Cook v. Gates

528 F.3d 42

Thomas COOK; Megan Dresch; Laura Galaburda; Jack Glover; David Hall; Monica Hill; Jenny Lynn Kopfstein; Jennifer McGinn; Justin Peacock; Derek Sparks; Stacy Vasquez, Plaintiffs, Appellants James E. Pietrangelo, II, Plaintiff, v. Robert M. GATES^*, Secretary of Defense; Michael Chertoff, Secretary of Homeland Security; United States of America, Defendants, Appellees.

No. 06-2313.

No. 06-2381.

United States Court of Appeals, First Circuit.

Heard March 7, 2007.

Decided June 9, 2008.

Stuart F. Delery, with whom Benjamin C. Mizer, Julian Davis Mortenson, Wilmer Cutler Pickering Hale and Dorr LLP, Sharra E. Greer, Kathi S. Westcott, Sharon E. Debbage Alexander, Aaron D. Tax, and Servicemembers Legal Defense Network were on brief, for appellants.

James E. Pietrangelo, II, pro se.

Gregory G. Katsas, Principal Deputy Associate Attorney General with whom Michael J. Sullivan, United States Attorney, Peter D. Keisler, Assistant Attorney General, Jonathan F. Cohn, Deputy Assistant Attorney General, Anthony J. Steinmeyer, Assistant Director Appellate Staff, Civil Division and Mark T. Quinlivan, Assistant United States Attorney were on brief, for appellees.

Tobias Barrington Wolff, on brief for amici curiae Akhil Reed Amar, C. Edwin Baker, Erwin Chemerinsky, Owen M. Fiss, Pamela S. Karlan, Andrew Koppelman, Kathleen M. Sullivan, and Laurence H. Tribe, on brief for amici curiae Constitutional Law Professors.

Virginia A. Seitz, Eamon P. Joyce, and Sidley Austin LLP, on brief for amicus curiae Retired Military Officers, Leslie M. Hill, Robert Weiner, Christopher Anderson, and Arnold & Porter LLP, on brief for amici curiae Law Professors.

Rose A. Saxe, Matthew A. Coles, Kenneth Y. Choe, and Sarah Wunsch, on brief for amicus curiae American Civil Liberties Union and American Civil Liberties Union of Massachusetts.

Patricia M. Logue and Bonnie Scott Jones, on brief for amicus curiae Lambda Legal Defense and Education Fund, Inc.

John E. Bies, D. Jean Veta, and Covington & Burling, on brief for amicus curiae of American Sociological Association and Social Science Professors.

Steven W. Fitschen and Barry C. Hodge, on brief for amicus curiae of the National Legal Foundation.

Gary D. Buseck, Mary L. Bonauto, Gay & Lesbian Advocates & Defenders, William M. Hohengarten, Luke C. Platzer, and Jenner & Block LLP, on brief for amicus curiae Gay & Lesbian Advocates & Defenders.

Before HOWARD, Circuit Judge, CAMPBELL, Senior Circuit Judge and SARIS^**, District Judge.

HOWARD, Circuit Judge.

In 1993, Congress enacted a statute regulating the service of homosexual persons in the United States military. 10 U.S.C. § 654 (2007)(the Act). The Act, known as "Don't Ask, Don't Tell," provides for the separation of members of the military who engage, attempt to engage, intend to engage, or have a propensity to engage in a homosexual act. Id. § 654(b). In the aftermath of this congressional action, several members of the military brought constitutional challenges, claiming the Act violated the due process and equal protection components of the Fifth Amendment and the free speech clause of the First Amendment. These challenges were rejected in other circuits. See Able v. United States, 155 F.3d 628 (2d Cir.1998); Holmes v. Cal. Army Nat'l Guard, 124 F.3d 1126 (9th Cir.1997); Richenberg v. Perry, 97 F.3d 256 (8th Cir.1996); Able v. United States, 88 F.3d 1280 (2d Cir.1996); Thomasson v. Perry, 80 F.3d 915 (4th Cir.1996) (en banc).

In 2003, the United States Supreme Court invalidated, on substantive due process grounds, two convictions under a Texas law criminalizing sodomy between consenting homosexual adults. Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003). Lawrence has reinvigorated the debate over the Act's constitutionality. E.g., Pamela Glazner, Constitutional Doctrine Meets Reality: Don't Ask, Don't Tell in Light of Lawrence v. Texas, 46 Santa Clara L.Rev. 635 (2006); Note, The Military's Ban on Consensual Sodomy in a Post-Lawrence World, 21 Wash. U.J.L. & Pol'y 379 (2006); Jeffrey S. Dietz, Getting Beyond Sodomy: Lawrence and Don't Ask, Don't Tell, 2 Stan. J.C.R. & C.L. 63 (2005). This case is the second post-Lawrence challenge to the Act to be decided by a federal court of appeals.¹

I. Statutory and Regulatory Scheme

We begin by summarizing the statutory framework and the accompanying Department of Defense (Department) directives. During the 1992 campaign, President Clinton, preceding his first election, promised to revisit the longstanding Department policy of separating homosexual individuals from military service. After taking office, President Clinton directed the Secretary of Defense to review Department policy, and Congress undertook its own review.

As part of the congressional review, then-Chairman of the Joint Chiefs of Staff, Colin Powell, in testimony explicitly adopted by the Senate Armed Services Committee, explained the rationale for the policy of separating certain homosexual members of the military from continued service:

It is very difficult in a military setting, where you don't get a choice of association, where you don't get a choice of where you live, to introduce a group of individuals who are proud, brave, loyal, good Americans, but who favor a homosexual lifestyle, and put them in with heterosexuals who would prefer not to have somebody of the same sex find them sexually attractive, put them in close proximity and ask them to share the most private facilities together, the bedroom, the barracks, latrines, and showers. I think that this is a very difficult problem to give the military. I think it would be prejudicial to good order and discipline to try to integrate that in the current military structure.

S.Rep. No. 103-112 at 283 (1993).

Congress' review culminated in the passage of the Act. See National Defense Authorization Act for Fiscal Year 1994, Pub.L. No. 103-160, 107 Stat. 1547 § 571, codified at 10 U.S.C. § 654. The Act opens with a series of findings that echo General Powell's concerns: "military life is fundamentally different from civilian life;" "[s]uccess in combat requires military units that are characterized by high morale, good order and discipline, and unit cohesion;" and "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." See 10 U.S.C. § 654(a).

To avoid the risk to unit cohesion created by the continued service of those who are likely to engage in a homosexual act, the Act provides that members of the military are subject to separation from service where one of three findings is made: (1) the member has engaged or attempted to engage in a homosexual act;² (2) the member has "state[d] that he or she is a homosexual or words to that effect;" or (3) the member has married or attempted to marry a person known to be of the same biological sex. Id. § 654(b).

If a finding is made that a member of the military has engaged or attempted to engage in a homosexual act, the member may avoid separation by establishing that: (1) the conduct was a departure from the member's usual and customary behavior; (2) such conduct is unlikely to recur; (3) such conduct was not accomplished by use of force, coercion, or intimidation; (4) under the particular circumstances of the case, the member's continued presence in the military is consistent with the interests of the military in proper discipline, good order, and morale; and (5) the member does not have a propensity or intent to engage in a future homosexual act. Id. § 654(b)(1)(A)-(E). Similarly, a member found to have stated, in effect, that he or she is homosexual, may avoid separation by demonstrating "that he or she is not a person who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in a homosexual act." Id. § 654(b)(2).

Pursuant to authority granted by the Act, the Department issued directives for executing separation proceedings. The directives recite the three reasons under the Act for separation and provide that a member's statement that he or she is a homosexual "creates a rebuttable presumption that the [member] engages in, attempts to engage in, intends to engage in, or has a propensity to engage in a homosexual act." DOD Directive 1332.40 § E2.3 (1997). In considering whether a member has rebutted this presumption, the military considers: (1) whether the member has engaged in a homosexual act; (2) the member's credibility; (3) testimony from others about the member's past conduct; (4) the nature and circumstances of the member's statement; and (5) any other evidence relevant to whether the member is likely to engage in a homosexual act. Id.

II. The Complaint and Motion to Dismiss

The plaintiffs are twelve former members of the United States military who were separated from service under the Act. The plaintiffs' complaint asserted the following claims: (1) the Act violates the plaintiffs' right to substantive due process on its face and as applied; (2) the Act denies the plaintiffs equal protection of the law on the basis of sexual orientation; and (3) the portion of the Act that triggers separation proceedings based on a member's statement that he or she is homosexual violates the right to freedom of speech.

The government moved to dismiss the plaintiffs' complaint under Fed.R.Civ.P. 12(b)(6). The government also contended that the plaintiffs' due process and equal protection claims failed because the Act was subject only to rational basis review, and Congress' "unit cohesion" justification sufficed to sustain the law under this standard as a matter of law. It also argued that the evidentiary use of a member's statement that he or she is homosexual to prove that the member has engaged, intends to engage, or has a propensity to engage in a...