D.N.Y. 1997), *rev'd*, 155 F.3d 628
    (2nd Cir. 1998); Philips v. Perry, 106 F.3d 1420 (9th Cir. 1997);
    Thomasson v. Perry, 80 F.3d 915 (4th Cir. 1996), *cert. denied*, 519
    U.S. 498 (1996); Richenburg v. Perry, 97 F.3d 256 (8th Cir. 1996),
    *reh'g denied en banc*, No. 95-4181, 1997 U.S. App. LEXIS 1040 (8th
    Cir. 1997), *cert. denied*, 1997 LEXIS 4580 (1997).

[^14]: 880 F.Supp. 968.

[^15]: *Id*.

[^16]: Philips, 106 F.3d 1420; Thomasson, 80 F.3d 915; Richenburg, 97
    F.3d 256.

[^17]: Understanding that the Act was passed by Congress and is
    administered by the President, the Department of Defense, and the
    individual services, the terms "Congress," "the President," and "the
    military" will be used interchangeably for the purposes of this
    article.

[^18]: [Manual for Courts-Martial]{.smallcaps}, United States, Part IV,
    ¶¶ 1-113 (1998 ed.) \[hereinafter MCM\]).

[^19]: MCM, *supra* note 18, Rules for Courts-Martial 202, 203
    (outlining limitations on personal jurisdiction and limitations on
    subject-matter jurisdiction). *See also* Solorio v. United States,
    483 U.S. 435, 436 (1987) (holding that jurisdiction in
    courts-martial depends solely on the accused's status as a person
    subject to the UCMJ and not on the "service-connection" of the
    offense). Affirming an officer's conviction under Article 133, UCMJ,
    the court noted that over a century ago the Supreme Court "upheld
    the constitutional authority of Congress to prohibit private or
    unofficial conduct by an officer which 'compromised' the person\'s
    standing as an officer 'and brought scandal or reproach upon the
    service.'\" United States v. Hartwig, 39 M.J. 125, 128-29 (C.M.A.
    1994) (quoting Smith v. Whitney, 116 U.S. 167, 185 (1886)).

[^20]: *See* Able v. United States, 968 F.Supp. 850, 855 (E.D.N.Y. 1997)
    (referring to Defendant's Responses to Plaintiff's Request for
    Admission, Exhibit PX-13, on pages 5-8); Philips, 106 F.3d at 1434
    n.3 (Fletcher, J., dissenting).

[^21]: MCM, *supra* note 18, Part IV, ¶ 51(a).

[^22]: *Id.* Part IV, ¶ 51 (c).

[^23]: United States v. Scoby, 5 M.J. 160 (C.M.A. 1978) ("We conclude
    that the conduct prohibited by Article 125 is sufficiently defined
    as to be understood by a person of ordinary intelligence in the
    military community and is, therefore, not unconstitutionally
    vague.").

[^24]: United States v. Fagg, 34 M.J. 179 (C.M.A. 1992) (relying upon
    Bowers v. Hardwick, 478 U.S. 186 (1986), *cert. denied*, 506 U.S.
    829 (1992); United States v. Henderson, 34 M.J. 174 (C.M.A. 1992).
    In *Henderson*, the court found that fellatio was within the scope
    of Article 125, UCMJ. Consequently, "absent authority from the
    Supreme Court, we cannot declare that there is a right to privacy in
    the Constitution that invalidates an Act of Congress outlawing
    fellatio." Henderson, 34 M.J. at 178. The court noted, however, that
    Congress "is free to modify its statute if it chooses, and the
    Executive could limit prosecution." *Id.* The court explained that
    its duty was to interpret statutes and not debate the merits of the
    policy, and the court perceived no basis to invalidate the statute
    under the Constitution. *Id.*

[^25]: MCM, *supra* note 18, Part IV, ¶ 51(e)(4). If the act is
    committed by force and without consent, or with a child under the
    age of 12 years at the time of the offense, the maximum punishment
    is dishonorable discharge, forfeiture of all pay and allowances, and
    confinement for life. If the act is committed with a child who, at
    the time of the offense, has attained the age of 12 but is under the
    age of 16, the maximum punishment is dishonorable discharge,
    forfeiture of all pay and allowances, and confinement for 20 years.
    *Id.* Part IV, ¶ 51(e)(1) - (e)(3).

[^26]: *See* Able, 968 F.Supp. at 855 (referring to Defendant's
    Responses to Plaintiff's Request for Admission, exhibit. PX-13, on
    pages 5-8); Philips, 106 F.3d at 1434 n.3 (Fletcher, J.,
    dissenting).

[^27]: Nan D. Hunter, *Life After Hardwick*, 27 [Harv. C.R.-C.L. L.
    Rev.]{.smallcaps} 531, 544 n.52 (1992) (citing [Philip Blumstein &
    Pepper Schwartz, American Couples]{.smallcaps} 236, 242 (1983)).

[^28]: Hunter, *supra* note 27, at 544 n.52.

[^29]: Able, 968 F.Supp. at 864 (citing [Robert T. Michael et al., Sex
    In America]{.smallcaps} 139-41 (1994)). The study's distinction
    between active and passive oral sex is not relevant to this
    examination.

[^30]: Gary Bauer claims that "\[f\]ew if any of the homosexuals who
    have been discharged deny engaging in sodomy, a felony under the
    Uniform Code of Military Justice." Bauer, *supra* note 2, at A23. If
    the data is correct and sexual orientation cannot be used as a proxy
    for criminal behavior, his claim should be that few if any *military
    members* could deny engaging in sodomy.

[^31]: MCM, *supra* note 18, Part IV, ¶ 17(a). The explanation states
    that assault, improper punishment, and sexual harassment may
    constitute the offense. *Id.* Part IV, ¶ 17(c)(2). *See*, *e.g.,*
    United States v. Coleman, 48 M.J. 420 (1998) (appellant convicted of
    two specifications of maltreatment of a subordinate); United States
    v. Blanchard, 48 M.J. 306 (1998) (appellant convicted of one
    specification of maltreatment of a subordinate). For examinations of
    sexual harassment prosecutions in the military, see Lieutenant
    Commander J. Richard Chema, *Arresting \"Tailhook\": The Prosecution
    of Sexual Harassment in the Military*, 140 [Mil. L.
    Rev.]{.smallcaps} 1 (1993); Mary C. Griffin, Note, *Making the Army
    Safe for Diversity: A Title VII Remedy for Discrimination in the
    Military*, 96 [Yale L.J.]{.smallcaps} 2082 (1987).

[^32]: MCM, *supra* note 18, Part IV, ¶ 45(a).

[^33]: *Id.* Part IV, ¶ 45(e)(1).

[^34]: *Id.* Part IV, ¶ 59 (a). Narrowing the broad language of this
    Article, military courts have required that the underlying conduct
    must have "double effect and significance." United States v. Howe,
    37 C.M.R. 429, 441-42 (C.M.A. 1967). As one commentator explained:

    > Though it need not amount to a crime, it must offend so seriously
    > against law, justice, morality or decorum as to expose to
    > disgrace, socially or as a man, the offender, and at the same time
    > must be of such a nature or committed under such a circumstance as
    > to bring dishonor or disrepute upon the military profession.

    [William Winthrop, Military Law and Precedents]{.smallcaps} 711-12
    (2d ed. 1920). For an excellent discussion of the historical
    development and rationale supporting Articles 133 and 134, UCMJ, see
    Major Keithe E. Nelson, *Conduct Expected of an Officer and a
    Gentleman: Ambiguity*, 12 [A.F. L. Rev.]{.smallcaps} 124 (1970).

[^35]: *See, e.g.,* United States v. Modesto, 39 M.J. 1055, 1061
    (A.C.M.R. 1994) (upholding the conviction of an officer charged with
    cross-dressing in public which dishonored or disgraced him
    personally and seriously comprised his standing as an officer),
    *aff'd*, 43 M.J. 315 (1995).

[^36]: *See, e.g.,* United States v. Hartwig, 39 M.J. 125 (C.M.A. 1994).
    In *Hartwig*, the United States Court of Military Appeals (now the
    United States Court of Appeals for the Armed Forces) upheld the
    conviction of a captain who responded to the letter of a 14-year-old
    school girl with a letter that contained strong sexual overtones and
    a request for the girl to send a nude picture of herself to him.
    *Id*. at 127. The court found that "the private nature of his letter
    neither clothes it with First Amendment protection nor excludes it
    from the ambit of Article 133." *Id.* at 128. *See also* United
    States v. Moore, 38 M.J. 490 (C.M.A. 1994) (upholding conviction of
    officer for sexually explicit language described as "not simply
    amorous banter between two long-time lovers; rather it was demeaning
    vulgarity interwoven with threats and demands for money and sex").

[^37]: MCM, *supra* note 18, Part IV, ¶ 60(a). *See generally* James K.
    Gaynor, *Prejudicial and Discreditable Military Conduct: A Critical
    Appraisal of the General Article*, 22 [Hastings L.J.]{.smallcaps}
    259 (1971).

[^38]: MCM, *supra* note 18, Part IV, ¶ 60(a)*.*

[^39]: *Id.*

[^40]: *Id.* Part IV, ¶ 62. *See generally* Winner, *supra* note
    [11]{.smallcaps}.

[^41]: MCM, *supra* note 18, Part IV, ¶ 63.

[^42]: *Id.* Part IV, ¶ 65.

[^43]: *Id.* Part IV, ¶ 69.

[^44]: *Id.* Part IV, ¶ 83.

[^45]: *Id.* Part IV, ¶ 87. *See, e.g.,* United States v. Orben, 28 M.J.
    172, 175 (C.M.A. 1989) (holding that under the circumstances,
    appellant's display of nonpornographic or obscene pictures to minor
    constituted taking indecent liberties when accompanied by behavior
    and language demonstrating intent to arouse his own sexual passions,
    those of the child, or both).

[^46]: MCM, *supra* note 18, Part IV, ¶ 88.

[^47]: *Id.* Part IV, ¶ 89. *See, e.g.,* United States v. Caver, 41 M.J.
    556, 561 (N.M.C.C.A. 1994) ("considering the factors set forth in
    the record, including the context of the utterance, the intent and
    effect of the communication, and applying community standards,"
    accused's use of the term "bitch" was indecent); United States v.
    Gill, 40 M.J. 835, 837 (A.F.C.M.R. 1994) (holding that it is
    sufficient that the private communications between consenting adults
    were indecent on their face and were prejudicial to good order and
    discipline, as clearly established by the testimony of the two
    victims); United States v. Durham, ACM No. 28224, 1990 CMR LEXIS
    1493 (A.F.C.M.R. 1990) (per curiam) (summarily rejecting appellant's
    argument that his indecent language specifications violate his First
    Amendment right to free speech).

[^48]: MCM, *supra* note 18, Part IV, ¶ 90.

[^49]: From 1982 until 1993, the administrative discharge of homosexual
    officers was governed by Department of Defense Directive 1332.30,
    Separation of Regular and Reserve Commissioned Officers, pt. 1, sec.
    H (1982). The administrative discharge of enlisted members was
    outlined in Department of Defense Directive 1332.14, Enlisted
    Administrative Separations, pt. 1, sec. H (1982). Explaining the
    basis for discharge, Department of Defense Directive 1332.14, pt. 1,
    sec. H, ¶ 1.a, began by simply stating that "\[h\]omosexuality is
    incompatible with military service." It further explained that
    "\[t\]he presence in the military environment of persons who engage
    in homosexual conduct or who, by their statements, demonstrate a
    propensity to engage in homosexual conduct, seriously impairs the
    accomplishment of the military mission." *Id.* Specifically, the
    presence in the military of individuals who engage in, or have a
    propensity to engage in, homosexual conduct:

    > 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
    > acceptability of military service; and to prevent breaches of
    > security.

    *Id.*

[^50]: Remarks Announcing the New Policy, *supra* note 6, at 1369.

[^51]: *Id.*

[^52]: Ann Devroy & Michael Isikoff, *Bush, Perot Face Increasing
    Pressure on Issue of Homosexuality*, [Wash. Post]{.smallcaps}, July
    8, 1992, at A11. Reportedly, President Bush was under pressure from
    elements of the conservative Christian Coalition to directly attack
    homosexuality. *Id.* *See also* Thomas B. Edsall, *Gay Rights and
    the Religious Right; Administration Is Under Pressure as Issue
    Divides Fundamentalists*, [Wash. Post]{.smallcaps}, Aug. 10, 1992,
    at A10.

[^53]: Michael Isikoff, *Gays Mobilizing for Clinton as Rights Become an
    Issue*, [Wash. Post]{.smallcaps}, Sept. 28, 1992, at A1; Bill
    McAllister, *Gay Rights Groups Applaud Clinton's Win; Arkansas
    Governor Said to Get 72 Percent of Homosexual Voters*, [Wash.
    Post]{.smallcaps}, Nov. 5, 1992, at A30.

[^54]: *For the Record*, [Wash. Post]{.smallcaps}, Nov. 13, 1992, at
    A26. Speaker Foley was quoted in a Cable News Network (CNN)
    interview with Bob Cain as stating:

    > I'm in favor of the president revoking the executive order that
    > bars gay and lesbians from serving in the military, yes, and I
    > think President Clinton will do that. And I think that after it's
    > done, within a matter of a very few months, the whole issue will
    > disappear because gay and lesbian service people have served with
    > distinction and ability and honor in the service when they weren't
    > known, and there isn't any, in my view, reason to continue this
    > rather old and unjustified barrier.

    *Id.*

[^55]: Al Kamen, *Some Expert Advice for Clinton: Get It Right Before
    Jan. 20*, [Wash. Post]{.smallcaps}, Nov. 5, 1992, at A21; Barton
    Gellman, *Security Issues Loom on the Horizon; President-Elect Could
    Be Diverted From Emphasis on Economy*, [Wash. Post]{.smallcaps},
    Nov. 7, 1992, at A1.

[^56]: Gellman, *supra* note 7, at A1.

[^57]: *Id.*

[^58]: *I Intend to Look Beyond Partisanship . . . . to Help Guide Our
    Nation*, [Wash. Post]{.smallcaps}, Nov. 13, 1992, at A10.

[^59]: Tom Kenworthy, *Nunn, Dole Urge Caution On Military Gay Policy;
    Study Sought Before Clinton Rescinds Ban*, [Wash. Post]{.smallcaps},
    Nov. 16, 1992, at A11.

[^60]: John Lancaster, *Powell Relents on Defense Cut, But Not On Gays*,
    [Wash. Post]{.smallcaps}, Nov. 19, 1992, at A16.

[^61]: The President's News Conference, 29 [Weekly Comp. Pres.
    Doc.]{.smallcaps} 108 (Jan. 29, 1993) \[hereinafter The President's
    News Conference\].

[^62]: *Id.*

[^63]: *Id.* *See also* Ann Devroy, *Joint Chiefs Voice Concern to
    Clinton On Lifting Gay Ban; Vow Reiterated; Senators Warn of Fight*,
    [Wash. Post]{.smallcaps}, Jan. 26, 1993, at A1; Barton Gellman,
    *Clinton Sets 2-Phase Plan To Allow Gays in Military; Ban to End
    While Formal Order is Delayed*, [Wash. Post]{.smallcaps}, Jan. 22,
    1993, at A1.

[^64]: Devroy, *supra* note 63, at A1; Gellman, *supra* note 63, at A1.

[^65]: The President's News Conference, *supra* note 61, at 108 ("Now, I
    would remind you that any President's Executive Order can be
    overturned by an act of Congress. The President can then veto the
    act of Congress and try to have his veto sustained if the act stands
    on its own as a simple issue that could always be vetoed.").

[^66]: *Id.*

[^67]: *Id.*

[^68]: Echoing the feelings of many, General H. Norman Schwarzkopf,
    Ret., United States Army, testified that:

    > What keeps soldiers in their foxholes rather than running away in
    > the face of mass waves of attacking enemy? What keeps the Marines
    > attacking up the hills under the withering machine gun fire? What
    > keeps the pilots flying through heavy surface-to-air missile fire
    > to deliver the bombs on target? It's a simple fact that they don't
    > want to let down their buddies on the left or the right. . . .
    > It's called unit cohesion, and in my 40 years of Army service in
    > three different wars, I've become convinced that it is the single
    > most important factor in a unit\'s ability to succeed on the
    > battlefield. Anyone who disputes this fact may have been to war,
    > but certainly never led troops into battle.
    >
    > Whether we like it or not, in my years of military service I've
    > experienced the fact that the introduction of an open homosexual
    > into a small unit immediately polarizes that unit and destroys the
    > very bonding that is so important for the unit's survival in time
    > of war. For whatever reason, the organization is divided into a
    > majority who oppose, a small minority who approve, and other
    > groups who either don't care or just wish the problem would go
    > away. And I don't find this surprising, given the divisiveness
    > over this issue that I've encountered in our nation in the past
    > year. The attitudes of our servicemen and women simply reflect, in
    > my opinion, the attitudes that I've encountered in the American
    > people.
    >
    > . . . \[I\]n every case that I am familiar with, and there are
    > many, when it became known in a unit that someone was openly
    > homosexual, polarization occurred, violence sometimes followed,
    > morale broke down and unit effectiveness suffered. Plain and
    > simple, that has been my experience.

    *Policy Concerning Homosexuality in the Armed Forces: Hearings
    Before the Senate Committee on Armed Services*, 103d Cong., 2d Sess.
    (May 11, 1993) (testimony of General H. Norman Schwarzkopf, Ret.,
    United States Army).

[^69]: Remarks Announcing the New Policy, *supra* note 6, at 1369.

[^70]: *Id.*

[^71]: *Id.*

[^72]: *Id.*

[^73]: National Defense Authorization Act for Fiscal Year 1994, Pub. L.
    103-160, div. A, tit. V, subtit. G, § 571(a)(1), 107 Stat. 1670
    (codified at 10 U.S.C. § 654 (1993)).

[^74]: Findings one through thirteen provide that:

    > \(1\) Section 8 of article I of the Constitution of the United
    > States commits exclusively to the Congress the powers to raise and
    > support armies, provide and maintain a Navy, and make rules for
    > the government and regulation of the land and naval forces.
    >
    > \(2\) There is no constitutional right to serve in the armed
    > forces.
    >
    > \(3\) Pursuant to the powers conferred by section 8 of article I
    > of the Constitution of the United States, it lies within the
    > discretion of the Congress to establish qualifications for and
    > conditions of service in the armed forces.
    >
    > \(4\) The primary purpose of the armed forces is to prepare for
    > and to prevail in combat should the need arise.
    >
    > \(5\) The conduct of military operations requires members of the
    > armed forces to make extraordinary sacrifices, including the
    > ultimate sacrifice, in order to provide for the common defense.
    >
    > \(6\) Success in combat requires military units that are
    > characterized by high morale, good order and discipline, and unit
    > cohesion.
    >
    > \(7\) One of the most critical elements in combat capability is
    > unit cohesion, that is, the bonds of trust among individual
    > service members that make the combat effectiveness of a military
    > unit greater than the sum of the combat effectiveness of the
    > individual unit members.
    >
    > \(8\) Military life is fundamentally different from civilian life
    > in that --
    >
    > \(A\) the extraordinary responsibilities of the armed forces, the
    > unique conditions of military service, and the critical role of
    > unit cohesion, require that the military community, while subject
    > to civilian control, exist as a specialized society; and
    >
    > \(B\) the military society is characterized by its own laws,
    > rules, customs, and traditions, including numerous restrictions on
    > personal behavior, that would not be acceptable in civilian
    > society.
    >
    > \(9\) The standards of conduct for members of the armed forces
    > regulate a member\'s life for 24 hours each day beginning at the
    > moment the member enters military status and not ending until that
    > person is discharged or otherwise separated from the armed forces.
    >
    > \(10\) Those standards of conduct, including the Uniform Code of
    > Military Justice, apply to a member of the armed forces at all
    > times that the member has a military status, whether the member is
    > on base or off base, and whether the member is on duty or off
    > duty.
    >
    > \(11\) The pervasive application of the standards of conduct is
    > necessary because members of the armed forces must be ready at all
    > times for worldwide deployment to a combat environment.
    >
    > \(12\) The worldwide deployment of United States military forces,
    > the international responsibilities of the United States, and the
    > potential for involvement of the armed forces in actual combat
    > routinely make it necessary for members of the armed forces
    > involuntarily to accept living conditions and working conditions
    > that are often spartan, primitive, and characterized by forced
    > intimacy with little or no privacy.
    >
    > \(13\) The prohibition against homosexual conduct is a
    > longstanding element of military law that continues to be
    > necessary in the unique circumstances of military service.

    10 U.S.C. § 654(a)(1)-(13).

[^75]: *Id.* § 654(a)(14)-(15).

[^76]: *Id.* § 654(f)(1).

[^77]: *Id.* § 654(b)(1).

[^78]: *Id.* § 654(f)(3)(a)-(b).

[^79]: *Id.* § 654(b)(1)(a)-(e).

[^80]: *Id.* § 654(f)(1).

[^81]: *Id.* § 654(f)(2).

[^82]: *Id.* § 654(b)(2).

[^83]: *Id.*

[^84]: *Id.* § 654(b)(3).

[^85]: Department of Defense Directive 1304.26, Qualification Standards
    for Enlistment, Appointment, and Induction (Dec. 21, 1993).

[^86]: *Id.* encl.1, E1.2.8.1.

[^87]: *Id.* encl.1, E1.2.8.4.

[^88]: Department of Defense Directive 1332.14 \[hereinafter DODD
    1332.14\], Enlisted Administrative Separations (Dec. 21, 1993). *See
    also* Department of Defense Directive 1332.30, Separation of Regular
    and Reserve Commissioned Officers (Mar. 14, 1997).

[^89]: DODD 1332.14, *supra* note 88, encl. 3, atch. 1, E3.A1.1.8.1.2.2.

[^90]: *Id.* encl. 3, atch. 1, E3.A1.1.8.3. An Under Other Than
    Honorable Conditions characterization is appropriate if there is a
    finding that,

    > during the current term of service the member attempted,
    > solicited, or committed a homosexual act . . . by using force,
    > coercion, or intimidation, . . . with a person under 16 years of
    > age, . . . with a subordinate in circumstances that violate
    > customary military superior-subordinate relationships, . . .
    > openly in public view, . . . for compensation, . . . aboard a
    > military vessel or aircraft, . . . or in another location subject
    > to military control under aggravating circumstances noted in the
    > finding that have an adverse impact on discipline, good order, or
    > morale comparable to the impact of such activity aboard a vessel
    > or aircraft.

    *Id.* encl. 3, atch. 1, E3.A1.1.8.3.1-7.

[^91]: *Id.* encl. 3, atch. 1, E3.A1.1.8.4.6.7.

[^92]: Exec. Order No[.]{.smallcaps} 13,087, 63 Fed. Reg. 30097 (June 2,
    1998).

[^93]: The original Executive Order was signed by President Richard
    Nixon. *See* Exec. Order No[.]{.smallcaps} 11,478, 34 Fed. Reg.
    12985 (Aug. 8, 1969).

[^94]: Statement on Signing an Executive Order on Equal Employment
    Opportunity in the Federal Government, 34 [Weekly Comp. Pres.
    Doc.]{.smallcaps} 994 (May 28, 1998).

[^95]: *Id.*

[^96]: Statement on House Action on the Hefley Amendment, 34 [Weekly
    Comp. Pres. Doc.]{.smallcaps} 1576 (Aug. 6, 1998). The Hefley
    Amendment would have overturned Executive Order 13,087, but was
    defeated in the House of Representatives. *Id.*

[^97]: *See, e.g.,* Vojvodich v. Lopez, 48 F.3d 879 (5th Cir. 1995);
    Horton v. Taylor, 767 F.2d 471 (8th Cir. 1985), *aff'd,* 817 F.2d
    476 (8th Cir. 1987); Hughes v. Whitmer, 714 F.2d 1407 (8th Cir.
    1983).

[^98]: *See, e.g.,* Johnson v. Department of Justice, 65 M.S.P.R. 46
    (1994) (determining racially derogatory comments about co-worker
    made in the presence of other agency personnel while on duty did not
    relate to matter of public concern); Means v. Department of Labor,
    60 M.S.P.R. 108 (1993) (concluding disruptive, insubordinate, and
    disrespectful conduct and speech relating to workload and
    performance standards were not related to matter of public concern);
    Jackson v. Small Business Administration, 40 M.S.P.R. 137 (1989);
    Sigman v. Department of the Air Force, 37 M.S.P.R. 352 (1988)
    (concluding speech that addresses internal agency complaints but not
    issues of concern to the community do not relate to matters of
    public concern), *aff'd*, 868 F.2d 1278 (Fed. Cir. 1989)
    (unpublished disposition); Mings v. Department of Justice, 813 F.2d
    384 (5th Cir. 1987); Barnes v. Department of the Army, 22 M.S.P.R.
    243 (1984); Curry v. Department of the Navy, 13 M.S.P.R. 327 (1982).

[^99]: In *Board of County Commissioners v. Umbehr*, 518 U.S. 668
    (1996), the Supreme Court held that the First Amendment protects
    independent contractors from government termination or prevention of
    automatic renewal of at-will contracts in retaliation for
    contractor's speech, and such claims will be evaluated under the
    balancing test outlined in *Pickering v. Board of Education*, 391
    U.S. 563 (1968).

[^100]: 391 U.S. 563 (1968).

[^101]: *Id.* at 568.

[^102]: *Id.* at 564. The letter was highly critical of the way school
    officials had handled past bond issue proposals and the allocation
    of money between educational and athletic programs. *Id.* at 566.

[^103]: *Id.* at 571.

[^104]: *Id.* at 570.

[^105]: *Id.* at 571. The Court also noted that teachers are more likely
    to be informed on the issue of school fund allocation and should be
    able to speak freely on the issue. *Id.* at 571-72. Although facts
    in the letter were false, Pickering did not make any claim of
    special access or knowledge and the information was contained in the
    public record. *Id.* at 572.

[^106]: *Id.* at 572-73 (footnote omitted).

[^107]: 483 U.S. 378 (1987) (5-4 opinion).

[^108]: *Id.* at 381.

[^109]: *Id.* at 382.

[^110]: *Id.* at 386.

[^111]: *Id.* at 387 (citing New York Times v. Sullivan, 376 U.S. 254,
    270 (1964)). The Court also noted that the private nature of the
    conversation does not prevent the statement from addressing a matter
    of public concern. *Id*. at 386 n.11.

[^112]: *Id.* at 388-89. The Court stated that where "an employee serves
    no confidential, policymaking, or public contact role, the danger of
    the agency's successful functioning from that employee's private
    speech is minimal." *Id.* at 390-91. In his concurring opinion,
    Justice Powell explained that he thought it was unnecessary to
    engage in the *Pickering* analysis. His opinion was clear:

    > If a statement is on a matter of public concern, as it was here,
    > it will be an unusual case where the employer's legitimate
    > interests will be so great as to justify punishing an employee for
    > this type of private speech that routinely takes place at all
    > levels in the workplace. The risk that a single, off-hand comment
    > directed at only one other worker will lower morale, disrupt the
    > work force, or otherwise undermine the mission of the office
    > borders on fanciful.

    *Id.* at 393 (Powell, J., concurring). Writing in dissent, Justice
    Scalia was joined by Chief Justice Rehnquist and Justices White and
    O'Connor. Justice Scalia cautioned that the Court's cited statement
    "is simply contrary to reason and experience." *Id.* at 400 (Scalia,
    J., dissenting). He agreed with the proposition that the First
    Amendment does not require law enforcement agencies to permit one of
    its employees to "ride with the cops and cheer the robbers." *Id.*
    at 394 (Scalia, J., dissenting). Furthermore, he pointed out that it
    "boggles the mind" to think that McPherson had the right to say what
    she did, "so that she could not only not be fired for it, but could
    not be formally reprimanded for it, even prevented from saying it
    endlessly into the future." *Id.* at 399 (Scalia, J., dissenting).
    Even if the employment decision was intemperate, "we are not sitting
    as a panel to develop sound principles of proportionality for
    adverse actions in the state civil service." *Id*. (Scalia, J.,
    dissenting)*.*

[^113]: 461 U.S. 138 (1983) (5-4 opinion).

[^114]: *Id*. at 141.

[^115]: *Id.*

[^116]: *Id.* at 154. The one question asked whether assistant district
    attorneys "ever feel pressured to work in political campaigns on
    behalf of office supported candidates." *Id.* at 149.

[^117]: *Id.* at 148-49.

[^118]: *Id.* at 154.

[^119]: *Id.* at 151 (quoting Arnett v. Kennedy, 416 U.S. 134, 168
    (1974) (Kennedy, J., concurring)).

[^120]: *Id*. at 151-52.

[^121]: *Id.* at 147.

[^122]: Reportedly, "Pentagon officials \[were\] considering a proposal
    to create a personnel system that would place civilian employees
    under some military rules." The proposal would not, however, place
    civilians under the UCMJ. Lisa Daniel, *Civilian Workers May Face
    Military Rules*, [A. F. Times]{.smallcaps}, Sep. 15, 1997, at 11.

[^123]: 37 M.S.P.R. 352 (1988), *aff'd,* 868 F.2d 1278 (Fed. Cir. 1989)
    (unpublished disposition). The employee's actions included writing a
    four-page memorandum that "expressed her concern over her heavy
    workload, personal problems, and management's internal personnel
    policies regarding distribution of work." *Id.* at 354. For
    additional cases, see *supra* note 98.

[^124]: *Id.* at 355.

[^125]: *Id.* at 356.

[^126]: *Id.*

[^127]: 5 U.S.C.S. § 7513 (1998); 5 C.F.R. § 731.201(b) (1998).

[^128]: 417 F.2d 1161 (D.C. Cir. 1969).

[^129]: *Id.* at 1162.

[^130]: *Id.* Norton was stopped by the Morals Squad for a traffic
    violation near Lafayette Square in Washington D.C. After the man he
    had picked up told the officers that Norton had felt his leg and
    invited him to Norton's apartment, both Norton and the man were
    arrested and taken to the Morals Office to be issued traffic
    violation notices. The police interrogated both men for about two
    hours. The head of the Morals Squad called the NASA Security Chief
    who arrived at about 3 [a.m]{.smallcaps}. and watched the last of
    the interrogation incognito. Continuing to deny that he had made a
    homosexual advance, Norton was taken to a NASA office building and
    questioned until 6 [a.m.]{.smallcaps} During this time, he allegedly
    admitted to engaging in certain homosexual acts since high school.
    *Id.* at 1162-63.

[^131]: *Id.* at 1162.

[^132]: *Id.*

[^133]: *Id.* at 1165. The reference to Caesar is similar to that
    contained in *Matthew* 22:21; "Render therefore unto Caesar the
    things which are Caesar's; and unto God the things that are God's."

[^134]: Norton, 417 F.2d at 1165. The court explained that such a notion
    is "at war with the elementary concepts of liberty, privacy, and
    diversity." *Id.*

[^135]: *Id.*

[^136]: *Id.* at 1166.

[^137]: *Id.* The court explained, however, that "\[w\]hether or not
    such potential consequences would justify removal, they are at least
    broadly relevant to 'the efficiency of the service.'" *Id.* NASA
    presented no evidence refuting Norton's ability to perform his job
    or the unfavorable reactions of coworkers. Instead, it relied on the
    potential embarrassment on the agency in the eyes of the public.
    *Id.* Although the court had no doubt that "NASA blushes whenever
    one of its own is caught in *flagrante delictu*," the agency had
    failed to provide sufficient evidence of a "specific connection"
    between Norton's conduct and the efficiency of NASA's operations.
    *Id.* at 1167. Since Norton's conduct was extremely infrequent and
    neither openly nor carelessly flaunted in public, the risk of
    embarrassment was minimal. *Id.* Consequently, the court ruled that
    Norton had been unlawfully dismissed. The court emphasized that:

    > We do not hold that homosexual conduct may never be cause for
    > dismissal of a protected federal employee. Nor do we even conclude
    > that potential embarrassment from an employee's private conduct
    > may in no circumstances affect the efficiency of the service. What
    > we do say is that, if the statute is to have any force, an agency
    > cannot support a dismissal as promoting the efficiency of the
    > service merely by turning its head and crying "shame."

    *Id.* at 1168.

[^138]: 114 F.3d 1097 (11th Cir. 1997) (refusing to supplement record
    with information from two newspaper articles that the Attorney
    General had admitted to having an adulterous affair), *reh'g
    denied,* 120 F.3d 211 (11th Cir. 1997).

[^139]: *Id.* at 1100.

[^140]: *Id.*

[^141]: *Id.* at 1101.

[^142]: *Id.*

[^143]: *Id.* at 1102 (citing Waters v. Churchill, 511 U.S. 661, 675-76
    (1994) (plurality opinion) ("The key to First Amendment analysis of
    government employment decisions . . . is this: The government's
    interest in achieving its goals as effectively and efficiently as
    possible is elevated from a relatively subordinate interest when it
    acts as sovereign to a significant one when its acts as employer.").

[^144]: *Id*. at 1103.

[^145]: *Id.* at 1104 (citing Bowers v. Hardwick, 478 U.S. 186, 190-92
    (1986) (finding criminal prosecution for homosexual sodomy did not
    violate substantive due process)).

[^146]: *Id*. at 1105.

[^147]: *Id.* The court also cited *McMullen v. Carson*, in which that
    court upheld a "sheriff's clerical employee's First Amendment
    interest in an off-duty statement that he was employed by the
    sheriff's office and was also a recruiter for the Ku Klux Klan was
    outweighed by the sheriff's interest in espirit de corps and the
    credibility in the community the sheriff policed." *Id*. at 1108
    (citing McMullen v. Carson, 754 F.2d 936, 938-40 (11th Cir. 1985)).
    The court further noted that nothing indicated that the "employee
    had engaged in a criminal act or that he had joined an organization
    . . . that had engaged in any criminal act." *Id*. at 1109.

[^148]: *Id.* at 1105-06.

[^149]: *Id.* at 1108.

[^150]: Philips v. Perry, 106 F.3d 1420 (9th Cir. 1997); Thomasson v.
    Perry, 80 F.3d 915 (4th Cir. 1996), *cert. denied*, 519 U.S. 498
    (1996); Richenburg v. Perry, 97 F.3d 256 (8th Cir. 1996), *reh'g
    denied en banc*, No. 95-4181, 1997 U.S. App. LEXIS 1040 (8th Cir.
    1997), *cert. denied*, 1997 LEXIS 4580 (1997).

[^151]: 880 F.Supp. 968 (E.D.N.Y. 1995), *vacated and remanded*, 88 F.3d
    1280 (2nd Cir. 1996), *on remand, injunction granted*, 968 F.Supp.
    850 (E.D.N.Y. 1997), *rev'd*, 155 F.3d 628 (2nd Cir. 1998).

[^152]: At all times, the United States Coast Guard is a military
    service and a branch of the armed forces. 14 U.S.C. §1 (1976).
    Furthermore, it is a service in the Department of Transportation,
    but operates as a service in the Navy upon declaration of war or
    when the President otherwise directs. 14 U.S.C. §§ 1, 3 (1990).

[^153]: Able, 880 F.Supp. at 970.

[^154]: Able v. United States, No. CV 94 0974 (E.D.N.Y. Mar. 6, 1995)
    (unreported).

[^155]: *Id.*

[^156]: Able v. United States, 847 F.Supp. 1038 (E.D.N.Y. 1994).

[^157]: Able v. United States, 863 F.Supp. 112 (E.D.N.Y. 1994).

[^158]: Able v. United States, 44 F.3d 128 (2nd Cir. 1995) (per curiam).

[^159]: *Id.*

[^160]: *Able*, No. CV 94 0974.

[^161]: Able, 880 F.Supp. at 970.

[^162]: *Id.* at 972.

[^163]: *Id.* at 973 (quoting Cohen v. California, 403 U.S. 15, 24
    (1971)).

[^164]: *Id*. at 973. When confronted with constitutional challenges to
    military regulations or criminal prosecutions, courts have displayed
    a substantial amount of deference to the government for two related
    reasons. The first reason is the responsibility imposed by the
    Constitution on the legislative and executive branches to administer
    the military. *See, e.g.,* Solorio v. United States, 483 U.S. 435,
    447 (1987) ("Decisions of this Court . . . have also emphasized that
    Congress has primary responsibility for the delicate task of
    balancing the rights of servicemen against the needs of the
    military."). The Supreme Court also stated:

    > Nor can it be denied that the imposing number of cases from this
    > Court suggest that judicial deference to such congressional
    > exercise of authority is at its apogee when legislative action
    > under the congressional authority to raise and support armies and
    > make rules and regulations for their governance is challenged.

    Rostker v. Goldberg, 453 U.S. 57, 70 (1981). "The responsibility for
    determining how best our Armed Forces shall attend to \[fighting or
    being ready to fight wars\] rests with Congress, see U.S.
    [Const.]{.smallcaps}, Art. I, § 8, cls. 12-14, and with the
    President. See U.S. [Const]{.smallcaps}. Art. II, § 2, cl. 1."
    Rostker, 453 U.S. at 71 (quoting Schlesinger v. Ballard, 419 U.S.
    498, 510 (1975)). The second reason is the concept of the military
    as a "separate community." The separate community rationale is based
    upon the unique military mission. *See, e.g.,* United States v.
    Priest, 45 C.M.R. 338, 344 (C.M.A. 1972) ("In the armed forces some
    restrictions exist for reasons that have no counterpart in the
    civilian community. . . . The armed forces depend on a command
    structure that at times must commit men to combat, not only
    hazarding their lives but ultimately involving the security of the
    Nation itself."). The rationale also relies on the critical
    importance of obedience and subordination. *See, e.g.,* Brown v.
    Glines, 444 U.S. 348, 354 (1980) ("To ensure that they always are
    capable of performing their mission promptly and reliably, the
    military services 'must insist upon a respect for duty and a
    discipline without counterpart in civilian life.'") (quoting
    Schlesinger v. Councilman, 420 U.S. 738, 757 (1975)); *see also*
    Parker v. Levy, 417 U.S. 733, 758 (1974) ("\[T\]he different
    character of the military community and of the military mission,"
    based upon the "fundamental necessity for obedience" and "necessity
    for imposition of discipline, may render permissible within the
    military that which would be constitutionally impermissible outside
    it."). The complimentary development of military custom also plays a
    role in the development of the separate community rationale. *See,
    e.g.,* Parker, 417 U.S. at 744 (In order to "maintain the discipline
    essential to perform its mission effectively, the military has
    developed what 'may not unfitly be called the customary military
    law' or 'general usage of the military service.'") (quoting Martin
    v. Mott, 12 Wheat. 19, 35, 6 L.Ed. 537 (1827)). *See generally*
    Captain John A. Carr, *Free Speech in the Military Community:
    Striking A Balance Between Personal Rights and Military Necessity*,
    45 [A.F. L. Rev.]{.smallcaps} 303 (1998); Lieutenant Colonel Michael
    H. Gilbert, *The Military and the Federal Judiciary: An Unexplored
    Part of the Civil-Military Relations Triangle*, 8 [A.F. Acad. J.
    Leg. Stud.]{.smallcaps} 197 (1997/1998); James M. Hirschhorn, *The
    Separate Community: Military Uniqueness and Servicemen's
    Constitutional Rights*, 62 [N.C. L. Rev.]{.smallcaps} 177 (1984);
    Edward F. Sherman, *The Military Courts and Servicemen's First
    Amendment Rights*, 22 [Hastings L.J.]{.smallcaps} 325 (1971); Earl
    Warren, *The Bill of Rights and the Military*, 37 [N.Y.U. L.
    Rev.]{.smallcaps} 181 (1962); Detlev F. Vagts, *Free Speech in the
    Armed Forces*, 57 [Colum. L. Rev.]{.smallcaps} 187 (1957); Donald N.
    Zillman and Edward J. Imwinkelried, *Constitutional Rights and
    Military Necessity: Reflections on the Society Apart*, [51 Notre
    Dame L. Rev.]{.smallcaps} 396, 397 (1976) \[hereinafter Zillman and
    Imwinkelried II\]; Donald N. Zillman and Edward J. Imwinkelried, *An
    Evolution in the First Amendment: Overbreadth Analysis and Free
    Speech Within the Military Community*, 54 [Tex. L. Rev.]{.smallcaps}
    42 (1975); Donald N. Zillman, *Free Speech and Military Command*,
    1977 [Utah L. Rev.]{.smallcaps} 423 (1977).

[^165]: Able, 880 F.Supp. at 973*.* In *Goldman v. Weinberger*, the
    Court pointed out that the special demands of "military life do not,
    of course, render entirely nugatory in the military context the
    guarantees of the First Amendment." Goldman v. Weinberger, 475 U.S.
    503, 507 (1986). Chief Justice Earl Warren wrote that the Supreme
    Court recognizes the "proposition that our citizens in uniform may
    not be stripped of basic rights simply because they have doffed
    their civilian clothes." Warren, *supra* note 164, at 188.
    Additionally, the Court of Military Appeals has stated that "the
    protections in the Bill of Rights, except those which are expressly
    or by necessary implication inapplicable, are available to members
    of our armed forces." United States v. Jacoby, 29 C.M.R. 244, 246-47
    (C.M.A. 1960).

    It has been noted that "the judiciary has become more sensitized to
    violations of individual rights and the perils of unchecked
    discretion." Zillman and Imwinkelried II, *supra* note 164, at 400.
    Recently, in fact, a number of judges have taken exception to the
    military's exercise of discretion, citing either outright abuse or
    selective enforcement. Regarding the issue of abuse, see *Rigdon v.
    Perry*, 962 F.Supp. 150, 165 (D.D.C. 1997) ("What we have here is
    the government's attempt to override the Constitution and the laws
    of the land.") (granting motion for summary judgment and preliminary
    injunction based on First Amendment freedom of speech and religion
    against military's attempt to prevent chaplain from urging
    congregation to contact Congress on pending legislation). Regarding
    the issue of selective enforcement, see *Holmes v. California Army
    National Guard*, 124 F.3d 1126, 1139 (9th Cir. 1997) (Reinhardt, J.,
    dissenting) ("From General Eisenhower on, up and down the ranks,
    even to Commander-in-Chief, there are many who would have had to
    forfeit their positions had the military's code of sexual conduct
    been strictly and honestly enforced.").

[^166]: Able, 880 F.Supp. at 973 (quoting Glines, 444 U.S. at 355).

[^167]: *Id*. at 974 (referring to the Senate Hearing 103-845 testimony
    of Secretary. of Defense Les Aspin; General H. Norman Schwarzkopf,
    Ret., United States Army; Major Kathleen Bergeron, United States
    Marine Corps; Chairman of the Joint Chiefs of Staff General Colin L.
    Powell, United States Army). For historical examinations of
    homosexuals in the military see [Allan Berube,]{.smallcaps} [Coming
    Out Under Fire: The History of Gay Men and Women in World War
    Two]{.smallcaps} (1990); [Lawrence R. Murphy, Perverts by Official
    Order: The Campaign Against Homosexuals by the United States
    Navy]{.smallcaps} (1988); [Randy Shilts, Conduct Unbecoming:
    Lesbians and Gays in the U.S. Military---Vietnam to the Persian
    Gulf]{.smallcaps} (1993) (cited in [William N. Eskridge, Jr., & Nan
    D. Hunter]{.smallcaps}, [Sexuality, Gender, and the Law]{.smallcaps}
    366 (1997)).

[^168]: Able, 880 F.Supp. at 974 (emphasis added).

[^169]: *Id.*

[^170]: *Id.*

[^171]: 370 U.S. 660 (1962).

[^172]: Able, 880 F.Supp. at 974.

[^173]: *Id*. at 975 (citing [Homosexuality: Research Implications for
    Public Policy]{.smallcaps} 2 (John C. Gonsiorek & James D. Weinrich
    eds., 1991)).

[^174]: *Id*. at 975 (referring to statement of Counsel to the
    Department of Defense Jamie Gorelick from Senate Hearing 103-845).

[^175]: *Id* (emphasis added).

[^176]: *Id.*

[^177]: *Id.*

[^178]: *Id.* (referring to statement of Counsel to the Department of
    Defense Jamie Gorelick from Senate Hearing 103-845).

[^179]: *Id.*

[^180]: *Id.* at 976.

[^181]: *Id.*

[^182]: *Id.*

[^183]: *Id.*

[^184]: *Id*. at 975*.*

[^185]: *Id.*

[^186]: *Id.* at 977.

[^187]: *Id.*

[^188]: *Id.*

[^189]: *Id*. at 977 (referring to the Senate Hearing 103-845 testimony
    of Major Kathleen Bergeron, United States Marine Corps; Captain
    Gordon Holder, United States Navy; Commander James Pledger, United
    States Navy; General John P. Otjen, United States Army; General H.
    Norman Schwarzkopf, Ret., United States Army; Chairman of the Joint
    Chiefs of Staff General Colin L. Powell, United States Army).

[^190]: *Id.* (referring to testimony of General H. Norman Schwarzkopf,
    Ret., United States Army, from Senate Hearing 103-845).

[^191]: *Id.* (referring to testimony of Chairman of the Joint Chiefs of
    Staff General Colin L. Powell, United States Army, from Senate
    Hearing 103-845).

[^192]: *Id*. at 978.

[^193]: *Id.*

[^194]: *Id.*

[^195]: *Id.* (referring to testimony of Fleet Master Chief Ronald
    Carter, United States Navy, General Gordon Sullivan, United States
    Army, and Major Kathleen Bergeron, United States Marine Corps, from
    Senate Hearing 103-845).

[^196]: *Id*. *See* *supra* notes 20-48 and accompanying text. To
    illustrate this point, Barry Goldwater commented that "the military
    has wasted a half-billion dollars over the past decade chasing down
    gays and running them out of the armed services." Goldwater, *supra*
    note 1, at A23. Gary L. Bauer, the president of the Family Research
    Council, responded by citing a study of 102 punitive discharges
    conducted by Retired General William Weise. Of the 102 punitive
    discharges, 85 percent involved non-consenting victims, 63 percent
    involved senior military personnel victimizing subordinates, and 49
    percent involved gays in the military who molested children. Bauer,
    *supra* note 2, at A23. The criminal prohibitions contained in the
    UCMJ, however, would adequately and justly punish the inappropriate
    behavior in each of the cited instances.

[^197]: Able, 880 F.Supp. at 978 (quoting RAND National Defense Research
    Institute, *Sexual Orientation and U.S. Military Personnel Policy:
    Options and Assessment* xxiv (1993) (internal quotation marks
    omitted)).

[^198]: *Id*. (citing RAND National Defense Research Institute, *Sexual
    Orientation and U.S. Military Personnel Policy: Options and
    Assessment* 14 (1993)).

[^199]: *Id*. at 979 (citing RAND National Defense Research Institute,
    *Sexual Orientation and U.S. Military Personnel Policy: Options and
    Assessment* 189 (1993)).

[^200]: *Id*. at 978 (citing General Accounting Office, GAO/NSIAD-92-98,
    [Defense Force Management, DoD's Policy on
    Homosexuality]{.smallcaps} 39-40 (Report to Congressional
    Requesters, June 1992)) \[hereinafter GAO: [DoD Policy on
    Homosexuality]{.smallcaps}\].

[^201]: *Id.*

[^202]: *Id.*

[^203]: *Id.*

[^204]: *Id.*

[^205]: *Id*. at 979*.*

[^206]: *Id.*

[^207]: *Id.* (referring to testimony of General John P. Otjen, United
    States Army, and General Calvin Waller, Ret., United States Army,
    from Senate Hearing 103-845).

[^208]: *Id.*

[^209]: *Id.* (citing Terminiello v. Chicago, 337 U.S. 1, 4 (1949);
    Healy v. James, 408 U.S. 169, 187-88 (1972); Simon and Schuster,
    Inc. v. New York Crime Victims Bd., 502 U.S. 105, 118 (1991)). *See*
    *infra* notes 355-56 and accompanying text for a comment on the
    permissibility of the "heckler's veto" in both the civilian and
    military community.

[^210]: Able, 880 F.Supp. at 979-80 (quoting Texas v. Johnson, 491 U.S.
    397, 414 (1989) (striking Texas statute making it a crime to
    desecrate the American flag) (internal quotation marks omitted)).

[^211]: *Id*. at 980 (citing Bolling v. Sharpe, 347 U.S. 497, 498-99
    (1954)).

[^212]: *Id*. (quoting Police Department of the City of Chicago v.
    Mosley, 408 U.S. 92, 99 (1972)).

[^213]: *Id*. (quoting Palmore v. Sidoti, 466 U.S. 429, 433 (1984)
    (quoting Palmer v. Thompson, 403 U.S. 217, 260-61 (1971) (White, J.,
    dissenting))).

[^214]: Able v. United States, 88 F.3d 1280, 1284 (2nd Cir. 1996).

[^215]: Although not directly pertinent to this examination, the court's
    finding that the plaintiffs were not required to exhaust their
    administrative remedies because it would be futile can be found at
    *Able*, 88 F.3d at 1288-90.

[^216]: *Id*. at 1292.

[^217]: *Id.*

[^218]: *Id.* at 1292-94.

[^219]: *See supra* note 164.

[^220]: Able, 88 F.3d at 1294 (citing Brown v. Glines, 444 U.S. 348, 355
    (1980); Greer v. Spock, 424 U.S. 828, 837 (1976); Parker v. Levy,
    417 U.S. 733, 758 (1974)).

    In *Brown v. Glines*, the Supreme Court denied a facial challenge to
    military regulations that required military personnel and civilians
    to gain prior command approval before circulating certain material.
    The Court found that the regulations "protect a substantial
    Government interest unrelated to the suppression of free speech,"
    namely, the avoidance of a "clear danger to the loyalty, discipline,
    or morale of the troops on the base under his command." Brown, 444
    U.S. at 353-54. The Court also concluded that "the Air Force
    regulations restrict speech no more than is reasonably necessary."
    *Id.* at 355. The regulations "prevent commanders from interfering
    with the circulation of any materials other than those posing a
    clear danger to military loyalty, discipline, or morale." *Id.* The
    Court reasoned that the prior approval requirement was necessary
    because if the commander did not have the opportunity to review the
    material, then he "could not avert possible disruption among his
    troops." *Id.* at 356.

    In *Greer v. Spock*, Army regulations at Fort Dix that prohibited
    political demonstrations and speeches and required prior approval of
    literature were challenged both facially and as applied. The base
    commander denied access to political candidates in order to avoid
    the appearance of partisan political favoritism and to preserve the
    training environment of the troops. Greer, 424 U.S. at 833 n.3.
    Recognizing the military's interests in maintaining both the
    appearance and reality of political neutrality, the Court explained
    that keeping official military activities free of entanglement with
    partisan political campaigns "is wholly consistent with the American
    tradition of a politically neutral military establishment under
    civilian control." *Id.* at 839. The Court concluded that
    restrictions on distribution did not target political speech, but
    was a general exclusion applicable whenever the commander determined
    that there was a clear threat to good order, loyalty, and
    discipline. *Id.* at 840.

    In *Parker v. Levy*, the Supreme Court, per then-Justice Rehnquist,
    denied vagueness and overbreadth challenges to Articles 133 and 134,
    UCMJ. The Court cited the Court of Claims reasoning that cases
    involving Article 134 determinations were "not measurable by our
    innate sense of right or wrong, of honor or dishonor, but must be
    gauged by an actual knowledge and experience of military life, its
    usage and duties." Parker, 417 U.S. at 748-49 (citing Swaim v.
    United States, 28 Ct. Cl. 173, 228 (1893)). It also explained that
    "\[f\]or the reasons which differentiate society from civilian
    society, we think Congress is permitted to legislate both with
    greater breadth and with greater flexibility when prescribing the
    rules by which the former shall be governed than it is when
    prescribing rules for the latter." *Id.* at 756.

    In ruling upon the overbreadth challenge to Article 134, UCMJ, the
    Court reasoned that the "different character of the military
    community and of the military mission," based upon the "fundamental
    necessity for obedience" and "necessity for imposition of
    discipline, may render permissible within the military that would be
    constitutionally impermissible outside it." *Id.* at 758. The Court
    quoted at length from the "sensibly expounded" reasoning of the
    Court of Military Appeals in *United States v. Priest*:

    > In the armed forces some restrictions exist for reasons that have
    > no counterpart in the civilian community. Disrespectful and
    > contemptuous speech, even advocacy of violent change, is tolerable
    > in the civilian community, for it does not directly affect the
    > capacity of the Government to discharge its responsibilities
    > unless it is both directed at inciting imminent lawless action and
    > is likely to produce such action. In military life, however, other
    > considerations must be weighed. The armed forces depend on a
    > command structure that at times must commit men to combat, not
    > only hazarding their lives but ultimately involving the security
    > of the Nation itself. Speech that is protected in the civil
    > population may nonetheless undermine the effectiveness of response
    > to command. If it does, it is constitutionally unprotected.

    Parker, 417 U.S. at 758-59 (quoting United States v. Priest, 45
    C.M.R. 338, 344 (C.M.A. 1972) (citing Brandenburg v. Ohio, 395 U.S.
    444 (1969); United States v. Gray, 20 U.S.C.M.A. 63, 42 C.M.R. 255
    (1970))). *See generally* Robert N. Strassfeld, *The Vietnam War on
    Trial: The Court-Martial of Dr. Howard B. Levy*, 1994 [Wis. L.
    Rev.]{.smallcaps} 839 (1994).

[^221]: *Id.* at 1294.

[^222]: 475 U.S. 41 (1986).

[^223]: Able, 88 F.3d at 1294-95.

[^224]: *Id.* at 1295 (quoting City of Renton, 475 U.S. 41, 50 (1986));
    *see also* Madsen v. Women's Health Ctr., 512 U.S. 753, 763 (1994)
    (concluding injunction against abortion protesters must be content
    neutral, leave ample alternatives for speech, and burden no more
    speech than necessary to serve a significant government interest);
    Ward v. Rack Against Racism, 491 U.S. 781, 791 (1989); Pro-Choice
    Network v. Schenck, 67 F.3d 377, 386 (2nd Cir. 1995) (en banc)
    (First Amendment review of restrictions on abortion protestors),
    *aff'd in part and rev'd in part, remanded*, 519 U.S. 357 (1997);
    Boos v. Barry, 485 U.S. 312, 320 (1988)). In *Boos v. Barry*, the
    Supreme Court examined a District of Columbia provision (D.C. Code §
    22-1115 (1981)) that prohibited the display of any sign bringing a
    foreign government into disrepute within five hundred feet of a
    foreign embassy or building occupied by an embassy official. A
    similar prohibition applied to assemblies. The Court found that the
    display provision was content-based because it applied to an entire
    category of speech, namely "signs or displays critical of foreign
    governments." Boos, 485 U.S. at 319. It was not viewpoint--based
    because the determination of which viewpoint is permitted depends
    upon the policies of foreign governments. *Id.* at 319. Applying
    strict scrutiny, the Court found that although the display provision
    may advance the government's interest in protecting the dignity of
    foreign officials, it was not narrowly tailored to serve that
    interest. *Id.* at 326-29.

[^225]: Able, 88 F.3d at 1295.

[^226]: 470 U.S. 598 (1985).

[^227]: *Id*. at 610-11).

[^228]: 391 U.S. 367 (1968). A content-neutral restriction on speech is
    permissible if: 1) it is within the constitutional power of the
    government; 2) it furthers an important or substantial government
    interest; 3) the governmental interest is unrelated to the
    suppression of free expression; and 4) the incidental restriction on
    alleged First Amendment freedoms is no greater than necessary to
    further that interest. Able, 88 F.3d at 1295 (citing O'Brien, 391
    U.S. at 377).

[^229]: Able, 88 F.3d at 1295 (citing John H. Ely, *Flag Desecration: A
    Case Study in the Roles of Categorization and Balancing in First
    Amendment Analysis*, 88 [Harv. L. Rev.]{.smallcaps} 1482, 1483 n.10,
    1484 (1975)).

[^230]: *Id*. at 1295-96 (citing Glines, 444 U.S. at 355).

[^231]: *Id*. at 1296 (citing Thorne v. United States Department of
    Defense, 916 F.Supp. 1358, 1370 (E.D.Va. 1996)).

[^232]: *Id*. The Court of Appeals did state, however, that the standard
    for a content-based restriction in the civilian setting would be
    constitutional if it "'is a precisely drawn means of serving a
    compelling state interest.'" *Id.* at 1296 (quoting Consolidated
    Edison Co. v. Public Service Commission, 447 U.S. 530, 540 (1980)).

[^233]: *Id.* The Court of Appeals reiterated, however, that it assumed
    but did not decide "that the interest which supports the act
    prohibition is sufficient to withstand constitutional scrutiny."
    *Id*. at 1296 n.8.

[^234]: *Id.* at 1296 (quoting DoD Directive 1332.14, *supra* note 88,
    encl. 3, pt. 1, ¶ H.1.b(2)).

[^235]: *Id*. (citing Steffan v. Perry, 41 F.3d 677, 688 (D.C. Cir.
    1994) (en banc)).

[^236]: *Id*. at 1296-97 (citations and footnote omitted).

[^237]: *Id.* at 1297. *See also* Lee v. United States, 32 Fed. Cl. 530
    (Fed. Cl. 1995) (finding that Air Force Reserve officer's honorable
    discharge was not unlawful because his expression of an inability to
    launch nuclear weapons based upon moral reservations was not a
    matter of public concern under the *Pickering* test, and military's
    compelling need to ensure that all members will carry out orders
    outweighs any protection to which speech was entitled).

[^238]: Able, 88 F.3d at 1298.

[^239]: *Id.*

[^240]: *Id.* The court also declined to adopt the argument made by the
    Family Research Council in its amicus brief that the Act bars all
    individuals with a known homosexual orientation. Instead, "the Act
    does not bar those who have a homosexual orientation but are not
    likely to engage in homosexual acts." The only evidence otherwise
    was Congress's choice of the word "propensity" in §654(b)(2). The
    court refused to define propensity to mean "orientation" or
    "inclination," and instead ascertained that "it means a likelihood
    to engage in acts." *Id.* at 1298-99.

[^241]: *Id.* at 1299.

[^242]: *Id.*

[^243]: *Id*.

[^244]: *Id.*

[^245]: *Id.* at 1300.

[^246]: *Id.*

[^247]: Able v. United States, 968 F.Supp. 850, 852 (E.D.N.Y. 1997)
    (citing Weinberger v. Weisenfeld, 420 U.S. 636, 638 n.2 (1975);
    Bolling v. Sharpe, 347 U.S. 497 (1954)).

[^248]: *Id*. at 852 (citing Romer v. Evans, 517 U.S. 620 (1996)). In
    *Romer*, the Supreme Court ruled that Amendment 2 to the Colorado
    Constitution violated the Equal Protection clause of the
    Constitution. Passed in a statewide referendum, Amendment 2
    prohibited "all legislative, executive or judicial action at any
    level of state or local government designed to protect" homosexual
    persons or gays or lesbians. Romer, 517 U.S. at 624. The Court noted
    that the Amendment put homosexuals "in a solitary class" and
    "withdraws from homosexuals, but no others, specific legal
    protections from the injuries caused by discrimination, and it
    forbids reinstatement of these laws and policies." *Id.* at 627. The
    Amendment failed rational basis review under the Equal Protection
    clause for two reasons:

    > First, the amendment has the peculiar property of imposing a broad
    > and undifferentiated disability on a single named group, an
    > exceptional and . . . invalid form of legislation. Second, its
    > sheer breadth is so discontinuous with the reasons offered for it
    > that the amendment seems inexplicable by anything but animus
    > toward the class that it affects; it lacks a rational relationship
    > to legitimate state interests.

    Id. at 632. For a post-*Romer* opinion that upheld a similar but
    more restrictive amendment to a city charter, see *Equality
    Foundation of Greater Cincinnati, Inc. v. City of Cincinnati*, 128
    F.3d 289 (6th Cir. 1997) (holding that city charter amendment was
    rationally related to the city's interest in "conserving public and
    private financial resources" that accrue from investigating and
    adjudicating sexual orientation discrimination complaints).

[^249]: Able, 968 F.Supp. at 852.

[^250]: *Id.* (citing Romer, 517 U.S. at 631-32 (1996)).

[^251]: *Id*.

[^252]: *Id.* at 853 (citing GAO: [DoD Policy on
    Homosexuality]{.smallcaps}, *supra* note 200, at 39-40).

[^253]: *Id*. at 853-54 (citing General Accounting Office,
    GAO/NSIAD-93-215, [Homosexuals in the Military: Policies and
    Practices of Foreign Countries]{.smallcaps} 5 (Report to Senator
    John W. Warner, June 1993)).

[^254]: *Id*. at 855.

[^255]: *Id*.

[^256]: *Id.* at 857.

[^257]: *Id.*

[^258]: *Id.*

[^259]: *Id.*

[^260]: *Id.*

[^261]: *Id.* 858-59.

[^262]: Palmore v. Sidoti, 466 U.S. 429 (1984). In *Palmore*, the
    Supreme Court held that a state court's decision to remove a child
    from the custody of the natural mother because the mother had
    entered an interracial marriage did not survive strict scrutiny
    under the Equal Protection clause of the Fourteenth Amendment. After
    noting that racial classifications are "more likely to reflect
    racial prejudice than legitimate public concerns," the Court had
    "little difficulty" in determining that "the reality of private
    biases and the possible injury they might inflict are \[not\]
    permissible considerations for removal of an infant child from the
    custody of its natural mother." *Id.* at 432-33.

[^263]: Able, 968 F.Supp. at 859 (quoting Palmore, 466 U.S. at 433)
    (internal citations omitted). The court also cited *City of Cleburne
    v. Cleburne Living Center*, 473 U.S. 432, 448 (1985) for the
    proposition that "mere negative attitudes, or fear, unsubstantiated
    by factors which are properly cognizable in a zoning proceeding, are
    not permissible bases for treating a home for the mentally retarded
    differently from apartment houses, multiple dwellings, and the
    like." Although declining to extend quasi-suspect classification to
    mental retardation, the Supreme Court in *Cleburne Living Center*
    invalidated a city zoning ordinance, as applied to the petitioner in
    the case, that required the group home to acquire a special use
    permit annually from the city.

    > The short of it is that requiring the permit in this case appears
    > to us to rest on an irrational prejudice against the mentally
    > retarded, including those who occupy the Featherston facility and
    > who would live under the closely supervised and highly regulated
    > conditions expressly provided for by state and federal law.

    Cleburne Living Center, 473 U.S. at 450.

[^264]: Able, 968 F.Supp. at 859 (citing Philips v. Perry, 106 F.3d
    1420, 1436 (9th Cir. 1997) (Fletcher, J., dissenting) (citing Romer,
    517 U.S. at 635)). For a discussion of Amendment 2, see *supra* note
    248.

[^265]: *Id.* (citing Philips, 106 F.3d at 1436 (Fletcher, J.,
    dissenting) (citing Palmore, 466 U.S. at 433)).

[^266]: *Id.* (citing Philips, 106 F.3d at 1436 (Fletcher, J.,
    dissenting) (citing City of Cleburne, 473 U.S. at 448 (1985)).

[^267]: *Id.*.

[^268]: *Id.*

[^269]: *Id.*

[^270]: *Id.*

[^271]: *Id.* at 860.

[^272]: *Id.*

[^273]: *Id.*

[^274]: *Id.*

[^275]: *Id.* at 860-61. The court also pointed out that military
    regulations do not address the increased sexual tension that arises
    out of heterosexual acts that do not constitute sexual misbehavior.
    *Id.* at 861.

[^276]: *Id.*

[^277]: *Id.* (citing Romer, 517 U.S. at 631).

[^278]: *Id.* (citing Simon & Schuster, Inc. v. New York Crime Board,
    502 U.S. 105, 118 (1991); Texas v. Johnson, 491 U.S. 397, 414
    (1989); Healy v. James, 408 U.S. 169, 187-88 (1972); Terminiello v.
    Chicago, 337 U.S. 1, 4 (1949)). The court also quoted *United States
    Department of Agriculture v. Moreno* for the proposition that "if
    the constitutional conception of 'equal protection of the laws'
    means anything, it must at the very least mean that a bare desire to
    harm a politically unpopular group cannot constitute a legitimate
    government interest." Able, 968 F.Supp. at 861 (quoting United
    States Department of Agriculture v. Moreno, 413 U.S. 528, 534-35
    (1973)).

[^279]: Able, 968 F.Supp. at 861 (citing United States v. Virginia, 518
    U.S. 515, 531-33 (1996)).

[^280]: *Id.* at 862. The district court also offered its analysis of
    the history of discrimination against homosexuals, their political
    powerlessness, and arguments supporting a finding that they
    constitute a discrete and insular minority. Although not necessary
    to dispose of the case before it, the court stated its belief that
    homosexuals met the criteria that warranted heightened scrutiny
    under the Equal Protection clause. *Id.* at 862-64.

[^281]: *Id.* at 864 (quoting Exec. Order No. 9981, 3 C.F.R. Supp. 1947,
    at 722 (July 29, 1948)).

[^282]: *Id.* (quoting Strauder v. West Virginia, 100 U.S. 303, 308
    (1879)).

[^283]: *Id.* (citing United States v. Robel, 389 U.S. 258, 264 (1967)).
    In *Robel*, the Supreme Court found that § 5(a)(1)(D) of the
    Subversive Activities Control Act of 1950, 64 Stat. 992, 50 U.S.C. §
    784 (a)(1)(D), constituted an unconstitutional abridgement of the
    right to association under the First Amendment. Robel, 389 U.S. at
    261. The section of the Act provided that when a Communist-action
    organization was under a final order to register, it was then
    unlawful for any member of the organization to engage in employment
    in any defense facility. *Id.* The Court noted that it was because
    the section "sweeps indiscriminately across all types of association
    with Communist-action groups, without regard to the quality and
    degree of membership, that it runs afoul of the First Amendment."
    *Id.* at 262.

[^284]: Able, 968 F.Supp. at 864. The court distinguished the three
    courts of appeals decisions that had reached a contrary conclusion.
    *Id.* (distinguishing Philips, 106 F.3d 1420; Thomasson, 80 F.3d
    915; Richenburg, 97 F.3d 256).

[^285]: *Id.*

[^286]: Able v. United States, 155 F.3d 628 (2nd Cir. 1998).

[^287]: *Id.* at 636.

[^288]: *Id.*

[^289]: *Id.* at 632.

[^290]: 509 U.S. 312 (1993).

[^291]: *Id.* at 319 (quoting Federal Communications Commission v. Beach
    Communications, Inc., 508 U.S. 307, 313 (1993))).

[^292]: Able, 155 F.3d at 632 (citing Heller, 509 U.S. at 320 (quoting
    Beach Communications, Inc., 508 U.S. at 313 (1993))).

[^293]: *Id.* (citing Heller, 509 U.S. at 320-21).

[^294]: *Id.* (citing Goldman v. Weinberger, 475 U.S. 503, 508 (1986)
    (quoting Rostker v. Goldberg, 453 U.S. 57, 70 (1981)). In *Goldman
    v. Weinberger*, the Supreme Court considered a Free Exercise Clause
    challenge to Air Force Regulation 35-10 which only permitted the
    wearing of nonvisible religious apparel. Goldman argued "that the
    Free Exercise Clause of the First Amendment requires the Air Force
    to make an exception to \[the uniform regulation\] for religious
    apparel unless the accouterments create a 'clear danger' of
    undermining discipline and esprit de corps." Goldman, 475 U.S. at
    509. The Court held that the Free Exercise Clause did not require
    the Air Force to make an exception to its uniform and generally
    applicable dress regulations even if it had the effect of
    substantially burdening religion. Then-Justice Rehnquist, joined by
    four other Justices, noted that, even when evaluating whether
    military needs justify a regulation of religiously motivated
    conduct, "courts must give great deference to the professional
    judgment of military authorities concerning the relative importance
    of a particular military interest." *Id.* at 507. According to
    Justice Rehnquist, the "appropriate military officials" decided the
    desirability of dress regulation, and "they are under no
    constitutional mandate to abandon their considered professional
    judgment" and grant an exception. *Id.* at 509. One commentator
    concluded that the Court's refusal in the case to,

    > establish guidelines for government action when that action
    > impinges upon constitutionally protected interests . . . sends a
    > legitimating message to military officials prone to suppress the
    > individuality of service personnel and leaves unanswered the
    > question of when, if ever, the Court is prepared to defend the
    > liberties of Americans who serve their country in the armed
    > forces.

    *Military Ban on Yarmulkes*, 100 [Harv. L. Rev.]{.smallcaps} 163,
    172 (1986). *See also* 10 U.S.C. § 774 (West 1998) (providing that
    military members may wear items of religious apparel except when the
    Secretary of the individual service determines that "wearing of the
    item would interfere with the performance of the member\'s military
    duties," or when the Secretary determines by regulation that "the
    item of apparel is not neat and conservative").

[^295]: Able, 155 F.3d at 632 (quoting Rostker v. Goldberg, 453 U.S. 57,
    72 (1981)).

[^296]: *Id.* at 633.

[^297]: *Id.* See *supra* note 164 for a discussion of the separate
    society rationale.

[^298]: Able, 155 F.3d at 633. Criminal rights and protections in the
    military justice process differ from those in the civilian
    community. The Fifth Amendment's Grand Jury provision contains an
    exception for "cases arising in the land or naval forces." United
    States v. Curtis, 44 M.J. 106, 130 (1996). "\[A\] court-martial has
    never been subject to the jury-trial demands of Article III of the
    Constitution." United States v. Gray, 37 M.J. 751, 755 (A.C.M.R.
    1993) (citing Ex Parte Quirin, 317 U.S. 1 (1942)). The Court of
    Military Appeals (now the Court of Appeals for the Armed Forces) has
    also invoked the separate society rationale to qualify the Fourth
    Amendment's search and seizure protection. "This Court has observed,
    'since the military is, by necessity, a specialized society separate
    from civilian society, . . . it is foreseeable that reasonable
    expectations of privacy within the military society will differ from
    those in the civilian society.'\" United States v. McCarthy, 38 M.J.
    398, 402 (C.M.A. 1993) (quoting United States v. Middleton, 10 M.J.
    123, 127 (C.M.A. 1981)). In the military setting, a commander who
    issues a search authorization does not have be a judicial officer,
    the warrant does not have to be in writing or supported by oath or
    affirmation, and general inspections may be ordered without probable
    cause and without the specificity required for a typical warrant.
    *See e.g.,* United States v. Lopez, 35 M.J. 35, 45 (C.M.A. 1992)
    (Cox, J., concurring).

[^299]: Able, 155 F.3d at 634.

[^300]: Romer v. Evans, 517 U.S. 620 (1996); City of Cleburne v.
    Cleburne Living Center, 473 U.S. 432 (1985); Palmore v. Sidoti, 466
    U.S. 429 (1984). *See also supra* notes 248, 262, 263*.*

[^301]: Able, 155 F.3d at 634.

[^302]: *Id.* at 635. *See also* Thomasson v. Perry, 80 F.3d 915, 930
    (4th Cir. 1996) ("But in the civil context, the government can
    fashion general employment policies to prevent unsatisfactory
    conduct."), *cert. denied*, 519 U.S. 498 (1996); New York City
    Transit Authority v. Beazer, 440 U.S. 568, 589-92 (1979) (upholding
    policy barring methadone users from employment); Vance v. Bradley,
    440 U.S. 93 (1979) (upholding mandatory retirement age for Foreign
    Service personnel); Massachusetts Board of Retirement v. Murgia, 427
    U.S. 307, 314-17 (1976) (per curiam) (upholding mandatory retirement
    age for police officers).

[^303]: Able, 155 F.3d at 635*.*

[^304]: *Id.* (citing Goldman, 475 U.S. at 508-10).

[^305]: *Id.* at 636.

[^306]: *Id.*

[^307]: 10 U.S.C. § 654(f)(3)(a)-(b).

[^308]: *See* Air Force Instruction 36-2909 \[hereinafter AFI 36-2909\],
    Professional and Unprofessional Relationships (May 1, 1996).

[^309]: MCM, *supra* note 18, Part IV, ¶ 83; AFI 36-2909, *supra* note
    308. Portions of AFI 36-2909 are punitive and if violated can be the
    basis for a charge of failure to obey a lawful general order or
    regulation under Article 92, UCMJ. MCM, *supra* note 18, Part IV, ¶
    16.

[^310]: It could be argued that the military is concerned about the
    occurrence of homosexual acts because it is evidence of a propensity
    to engage in sodomy, which is prohibited by Article 125, UCMJ. If
    the data concerning the number of heterosexuals and homosexuals who
    engage in sodomy is correct, however, and the military is
    representative of society in this regard, then the military would be
    concerned about the occurrence of both heterosexual acts and
    homosexual acts based upon their respective propensities to engage
    in sodomy. *See* *supra* notes 26-30 and accompanying text.

[^311]: MCM, *supra* note 18, Part IV, ¶ 90.

[^312]: Able v. United States, 880 F.Supp. 968, 975 (E.D.N.Y. 1995)
    (emphasis added) (history omitted).

[^313]: Able v. United States, 968 F.Supp. 850, 857 (E.D.N.Y. 1997).

[^314]: Able, 880 F.Supp. at 974 (emphasis added)*.*

[^315]: Able, 968 F.Supp. at 857.

[^316]: President Clinton's comments about the policy also indicate the
    difficulty of properly characterizing the misconduct at issue. The
    President initially explained that the "issue ought to be conduct.
    Has anybody done anything which would disqualify them, whether it's
    \[the\] Tailhook scandal or something else." *I Intend to Look
    Beyond Partisanship . . . . to Help Guide Our Nation*, [Wash.
    Post]{.smallcaps}, Nov. 13, 1992, at A10. Assuming the Tailhook
    scandal involved alleged sexual assault and not fraternization, this
    statement seems to indicate that only conduct that was otherwise
    criminal would be prohibited. The President later explained,
    however, the issue was "whether a person, in the absence of *any
    other disqualifying conduct*, can simply say that he or she is a
    homosexual and stay in the service." The President's News
    Conference, *supra* note 61, at 108 (emphasis added). In announcing
    the new policy, the President further stated that members would be
    given the opportunity to rebut the statement presumption and
    "demonstrate that he or she intends to live by *the rules of
    conduct* that apply in the military service." Remarks Announcing the
    New Policy, *supra* note 6, at 1369 (emphasis added). It appears
    that the rules of conduct referred to include conduct that is
    prejudicial to good order and discipline, even if otherwise
    considered to be "innocuous."

[^317]: Able, 88 F.3d. at 1296. *See* *supra* note 233 and accompanying
    text.

[^318]: *See* *supra* notes 262-267 and accompanying text.

[^319]: Able, 968 F.Supp. at 859 (quoting Palmore, 466 U.S. at 433).

[^320]: Able, 155 F.3d at 635.

[^321]: *See* *supra* note 137 and accompanying text.

[^322]: *See* *supra* note 146 and accompanying text.

[^323]: MCM, *supra* note 18, Part IV, ¶ 60(a).

[^324]: *Id.* Part IV, ¶ 60(c)(3).

[^325]: Brown v. Glines, 444 U.S. 348 (1980). The Court also held that
    the regulations did not violate 10 U.S.C. § 1034, which it
    interpreted as protecting the ability of an individual military
    member to contact members of Congress. *Id.* at 358.

[^326]: *Id.* at 351 n.3 (quoting Glines v. Wade, 586 F.2d 675, 677 n.1
    (9th Cir. 1978)).

[^327]: Air Force Regulation 35-1(9) prohibited the public solicitation
    or collection of petitions by a military member in uniform, by a
    military member in a foreign country, or by any person within an Air
    Force facility without command permission. Brown, 444 U.S. at 349-50
    n.1. Additionally, Air Force Regulation 35-15(3) prohibited military
    personnel from distributing or posting any unofficial material
    within an Air Force facility without command permission. *Id.* at
    350-51 n.2. While on temporary duty at Anderson AFB, Guam, Glines
    circulated the petition without obtaining the prior approval of the
    base commander. When his commander was notified of the incident,
    Glines was assigned to the standby reserves. *Id.* at 351.

[^328]: Brown, 444 U.S. at 354.

[^329]: *Id.* at 353 (quoting Greer v. Spock, 424 U.S. 828, 840 (1976)).

[^330]: Brown, 444 U.S. at 354 (quoting Schlesinger v. Councilman, 420
    U.S. 738, 757 (1975)). Significantly, the Supreme Court also noted
    that the location or combat status of the base was immaterial. The
    restrictions necessary for military readiness and discipline "are as
    justified on a regular base in the United States, as on a training
    base, or a combat-ready installation in the Pacific." Brown, 444
    U.S. at 356 n.14 (citations omitted). Regardless of where the base
    is located, airmen "may be transferred to combat duty or called to
    deal with a civil disorder or natural disaster." *Id.*

[^331]: Brown, 444 U.S. at 355.

[^332]: *Id.*

[^333]: *Id.* at 356. In an important footnote, the Supreme Court
    conceded that commanders could "apply these regulations
    'irrationally, invidiously, or arbitrarily,' thus giving rise to
    legitimate claims under the First Amendment." *Id.* at 357 n.15.
    Since Glines never requested permission to circulate his petition,
    the issue was not before the Court.

[^334]: In the civilian community, content-based restrictions must be
    necessary to achieve a compelling state interest unless the speech
    falls into an unprotected category of speech. *See, e.g.,* Widmar v.
    Vincent, 454 U.S. 263 (1981); Cohen v. California, 403 U.S. 15
    (1971). Content-neutral time, place, and manner regulations must be
    narrowly tailored to advance a significant government interest and
    not foreclose adequate alternative channels of communication. *See,
    e.g.,* Clark v. Community For Creative Non-Violence, 468 U.S. 288
    (1984); Hague v. CIO, 307 U.S. 496 (1937). For example, Congress can
    pass a statute that makes it illegal to wear a military uniform
    without authority. It cannot, however, create an exception only for
    those actors that wear uniforms and portray the armed forces in a
    positive manner. In *Schacht v. United States*, the Supreme Court
    noted that such a statute would seem constitutional on its face
    because it only has an incidental effect on speech. Schacht v.
    United States, 398 U.S. 58, 61 (1970). The Court, however, struck
    the exemption clause from the statute, reasoning that "Congress has
    in effect made it a crime for an actor wearing a military uniform to
    say things during his performance critical of the conduct or
    policies of the Armed Forces." *Id.* at 62. Since the exemption was
    triggered based upon the viewpoint of the actor's speech, it "cannot
    survive in a country which has the First Amendment." *Id.* at 63.

[^335]: Able, 88 F.3d at 1300.

[^336]: *Id.*

[^337]: *See* MCM, *supra* note 18, Part III, Military Rule of Evidence
    508 ("A person has a privilege to refuse to disclose the tenor of
    the person's vote at a political election conducted by secret ballot
    unless the vote was cast illegally."). Concurring in *Greer v.
    Spock*, then-Chief Justice Burger addressed the critical importance
    of the political neutrality of the military and stated that "\[i\]t
    is little more than a century ago that some officers of the Armed
    Forces, then in combat, sought to exercise undue influence either
    for President Lincoln or for his opponent, General McClellan, in the
    election of 1864." Greer v. Spock, 473 U.S. 788, 842 (1985). *See*
    *supra* note 220.

[^338]: The ability to express a personal opinion on political
    candidates is provided for by Air Force Instruction 51-902,
    Political Activities by Members of the U.S. Air Force ¶ 4.1 (Jan. 1,
    1996).

[^339]: Able, 880 F.Supp. at 979-80 (quoting Texas v. Johnson, 491 U.S.
    397 (1989)). *See* *supra* note 209.

[^340]: United States v. Hadlick, CM 8900080 (A.C.M.R. Nov. 30, 1989)
    (unpublished opinion) (reversing Article 134, UCMJ, conviction after
    concluding that: "\[W\]e have no information that the act was
    observed by anyone in the armed forces, was in fact a deliberate act
    of desecration or was likely to be considered by anyone to be a
    deliberate act of desecration or service discrediting."), *aff'd*,
    33 M.J. 163 (C.M.A. 1991).

[^341]: Hadlick, CM 8900080, at 3.

[^342]: United States v. Wilson, 33 M.J. 797 (A.C.M.R. 1991). The
    military judge noted that if the accused in this case were a
    civilian and purchased his own flag, the conduct would be protected
    under *Texas v. Johnson*, 491 U.S. 397 (1989). Wilson, 33 M.J. at
    798.

[^343]: Wilson, 33 M.J. at 798.

[^344]: *Id.* at 799-800 (citing United States v. O'Brien, 391 U.S. 367
    (1968). *See* *supra* note 228.

[^345]: *Id*. at 800.

[^346]: *Id.*

[^347]: *Id.*

[^348]: *Id.*

[^349]: It could be argued that the *O'Brien* test should be applied to
    the underlying duty and not the general article. Wilson's duty was
    to show the proper respect to the flag as a member of the
    flag-raising detail. Initially, it could be argued that the
    government's restriction is not incidental to the suppression of
    speech, and therefore, the *O'Brien* test should not apply.
    Alternatively, applying the *O'Brien* test, it could be argued that
    the government's interest in showing the proper respect for the flag
    is not unrelated to the suppression of free expression. Even
    applying a more specific definition of the underlying duty, Wilson's
    challenge would likely fail because his conduct involved government
    property and he was assigned as a military policeman. However, a
    different fact scenario might lend itself to this type of argument.
    *See* Carr, *supra* note 164, at 331-33.

[^350]: Wilson, 33 M.J. at 798.

[^351]: *See generally* Gregory A. Gross, Note, *Flag Desecration in the
    Army*, 1990-APR [Army Law.]{.smallcaps} 25 (1990); Jonathan F.
    Potter, *Flag Burning: An Offense Under the Uniform Code of Military
    Justice?*, 1990-NOV [Army Law.]{.smallcaps} 21 (1990).

[^352]: Potter, *supra* note 351, at 26.

[^353]: *Id.*

[^354]: *Id.*

[^355]: *See,* e.g., Forsyth County, Georgia v. Nationalist Movement,
    505 U.S. 123, 134-35 (1992) ("Speech cannot be financially burdened,
    anymore than it can be punished or banned, simply because it might
    offend a hostile mob.") (citing Gooding v. Wilson, 405 U.S. 518
    (1972); Terminiello v. Chicago, 337 U.S. 1 (1949)).

[^356]: Zillman and Imwinkelried II, *supra* note 164, at 405; Zillman,
    *supra* note 164, at 442 ("Courts have shown little concern with the
    civilian principle that the troublemakers and not the peaceful
    speakers should be controlled.").

[^357]: *See, e.g.,* Colbert I. King, *Debunking the Case Against Gays
    in the Military*, [Wash. Post]{.smallcaps}, July 7, 1992, at A19.

[^358]: *See* *supra* notes 196-99, 252-53 and accompanying text.

[^359]: Goldman v. Weinberger, 475 U.S. 503 (1986) (5-4 opinion). *See*
    *supra* note 294.

[^360]: *Id*. at 513 (Stevens, J., concurring).

[^361]: *Id*. at 509.

[^362]: Justice Rehnquist's opinion was joined by Chief Justice Burger
    and Justices White, Powell, and Stevens. *Id.* at 503. Justices
    O'Connor, Marshall, Blackmun, and Brennan dissented.

[^363]: *Id.*

[^364]: *Id*. at 508.

[^365]: *Id.* at 509.

[^366]: *Id*.

[^367]: *Id.* Although he noted that a modest departure from uniform
    regulations created "almost no danger of impairment of the Air
    Force's military mission," Justice Stevens, joined by Justices White
    and Powell, also concluded that the Court should consider as
    legitimate and rational the "plausible," yet possibly "exaggerated,"
    interest that the military professionals attached to uniform dress
    regulations. *Id.* at 511-12 (Stevens, J., concurring).

[^368]: Goldwater, *supra* note 1.

[^369]: *See supra* note 252 and accompanying text.

[^370]: Ethredge v. Hail, 56 F.3d 1324 (11th Cir. 1995).

[^371]: *Id.* at 1325.

[^372]: *Id.* at 1325-26.

[^373]: *Id.* at 1327 (quoting Perry Education Association v. Perry
    Local Educators' Association, 460 U.S. 37, 46 (1983)).

[^374]: *Id*. The court explained that other vehicles on-base had bumper
    stickers reading "Bill Clinton has what it takes to take what you
    have" and "Defeat Clinton in '96." *Id.* at 1327 n.2. Additionally,
    the court found that the order in no way limited the application of
    the restriction to opponents of the President. Since it merely
    prohibited bumper stickers that embarrass or disparage the
    President, it also applied to supporters of the President. *Id.* at
    1327.

[^375]: *Id.* at 1328 (citing Greer v. Spock, 424 U.S. 828, 840 (1976)).

[^376]: *Id.*

[^377]: *Id.*

[^378]: *Id.* (citing Goldman v. Weinberger, 475 U.S. 503, 507-08
    (1986)).

[^379]: Despite the court's conclusion to the contrary, the order is
    undoubtedly both content and viewpoint based. It discriminates based
    upon content because it applies only to signs that reference the
    President. It discriminates based upon viewpoint because it applies
    to comments that are "disparaging or embarrassing" but not to
    comments that praise the President or merely state vague
    disapproval. Viewpoint discrimination in this instance is not
    determined by looking at the underlying political party or even
    motivation of the speaker.

[^380]: *See*, e.g., Parker v. Levy, 417 U.S. 733 (1974) (reinstating
    conviction based upon public statements urging African-American
    enlisted men not to go to Vietnam if ordered to do so); United
    States v. Priest, 45 C.M.R. 338 (C.M.A. 1972) (upholding conviction
    for disloyal statements under the predecessor to Article 134, UCMJ,
    arising from the publication of 800 to 1,000 pamphlets calling for
    the violent overthrow of the government).

[^381]: *Policy Concerning Homosexuality in the Armed Forces: Hearings
    Before the Senate Committee on Armed Services*, 103d Cong., 2d Sess.
    (May 11, 1993) (testimony of General H. Norman Schwarzkopf, Ret.,
    United States Army) (emphasis added).

[^382]: *Id.* (testimony of Major Kathleen Bergeron, United States
    Marine Corps) (emphasis added).

[^383]: Air Force Instruction 36-2706, Military Equal Opportunity and
    Treatment Program ¶ 1.1.2 (Dec. 1, 1996).

[^384]: *See* *supra* notes 92-96 and accompanying text.