MIRIAM BEN-SHALOM, PETITIONER V. JOHN O. MARSH, JR., SECRETARY OF
THE ARMY, ET AL.

   No. 89-876

   In The Supreme Court Of The United States

   October Term, 1989

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Seventh Circuit

   Brief For The Respondents In Opposition

            TABLE OF CONTENTS
   Question Presented
   Opinions below
   Jurisdiction
   Statement
   Argument
   Conclusion

                            OPINIONS BELOW

   The opinion of the district court (Pet. App. A55-A92) is reported
at 703 F. Supp. 1372.  The opinion of the court of appeals (Pet. App.
A1-A54) is reported at 881 F.2d 454.

                             JURISDICTION

   The judgment of the court of appeals (Pet. App. A120-A121) was
entered on August 7, 1989.  A petition for rehearing was denied on
October 11, 1989 (Pet. App. A122-A123).  The petition for a writ of
certiorari was filed on December 4, 1989.  The jurisdiction of this
Court is invoked under 28 U.S.C. 1254(1).

                          QUESTION PRESENTED

   Whether the United States Army acted constitutionally when it
denied petitioner reenlistment after she admitted that she is a
homosexual.

                               STATEMENT

   Petitioner is currently a Technical Sergeant in the United States
Army Reserve stationed in Milwaukee, Wisconsin.  Pet. 3.  She has
publicly announced that she is homosexual.  Pet. App. A1.  This
protracted litigation concerns petitioner's attempt to continue her
service in the Army Reserve despite the Army's regulations barring
service by homosexuals.

   1. In December 1976, the Army discharged petitioner pursuant to
then-existing Army Reg. 135-178, para. 7-5(b)(6), which provided for
the discharge of any soldier who "evidences homosexual tendencies,
desire, or interest, but is without overt homosexual acts." See
benShalom v. Secretary of Army, 489 F. Supp. 964, 971 (E.D. Wis.
1980).  Petitioner filed suit claiming that her discharge violated her
constitutional rights to free speech and privacy.  The district court
held that the then-existing Army regulations were unconstitutionally
overbroad under the First Amendment.  benShalom v. Secretary of Army,
supra.  The court ruled that the "broad sweep" of those regulations
infringed on the right of soldiers to "meet with homosexuals and
discuss current problems," and to "read() anything that might be
construed as a homosexually-oriented book or magazine," or to "make
any statements that might be interpreted as supporting homosexuality."
489 F. Supp. at 974.  The district court also held that the Army's
regulation violated petitioner's right to privacy because
"constitutional privacy principles clearly protect one's sexual
preferences in and of themselves from government regulation." 489 F.
Supp. at 976.  The court ordered that petitioner be reinstated in the
Army.  489 F. Supp. at 977.

   The government did not appeal from the finding of liability.
Instead, the Army revised its regulations regarding homosexuals to
address the district court's concern that the regulations were
overbroad.  The parties, however, continued to litigate the proper
remedy for petitioner.  That dispute ended with a decision of the
court of appeals in BenShalom v. Secretary of Army, 826 F.2d 722 (7th
Cir. 1987), that required the Army to reinstate petitioner for an
11-month period.

   2. Petitioner's enlistment, as extended by the court's order,
expired on August 11, 1988.  Before that date, petitioner requested
reenlistment for a new six-year term of service.  Pet. App. A6.  In
March 1988, petitioner's commanding officer notified her that the Army
was considering whether she should be barred from reenlistment under
Army Reg. 140-111, Tab. 4-2, Rule E, on the ground that she is
homosexual.  /1/ Under those regulations, which became effective on
January 1, 1983, homosexuality is identified as a "nonwaivable moral
and administrative disqualification" for reenlistment.

   The Army's March 1988 notice to petitioner informed her that her
repeated admissions of homosexuality gave rise to a presumption that
she is homosexual, but that she had 30 days to submit a response
rebutting that presumption.  Pet. App. A8.  Petitioner responded by
stating:  "I am a lesbian." Sep. App. 8;  /2/ see also Pet. App. A8.
After reviewing her statement, the Army concluded that petitioner is
an admitted homosexual and thus barred from reenlistment under Army
Reg. 140-111, Table 4-2, Rule E.  Sep. App. 13.  Ben-Shalom was
formally notified of that decision on April 7, 1988.  Pet. App. A8.

   3. Petitioner then filed this action claiming that the Army's
refusal to permit her to reenlist violated the First and Fifth
Amendments.  Pet. App. A8-A9.  On August 3, 1988, a few days before
petitioner's enlistment was to expire, the district court entered a
temporary injunction ordering the Army to consider her reenlistment
request without regard to her homosexuality.  Id. at A112.  After the
Army found petitioner to be otherwise qualified, it extended her
original enlistment pending the conclusion of this litigation.

   Petitioner later filed a motion for civil contempt against the Army
on the ground that the Army had disobeyed the district court's order.
Petitioner argued that the Army was required to grant her a new
enlistment contract, not merely extend her original enlistment period.
 The district court agreed with petitioner and entered a finding of
contempt against the Army.  Pet. App. A111-A117.  The district court
also imposed a fine of $500 per day against the Army, but delayed
imposition of the fine to allow the Army to seek a stay from the court
of appeals.  Id. at A116.  Rather than seek a stay, the Army complied
with the district court's order.  Under the terms of the reenlistment,
petitioner's new enlistment contract will be considered void if the
district court's order is reversed.

   On January 10, 1989, the district court entered its final order
holding the Army's regulations to be unconstitutional under both the
First and Fifth Amendments.  Pet. App. A55-A92.  The district court
held that the Army's reliance on petitioner's admission of
homosexuality, without evidence of her having engaged in homosexual
acts, violated her free-speech rights protected by the First
Amendment.  Pet. App. A76.  The court also held that the Army's
exclusion of homosexuals, without evidence of homosexual acts,
violated the equal-protection component of the Fifth Amendment.  The
court reasoned that the Army's treatment of persons based on their
"sexual orientation" constitutes a suspect classification, which is
subject to strict scrutiny.  Id. at A87.  The court held, however,
that even if strict scrutiny did not apply, the regulation excluding
homosexuals (without evidence of homosexual conduct) was not
rationally related to any legitimate governmental interest.  Id. at
A88-A91.

   4. The court of appeals reversed the district court's judgment.
Pet. App. A1-A54.  The court rejected petitioner's First Amendment
challenge to the Army's regulations.  The court determined that, under
the new regulations, petitioner "is free * * * to say anything she
pleases about homosexuality and about the Army's policy toward
homosexuality.  She is free to advocate that the Army change its
stance;  she is free to know and talk to homosexuals if she wishes."
Pet. App. A32.  The court reasoned that it is her "identity" as a
homosexual that makes her ineligible for military service, "not the
speaking of it aloud." Ibid.  Moreover, relying on this Court's
decision in United States v. O'Brien, 391 U.S. 367 (1968), the court
of appeals held that, even if the regulation "affects speech, it does
so only incidentally, in the course of pursuing other legitimate
goals." Pet. App. A32.

   The court of appeals also rejected petitioner's equal-protection
argument.  The court held that the "deferential" rationality standard
of review is applicable, and that "the Army satisfies that standard
without any difficulty." Pet. App. A44.  The court of appeals
disagreed with petitioner's claim that strict scrutiny was required
because the Army's regulation is based on status instead of conduct.
The court of appeals noted that this case is not about status;
rather, petitioner's repeated admissions of her homosexuality are
"compelling evidence that (she) has in the past and is likely to again
engage in (homosexual) conduct." Id. at A42.

   Applying the rationality test, the court concluded that "(t)he new
regulation * * * clearly promotes a legitimate government interest
sufficient to survive rational basis scrutiny." Pet. App. A49.
Because this case involves the composition of the armed forces, the
court ruled that the military's judgment is entitled to deference and
that the classification created by the regulation is "supported by
military considerations and should be left to the Army." Ibid.
Accordingly, the court concluded that it was "unwilling to substitute
a mere judge-made rule for the Army's regulation or to act in an
executive or legislative fashion." Id. at A51.

                               ARGUMENT

   The decision of the court of appeals is correct and it does not
conflict with any decision of this Court or of any other court of
appeals.  Thus, no further review is warranted.

   1. The courts of appeals have consistently upheld military
regulations barring service by homosexuals.  See Woodward v. United
States, 871 F.2d 1068 (Fed. Cir. 1989), petition for cert. pending,
No. 89-344;  Dronenburg v. Zech, 741 F.2d 1388 (D.C. Cir. 1984);  Rich
v. Secretary of the Army, 735 F.2d 1220 (10th Cir. 1984);  Beller v.
Middendorf, 632 F.2d 788 (9th Cir. 1980), cert. denied, 452 U.S. 905
(1981).  The only appellate decision invalidating the military
regulations, Watkins v. United States Army, 837 F.2d 1428 (9th Cir.
1988), was vacated by the en banc court of appeals, and the case was
decided on other grounds.  Watkins v. United States Army, 875 F.2d 699
(9th Cir. 1989) (en banc).  Despite this great weight of contrary
authority, petitioner challenges the court of appeals' decision on
three grounds.  There is no merit to any of those arguments.

   2. Petitioner first contends (Pet. 12-21) that there was no
rational basis for the Army to deny reenlistment to her simply because
she is homosexual.  That argument is premised (Pet. 14) on her
observation that, although she admits that she is homosexual, the Army
has no evidence that she has engaged in homosexual conduct.  The court
of appeals, in accordance with the Federal Circuit's decision in
Woodward v. United States, supra, properly rejected that argument.

   As the court of appeals noted (Pet. A42-A43), the Army's regulation
"does not classify (petitioner) based merely upon her status as a
lesbian, but upon reasonable inferences about her probable conduct in
the past and in the future." The reasonableness of such an inference
of homosexual conduct is apparent.  Petitioner has repeatedly admitted
that she is a homosexual.  See, e.g., Sep. App. 6, 8.  She does not
deny that she has engaged in or will engage in homosexual conduct.
Pet. App. A43.  Her admissions of her homosexuality, "if not an
admission of its practice, at least can rationally and reasonably be
viewed as reliable evidence of a desire and propensity to engage in
homosexual conduct." Id. at A42.  Accordingly, the court of appeals
properly recognized that her admissions constitute "compelling
evidence that (she) has in the past and is likely to again engage in
(homosexual) conduct." Ibid.  The Army "need not shut its eyes to the
practical realities of this situation, nor be compelled to engage in
the sleuthing of soldiers' personal relationships for evidence of
homosexual conduct in order to enforce its ban on homosexual acts."
Id. at A43.

   Nevertheless, petitioner argues (Pet. 18-19) that it is irrational
for the Army to bar homosexuals because heterosexuals can also engage
in certain sexual acts that are made criminal by Article 125 of the
Uniform Code of Military Justice, 10 U.S.C. 925.  The Army, however,
has determined that homosexual conduct is a greater problem in the
military than is heterosexual conduct.  Eight years ago, the
Department of Defense issued a directive stating that, in its view,
the presence of homosexuals in the military will

         adversely affect() the ability of the Military Services to
      maintain discipline, good order, and morale;  to foster mutual
      trust and confidence among service members;  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.

   Department of Defense Directive (DOD) No. 1332.14, at 1-9 to 1-10
(Jan. 28, 1982).  Thus, since the Army's concern is with the
potentially disruptive effect of homosexual conduct, it is obviously
rational to exclude homosexuals while allowing heterosexuals to serve.
 Cf. Hatheway v. Secretary of the Army, 641 F.2d 1376 (9th Cir.) (Army
may prosecute homosexual sodomy even though it chooses not to
prosecute heterosexual sodomy), cert. denied, 454 U.S. 864 (1981).

   Petitioner's main point (Pet. 15-21) seems to be that there is no
empirical basis for the Army's concern about homosexuals.  Petitioner
refers to the draft report of the Defense Personnel Security Research
and Education Center (Perserec) (Dec. 1988) in support of her view
that homosexuality does not affect a soldier's ability to perform his
or her job.  The existence of that draft report, however, suggests at
most that the Army's regulation is subject to reasonable debate;  it
does not show that the Army's policy is irrational.  Indeed, the
Perserec report itself recognizes that, although individual
homosexuals may be good soldiers, there are important institutional
factors that warrant further study (Perserec Report at 33):

         For the purpose of military organization * * * (the) quality
      of job performance may be less important than the effects of
      homosexuals * * * on that important but ephemeral quality:
      group cohesion.  The important question to be raised in future
      research must center on the claims that persons with
      nonconforming sexual attitudes create insurmountable problems in
      the maintenance of discipline, group cohesion, morale,
      organizational pride, and integrity.

   Thus, the draft report simply called for "engaging in empirical
research to test the hypothesis that men and women of atypical sexual
orientation can function appropriately in military units." Perserec
Report at iii.

   Furthermore, contrary to petitioner's suggestion (Pet. 15), the
Army was not required to justify its regulation by submitting
empirical data to the courts.  That is clear from this Court's
decision in Goldman v. Weinberger, 475 U.S. 503, 509 (1986), where the
Court rejected the contention that the Army was required to submit
empirical evidence to support the need for its dress regulations in a
case where a serviceman claimed that those regulations violated his
First Amendment rights.  Ibid.  The Court declared:  "The desirability
of dress regulations in the military is decided by the appropriate
military officials, and they are under no constitutional mandate to
abandon their considered professional judgment." Ibid.  The Goldman
decision follows the long line of cases holding that determinations
regarding the composition and discipline of the military forces are
better left to professional military judgments, subject to civilian
control of the Legislative and Executive Branches.  See e.g., Gilligan
v. Morgan, 413 U.S. 1, 10 (1973);  Rostker v. Goldberg, 453 U.S. 57
(1981);  Schlesinger v. Ballard, 419 U.S. 498 (1975).  Not only are
courts "ill-equipped" to make judgments about such military matters,
Chappell v. Wallace, 462 U.S. 296, 305 (1983), but our constitutional
system places the responsibility for such decisions elsewhere.  As the
Court noted in Ballard, 419 U.S. at 510:

         This Court has recognized that "it is the primary business of
      armies and navies to fight or be ready to fight wars should this
      occasion arise." Toth v. Quarles, 350 U.S. 11, 17.  See also
      Orloff v. Willoughby, 345 U.S. 83, 94.  The responsibility for
      determining how best our Armed Forces shall attend to that
      business rests with Congress, see U.S. Const., Art. I, Section
      8, cls. 12-14, and with the President.  See U.S. Const., Art.
      II, Section 2, cl. 1. * * *

   See also United States v. MacIntosh, 283 U.S. 605, 622 (1931)
(Congress has the authority to say "who shall serve * * * and in what
way" in the military).  The court of appeals, therefore, acted in
accord with these principles when it determined that the Army's
decision to exclude homosexuals was well within the professional
discretion granted to military authorities.

   3. Petitioner next contends (Pet. 24-30) that homosexuals are a
"suspect class()" for equal-protection purposes and, therefore, the
court of appeals should have reviewed the Army's regulation under the
strict-scrutiny standard.  That argument is difficult to reconcile
with Bowers v. Hardwick, 478 U.S. 186 (1986), in which this Court held
that "the Federal Constitution (does not) confer() a fundamental right
upon homosexuals to engage in sodomy." 478 U.S. at 190.  If, as Bowers
holds, the government may make homosexual acts a crime, it is
implausible to say that those with a proclivity to commit such acts
constitute a group that deserves special protection from the courts
under the Equal Protection Clause.  /3/ Thus the court of appeals
below properly joined the District of Columbia Circuit, Padula v.
Webster, 822 F.2d 97, 103 (1987), and the Federal Circuit, Woodward v.
United States, 871 F.2d at 1076, in rejecting the argument that the
strict-scrutiny standard should apply to regulations that single out
homosexuals for differential treatment.  /4/ There is no conflict
among the appellate courts over that issue.  /5/

   4. Finally, petitioner's claim (Pet. 21-24) that the Army's
regulations violate her free-speech rights is without merit.  As the
court of appeals recognized (Pet. App. A31-A32), the Army's
regulations implicate free speech only to the extent that an admission
may be used to identify those who are homosexuals and thus ineligible
for military service.  Under the regulation, "Ben-Shalom is free * * *
to say anything she pleases about homosexuality and about the Army's
policy toward homosexuality.  She is free to advocate that the Army
change its stance;  she is free to know and talk to homosexuals if she
wishes." Id. at A32 (emphasis added).  It is the "identity" of
petitioner as a homosexual that makes her ineligible for military
service.  Ibid.

   It is clear that admissions may be used to exclude many classes of
persons from the military (e.g., minors or felons) without violating
the First Amendment.  Just as the First Amendment would not operate as
a sort of "exclusionary rule" precluding the use of admissions
establishing those facts, it also cannot be used to preclude the use
of an admission of homosexuality.  See Johnson v. Orr, 617 F. Supp.
170, 175 (E.D. Cal. 1985), aff'd mem., 787 F.2d 597 (9th Cir. 1986)
(Table).  As the court of appeals observed, petitioner's unqualified
admission of homosexuality shows a propensity to engage in homosexual
conduct, and "(i)n determining the composition of the armed forces,
the Army does not have to take the risk that an admitted homosexual
will not commit homosexual acts which may be detrimental to its
assigned mission." Pet. App. A25-A26 (emphasis added).

   In any event, the court of appeals correctly noted (Pet. App.
A28-A32) that any incidental chilling effect on speech caused by the
regulation does not rise to the level of a constitutional violation.
Review of military regulations challenged on First Amendment grounds
is "far more deferential than constitutional review of similar laws or
regulations designed for civilian society." Goldman v. Weinberger, 475
U.S. 503, 507 (1986).  See also Greer v. Spock, 424 U.S. 828 (1976)
(upholding Army base's regulations banning speakers and demonstrations
of a partisan political nature).  There is no indication that the use
of admissions of homosexuality has any substantial effect on the
exercise of a soldier's right to speak freely.  It simply is a
legitimate way of identifying those persons who are ineligible for
military service because of their homosexuality.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   STUART M. GERSON

      Assistant Attorney General

   ANTHONY J. STEINMEYER

   JOHN C. HOYLE

      Attorneys

   FEBRUARY 1990

   /1/ Table 4-2, Rule E (Pet. App. A6-A7 n.3) sets forth the
following disqualification:

         E. Questionable moral character, history of antisocial
      behavior, sexual perversion, homosexuality (includes an
      individual who is an admitted homosexual but as to whom there is
      no evidence that they have engaged in homosexual acts either
      before or during military service, or has committed homosexual
      acts), or having frequent difficulties with law enforcement
      agencies.  (See note 1.)

         Notes:

         1. Homosexual acts consist of bodily contact between persons
      of the same sex, actively undertaken or passively permitted,
      with the intent of obtaining or giving sexual gratification, or
      any proposal, solicitation or attempt to perform such an act.
      Individuals who have been involved in homosexual acts in an
      apparently (isolated) episode, stemming solely from immaturity,
      curiosity, or intoxication, and absent other evidence that the
      individual is a homosexual, normally will not be excluded from
      service.  A homosexual is an individual, regardless of sex, who
      desires bodily contact between persons of the same sex, actively
      undertaken or passively permitted, with the intent of obtaining
      or giving sexual gratification.  Any official, private, or
      public profession of homosexuality may be considered in
      determining whether an individual is an admitted homosexual.
      (Emphasis added.)

   /2/ "Sep. App." refers to the Separate Appendix filed in the court
of appeals in appeal No. 88-2771.

   /3/ As the Federal Circuit stated in Woodward, 871 F.2d at 1076:

         After Hardwick it cannot logically be asserted that
      discrimination against homosexuals is constitutionally infirm.
      We agree with the court in Padula v. Webster that "there can
      hardly be more palpable discrimination against a class than
      making the conduct that defines the class criminal." 822 F.2d
      97, 103 (D.C. Cir. 1987).

   /4/ Even prior to Hardwick, the courts of appeals had consistently
refused to accord strict scrutiny to review of decisions adversely
affecting homosexuals.  See Baker v. Wade, 769 F.2d 289, 292 (5th Cir.
1985) (en banc), cert. denied, 478 U.S. 1022 (1986);  Dronenburg v.
Zech, 741 F.2d 1388, 1398 (D.C. Cir. 1984);  Rich v. Secretary of the
Army, 735 F.2d 1220, 1229 (10th Cir. 1984);  Beller v. Middendorf, 632
F.2d 788, 807-810 (9th Cir. 1980), cert. denied, 452 U.S. 905 (1981).

   /5/ Petitioner cites (Pet. 24, 29) the panel opinion in Watkins,
but as we noted above, that opinion was vacated by the en banc court
and the case was decided on other grounds.