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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

LIEUTENANT COLONEL JANE ABLE,
PETTY OFFICER ROBERT HEIGL,
FIRST LIEUTENANT KENNETH OSBORN,
SERGEANT STEVEN SPENCER,
LIEUTENANT RICHARD von WOHLD, and
SEAMAN WERNER ZEHR,                                 94 CV 0974
                   Plaintiffs,

                                                   MEMORANDUM
                                                       AND
-against-                                             ORDER


UNITED STATES OF AMERICA,
WILLIAM J. PERRY, SECRETARY OF
DEFENSE, in his official capacity,
and FEDERICO F. PENA, SECRETARY OF
TRANSPORTATION, in his official
capacity,
                   Defendants.

SULLIVAN & CROMWELL
(David H. Braff, Michael Lacovara, Penny Shane,
Ellen Bresler, Edward A. Harris, Ann T. Kenny, of
counsel)
129 Broad Street
New York, New York - 10004
for plaintiffs.

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
(Ruth E. Harlow, Marc E. Elovitz, Matthew Coles,
of counsel)
132 West 43rd Street
New York, New York 10036
for plaintiffs.

LAMBDA LEGAL DEFENSE & EDUCATION FUND
(Beatrice Dohrn, Evan Wolfson, of counsel)
666 Broadway
New York, New York 10012
for plaintiffs.

DEPARTMENT OF JUSTICE
(Frank W. Hunger, Zachary W. Carter, John A.
Rogovin, Charles S. Kleinberg, David J. Anderson,
Vincent M. Garvey, Margaret H. Plank, Robert A. Van
Kirk, Kevin W. Simpson, Mark T. Quinlivan, of counsel)
901 E Street, N.W., Room 1022
Washington, D.C. 20530
for defendants.

DEPARTMENT OF THE ARMY

Major Douglas K. Mickle, Captain Tara 0. Hawk,
Office of the Judge Advocate General, of counsel)
for defendants.

NICKERSON, District Judge:

    Plaintiffs, six members of the United States Armed
Services (the Services) who have stated that they are
homosexual, brought this action for an order (1)
declaring invalid under the First and Fifth Amendments
Section 571 of the National Defense Authorization Act
for the Fiscal Year 1994, 10 U.S.C.  654 (the Act)
concerning a new policy as to homosexuals, and the
directives issued under the Act (the Directives) , and
(2) enjoining the government from enforcing the Act and
the Directives.

    This court has jurisdiction under 28 U.S.C.  1331
and 1346. Venue lies here under 28 U.S.C.  1391.

    On April 4 and May 9, 1994, this court on
plaintiffs' motions preliminarily enjoined defendants
from enforcing the Act and the Directives against
plaintiffs based on their statements of sexual
orientation. Able v. U.S., 847 F. Supp. 1038 (E.D.N.Y.
1994); Able v. U.5~, No. 94 CV 0974 (E.D.N.Y. May 9, 1994)

    On September 14, 1994, this court granted
defendants' motion to dismiss the complaint as to
plaintiffs' intimate association, vagueness and
overbreadth claims, but denied defendants' motion to
dismiss the first amendment and equal protection
claims. Able v. U.S., 863 F. Supp. 112 (E.D.N.Y.
1994)

    While the motion to dismiss was pending,
defendants appealed the court's preliminary injunction
orders pursuant to 28 U.S.C.  1292 (a) (1). On January
3, 1995, the Court of Appeals for the Second Circuit
remanded the case, holding that this court had not
applied the proper preliminary injunction standard and
ordering consolidation of a preliminary injunction
hearing with a trial on the merits of the permanent
injunction. The Court of Appeals directed that "[the
preliminary injunction orders shall remain in effect
until March 31, 1995 upon which date they shall expire
unless reentered by the district court following a
trial on the merits. . . ." Able v. U.S., 44 F.3d 128,
133 (2d Cir. 1995) (per curiam)

    On March 6, 1995, this court held that under the
pleadings plaintiffs lacked standing to claim that (1)
the Act violates their right to expressive association,
(2) subsection 654(b) (1) violates their rights to free
expression and equal protection, and (3) subsection
654(b) (3) violates their right to equal protection.
Able v. U.S., No. 94 CV 0974 (E.D.N.Y. Mar. 6, 1995).

    From March 13 to March 16, 1995 the court tried
the merits of plaintiffs' remaining claims.

              THE GENESIS OF THE ACT

    On January 29, 1993 President Clinton directed
then Secretary of Defense Les Aspin to submit a draft
executive order "ending discrimination on the basis of
sexual orientation in determining who may serve" in the
Services, in a manner "consistent with the high
standards of combat effectiveness and unit cohesion our
Armed Forces must maintain." Memorandum from President
Clinton to the Secretary of Defense (Jan. 29, 1993),
Ex. PX-21.

    On July 19, 1993, Secretary Aspin announced a new
policy as to the service of gay men and lesbians in the
Services, stating that "sexual orientation is
considered a personal and private matter . . . and is
not a bar to service entry or continued service unless
manifested by homosexual conduct. " Memorandum from
Secretary Aspin to the Secretaries of the Army, Navy
and Air Force and the Chairman of the Joint Chiefs of
Staff (Jul. 19, 1993), Ex. PX-180

    From March through late July 1993 the Armed
Services Committees of the House and Senate held public
hearings on the matter. Secretary Aspin presented the
administration's new policy to the Senate Armed
Services Committee on July 20, 1993.

    Both Committees issued reports recommending
legislation practically identical to what is now the
Act, which became effective November 30, 1993. The
Directives became effective February 28, 1994. On
March 15, 1994, the United States Coast Guard announced
its policy on homosexual conduct "in lock step" with
that of the other military services. Memorandum from
Secretary Of Transportation Federico Pena to the
Commandant, United States Coast Guard (Mar. 15, 1593),
Ex. JX-13 at p. B301327.

           THE ACT AND THE DIRECTIVES

    Section 654, entitled Policy Concerning
Homosexuality in the Armed Forces, contains in
subsection (a) "fifteen findings" that say, among other
things:

    (6) Success in combat requires military units
    that are characterized by high morale, good order
    and discipline, and unit cohesion.
    (13) The prohibition against homosexual conduct is
    a long-standing element of military law that
    circumstances of military service.
    (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
    essence of military capability.

    Subsection (b), setting forth the Act's policy,
states, in substance, that a member "shall be
separated" from the Services if one or more of the
following three findings is made:

    (1) The member is found to have engaged,
attempted to engage, or solicited another to engage, in
homosexual acts, unless the member has demonstrated,
among other things, that "such conduct" departs from
the member's usual behavior and he or she "does not
have a propensity or intent to engage in homosexual
acts."

    (2) The member "has stated that he or she is a
homosexual or bisexual or words to that effect," unless
"there is a further finding" made in accordance with
regulations that "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."

    (3) The member has married or attempted to marry
someone of the same sex.

    Subsection (f) contains definitions. "Homosexual"
includes "the terms `gay' and `lesbian'" and means a
person who engages, attempts to engage, has a
propensity" to engage, or "intends" to engage, in
homosexual acts. The term "homosexual act" means any
bodily contact between members of the same sex to
satisfy sexual desires or any such contact that a
reasonable person would understand to "demonstrate a
propensity" or "intent" to engage in such an act.
The Act does not define the word "propensity."

    On December 21, 1993 Secretary Aspin issued a
memorandum and Directives concerning the implementation
of the new policy. Memorandum from Secretary Aspin to
the Secretaries of the Military Departments et al.
(Dec. 21, 1993), Ex. JX-4. They provided that an
applicant to become a member will not be asked about
his or her sexual orientation, that "homosexual
orientation is not a bar" to "service entry or
continued service," but that "homosexual conduct" is.
Such "conduct" includes not only homosexual "acts" but
also a statement by a member or applicant that
"demonstrates a propensity or intent to engage" in such
acts. A statement that demonstrates the "propensity"
will thus require separation unless the member rebuts a
presumption that he or she engages or intends to engage
in "homosexual acts" or has a "propensity" to do so.
Directives 1332.14, 1332.30, & 1304.26, Exs. JX-6, JX-
7, & JX-9.

    As examples of statements giving rise to the
presumption the Directives include "I am a homosexual,
"I am gay, " "I am a lesbian, " and "I have a homosexual
orientation." Id. The Directives purport to
distinguish homosexual "orientation" from homosexual
"propensity, " defining homosexual "orientation" as "an
abstract sexual preference for persons of a particular
sex, " and homosexual "propensity" as evidencing "a
likelihood that a person engages in or will engage in"
homosexual acts. Id.

     The Directives go on to say that "a statement
in homosexual acts is grounds for separation not
because it reflects the member's sexual orientation,
but because the statement indicates a likelihood that
the member engages in or will engage in homosexual
acts." Id.

     The Directives do not explain how an "orientation"
means an "abstract preference" if not revealed but if
admitted becomes evidence of a "likelihood" to commit
acts, a likelihood that requires discharge.]


     THE ISSUE BEFORE THE COURT

     The six plaintiffs have "stated" in their
complaint that they are "homosexuals." That is the
`only thing that they have done that is now before the
court. Under the state of the pleadings the court thus
does not consider the case to draw into question the
validity of any subsection of the Act other than
(b)(2).

    Subsection (b) (2) has two aspects pertinent to
this case. It provides for the discharge of a member
because he or she (1) has made a "statement" and (2)
the statement is of his or her status, that is, his or
her "propensity."

    Plaintiffs urge that subsection (b) (2) is invalid
both under the First Amendment and the equal protection
component of the due process clause of the Fifth
Amendment.

              THE LEGISLATIVE PURPOSE

   Before addressing the constitutional validity of
subsection (b) (2) the court looks to the text of the
entire Act to determine the end to which the Act is
directed.

    The Act says that its objective is to reach
"homosexual conduct, " that is, "homosexual acts" as
they are defined in the Act. Thus finding (13) in
subsection (a) says that the "prohibition against
homosexual conduct" in the military is "necessary."
Finding (15) indicates that the prohibition against
such conduct is so necessary that even those who have a
mere "propensity" to engage in that conduct must be
discharged from the military because their status as
homosexuals makes it likely that they will commit
homosexual acts.

    The statement "I am a homosexual" or "I have a
homosexual propensity" is thus prohibited by the terms
of the Act not because the statement itself causes harm
but because one can infer from it that the speaker will
do harmful things, namely, commit "homosexual acts"
injurious to "morale, good order and discipline, and
unit cohesion."

              THE FIRST AMENDMENT

   The free speech clause of the First Amendment
reads: "Congress shall make no law . . . abridging the
freedom of speech."

    The first question for the court is whether the
government may under the First Amendment prohibit a
member of the Services from stating that he or she is a
homosexual, that is, that he or she has an innate
feeling within that indicates the status of a
homosexual.

    Plaintiffs' statements that they are homosexual
constitute "speech," and important, not trivial,
speech. The First Amendment recognizes the value of
speech not only as an instrument, that is, a mechanism
by which ideas may be exchanged, but also as an
expression of personal dignity and integrity. Speech
is worthy of First Amendment protection not only when
it contributes to the "marketplace of ideas" or assists
in the search for "truth, " but also when it articulates
"the premise of individual dignity and choice upon
which our political system rests." Cohen v.
California, 403 U.S. 15, 24, 91 S. Ct. 1780, 1788
(1971) . "Those who won our independence believed that
the final end of the State was to make men free to
develop their faculties. . . . They valued liberty
both as an end and as a means." Whitney v. California,
274 U.S. 357, 375, 47 S. Ct. 641, 648 (1927) (Brandeis,
J., joined by Holmes, J., concurring)

    Plaintiffs have done no more than acknowledge who
they are, that is, their status. The speech at issue
in this case implicates the First Amendment value of
promoting individual dignity and integrity, and thus is
protected by the First Amendment from efforts to
prohibit it because of its content.

    Regulation of the content of speech that involves
First Amendment concerns is presumed invalid. See
R.A.V. v. City of St. Paul, --- U.S. ---, ---, 112 S.
Ct. 2538, 2542 (1992) ; Simon & Schuster. Inc. v. New
York Crime Victims Bd., 502 U.S. 105, 116, 112 S. Ct.
501, 508 (1991) . The government may regulate its
content only upon a showing that such regulation
promotes a "compelling interest" and that the
government has chosen "the least restrictive means" to
further the interest. Sable Communications of
California. Inc. v. F.C.C., 492 U.S. 115, 126, 109 S.
Ct. 2829, 2836 (1989)

    The court recognizes that the judgments of
Congress and the military with regard to military
affairs are entitled to substantial deference, and that
courts "lack the competence" to make policy decisions
in the military context. See Goldman v. Weinberger,
475 U.S. 503, 507, 106 S. Ct. 1310, 1313 (1986)
Rostker v. Goldberg, 453 U.S. 57, 65, 101 S. Ct. 2646,
2652 (1981). But that does not mean that courts are
not competent or should abdicate their responsibility
to review the constitutionality of military decisions.
"When Congress' exercise of one of its enumerated
powers clashes with those individual liberties
protected by the Bill of Rights, it is [the courts']
`delicate and difficult task' to determine whether the
resulting restriction on freedom can be tolerated.
United States v. Robel, 389 U.S. 258, 264, 88 S. Ct.
419, 424 (1967) (citations omitted).

    A court need not determine the wisdom of a
particular military policy in order to determine
whether that policy conflicts with the Constitution.
Even in the military context, regulation of speech
based on content survives constitutional scrutiny only
if it is "no more than [what is] reasonably necessary
to protect [a] substantial government interest." Brown
v. Glines, 444 U.S. 348, 355, 100 S. Ct. 594, 600
(1980)

   A

    Defendants argue that subsection (b) (2) does not
offend the First Amendment because the subsection is
ultimately directed solely at the prohibition of acts
and gives members who reveal their homosexual
orientation" an opportunity to rebut the presumption
that a member with such an "orientation" will either
commit undesirable acts or has a "propensity" to commit
such acts.

    In advancing this argument, defendants reject old
myths previously offered to justify a ban on service by
homosexuals.

    From the early 1920's through the 1970's,
homosexuals were deemed unfit for service because
homosexuality was considered a "mental illness" or a
"personality disorder." See Prepared Statement of Dr.
David F. Burrelli, S. Hrg. 103-845, Ex. JX-1 at pp. 13-
14. In 1982, the Department of Defense issued a policy
mandating dismissal of homosexuals in part "to prevent
breaches of security" that presumably would arise if a
closeted homosexual were blackmailed. See id. at p.
15. Even as recently as 1993, some proponents of
retaining the complete ban testified that such a policy
was necessary because homosexuals are more likely, as a
group, "to spread infectious diseases such as hepatitis
and syphilis." See Statement of Col. John Ripley,
H.A.S.C. Hrg. 103-18, Ex. JX-2 at pp. 89-90.

    The legislative record shows that the Act and the
Directives are not premised on these beliefs.
Defendants do not contend that the new policy was
enacted in response to a finding that gay men and
lesbians have physical or psychological defects
rendering them unfit to serve, pose security risks, or
are more likely than heterosexuals to violate a code of
conduct or other rules generally. See Defendants'
Responses to Plaintiffs' Requests for Admission, Ex.
PX-13 at pp. 5-8. Indeed, defendants admit that
Congress "clarified that the proscription on service
has nothing to do with unjustified assumptions that
homosexuals are not just as capable physically,
mentally and psychologically to serve in the United
States military as heterosexuals." Transcript of
Defendants' Closing Statement at p. 256.

    High-ranking administration officials and military
officers certified the demonstrated ability of
homosexuals to serve competently and conscientiously.
Secretary Aspin, in presenting the administration's new
policy, testified to the Department of Defense's
recognition "that homosexuals have served with
distinction in the Armed Forces." S. Hrg. 103-845, Ex.
JX-1 at p. 702. General Norman Schwartzkopf noted that
"homosexuals have served in the past and have done a
great job serving their country." S. Hrg. 103-845, Ex.
JX-1 at p. 612. Major Kathleen Bergeron affirmed that
in her experience, homosexuals who eventually had been
separated "had an honorable record and served with
distinction." S. Hrg. 103-845, Ex. JX-1 at p. 612.
General Colin Powell, discussing the arguments of those
who believe that homosexuals should be allowed openly
to serve, stated that "[t]hey note correctly that
homosexuals have privately served well in the past and
are continuing to serve well today." S. Hrg. 103-845,
Ex. JX-1 at p. 707.

    Thus, the government, including Congress, believed
that the admission of homosexuals into the Services did
not pose an uncontrollable risk that they would commit
acts inherently dangerous to morale, good order and
discipline, and unit cohesion, and manifested that
belief by allowing homosexuals to enter the Services.

    The government's confidence was justified by the
fact that over the years thousands of homosexuals have
served in the Services ably and honorably before the
Act became law. By the time the Act was passed, the
old myths had finally been abandoned.

    But despite its recognition that homosexuals do
not by their nature pose a risk to the military mission
or lack competence as soldiers, the government elected
to allow them to join and remain in the Services only
on the condition that they remain silent regarding
their status. The government justified this condition
by saying that it needed to use a statement of
orientation as evidence of a likelihood to engage in
prohibited acts in order to forestall the commission of
such acts.

    To presume from a person's status that he or she
will commit undesirable acts is an extreme measure.
Hitler taught the world what could happen when the
government began to target people not for what they had
done but because of their status.

    Thirty three years ago the Supreme Court held it
was cruel and unusual punishment prohibited by the
Eighth Amendment to subject an admitted narcotics
addict to a misdemeanor prosecution on the theory that
his addiction justified an inference that he had
possessed or in the future would possess drugs.
Robinson v. California, 370 U.S. 660, 82 S. Ct. 1417
(1962) . See also Powell v. Texas, 392 U.S. 514, 543,
88 S. Ct. 2145, 2159 (1968) (Black, J., concurring)
("Punishment for a status is particularly obnoxious,
and in many instances can reasonably be called cruel
and unusual, because it involves punishment for a mere
propensity, a desire to commit an offense; the mental
element is not simply one part of the crime but may
constitute all of it.")

    Robinson's status as a narcotics addict was self-
acquired. How much worse it is to infer the commission
of acts from one's homosexual status, which may well be
acquired at birth or in early childhood. See John C.
Gonsiorek and James D. Weinrich, eds., Homosexuality:
Research Implications for Public Policy 2 (1991)

    Defendants recognized that a policy mandating
discharge of homosexuals merely because they have a
homosexual orientation or status could not withstand
judicial scrutiny. As Jamie Gorelick, Counsel to the
Department of Defense, stated at the Senate hearing:
"The reason we do not discharge people because we
believe them to have a homosexual orientation is
because in 1981 it was recognized that if we did have a
status-based as opposed to a conduct-based rule, that
it would be vulnerable to the courts." S. Hrg. 103-
845, Ex. JX-1 at p. 777.

    Defendants therefore designed a policy that
purportedly directs discharge based on "conduct," and
craftily sought to avoid the First Amendment by
defining "conduct" to include statements revealing
one's homosexual status. To say "I have a homosexual
orientation, " a mere acknowledgment of status, is thus
transmogrified into an admission of misconduct, and
misconduct that the speaker has the practically
insurmountable burden of disproving.

    As noted above, the Directives purport to
distinguish between homosexual "orientation" and
homosexual "propensity," defining the former as the
quality of having an "abstract sexual preference for
members of the same sex" and the latter as the quality
of having such a preference that presumably is
sufficiently concrete to indicate a "likelihood" that
the preference will be acted upon.

    The court regards the definition and treatment of
these terms to be nothing less than Orwellian.
Although the Act and the Directives are written in such
a manner as to give the impression that there is a
principled distinction between the two characteristics,
only a brief critique will demonstrate that in practice
no such distinction exists.

    Neither the Act nor the Directives explain how to
differentiate an orientation'' from a ``propensity,
although the Act's avowed policy to insure that
"homosexual orientation" not be treated as a "bar" to
service would seem to make such differentiation
crucial. Those who formulated the policy testified
that any distinction between the two is merely
"hypothetical," Testimony of Counsel Gorelick, S. Hrg.
103-845,Ex. JX-1 at p. 800, and the Directives, as
decreed by Congress, equate a statement of
"orientation" with an admission of at least a
"propensity." See Directives 1332.14 & 1332.30, Exs.
JX-6 & JX-7, and S. Rep. 103-112, Ex. JX-15 at p- 294.

    These facts seem to the court to be powerful
evidence that despite their semantic gymnastics,
defendants themselves did not perceive a difference
between the two. Plainly they intended that the
articulation of a mere "orientation" be sufficient to
initiate a discharge proceeding. Thus, one who does no
more than express an "orientation" is faced with the
prospect of somehow showing that he or she does not
have a "propensity" to engage in prohibited acts in
order to avoid discharge.

    The word "propensity" is generally understood and
defined to mean a "natural inclination" or an "innate
or inherent tendency." Webster's Third New
International Dictionary 1817 (1986); see also Random
House Dictionary of the English Language 1152 (1966)
"Innate means "existing in one from birth" or
"inborn." Random House at 733; see also Webster's at
1165.

    Defendants make much of the opportunity to rebut
the presumption of propensity. But that opportunity is
an ignis fatuus. Neither the Act nor the Directives
suggest how one who is born with fro innate tendency, an
"orientation" or a "propensity," to commit a homosexual
act can prove that he or she does not have such an
orientation or propensity. Furthermore, the testimony
at the Senate hearing shows that a member who admits to
a homosexual orientation has only a "hypothetical"
chance to escape discharge.

    As stated by Ms. Gorelick, the rebuttable
presumption places a "very high burden" on the member,
and in a situation where "someone made the statement
[of homosexuality] knowingly and was not drunk or had
not lost his or her mind," it would be "very unlikely"
that the burden could be overcome by the member's
assertion that he or she does not engage or have a
propensity to engage in prohibited acts. S. Hrg. 103-
945, Ex. JX-l at p. 772. Indeed, Ms. Gorelick
testified that even if the speaker completely
disclaimed his or her acknowledgement of his or her
sexual orientation, asserting that "I was
misunderstood, I did not mean it, it was a joke," that
disclaimer would only "hypothetically suffice" to rebut
the presumption. Id.

    Thus, the policy treats a statement of homosexual
orientation as proof of the case. Once such a
statement is made, the speaker is judged guilty until
proven innocent of committing misconduct the government
considers so threatening to the military mission that a
member may be discharged for it. This seems to the
court a rather draconian consequence of merely
admitting to an orientation that Congress has
determined to be innocuous.

   Defendants point to three isolated instances where
Navy members have been able to escape discharge despite
having stated that they were homosexual as evidence
that the Act does not punish expressions of homosexual
orientation but merely uses them as evidence in an
effort to preclude the commission of prohibited acts.
See Administrative Ed. Records Nos. 13, 15, & 16, Exs.
DX-l, DX-2, & DX-3.

   An examination of the records (such as they are)
of these proceedings shows that the results were
aberrations stemming from a dysfunctional application
of the policy. In one, the member had said "she
thought she might be gay." In another, the member had
stated "I'm kind of confused about my sexual
preference." And in the third the member had said he
was homosexual only in what he thought was a
confidential session with a Navy counselor who tried to
make him "comfortable" and "as free as possible" so as
to get to the "root" of the member's problems.

    In each of these cases, the member stated at the
discharge hearing that he or she was gay, but was
apparently able to escape discharge by stating that he
or she had not engaged and did not intend to engage in
"homosexual acts." But Congress' specific intent was
that "a member cannot rebut the presumption simply
through a promise to adhere to military standards of
conduct in the future, nor can the member rebut the
presumption by a statement to the effect that he or she
has a propensity towards homosexuality but has not
acted on it." S. Rep. 103-112, Ex. JX-15 at p. 294.

    These three atypical results are obviously
aberrations that cannot be taken to show that the Act
holds out any realistic opportunity to rebut the
presumption.

    The plain fact is that subsection (b) (2) burdens
speech based solely on its content by subjecting the
member to a discharge process in which the member has
only at best a hypothetical chance to escape
separation. The Act works to discharge or subject to
discharge proceedings members who possess no more than
an "orientation" 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.

    This court concludes 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.

    In this court defendants argued something not even -
mentioned in the fifteen findings of the Act. In
substance, they contended that a majority of the
heterosexuals in the Services would not, for a variety
of reasons, like to know that there were homosexuals
serving with them and that this would result in a
serious detriment to "unit cohesion." Defendants now
say that the Services are justified in deferring to
this feeling of heterosexuals by imposing silence on
homosexuals.

    Defendants' advancement of this alternative theory
to justify the Act indicates that, once Congress
decided to try to get all known homosexuals out of the
Services, the chief concern was to draft legislation to
insure that the enactment would survive judicial
review. See also Testimony of Counsel Gorelick and
Gen. John p. Otjen, S. Hrg. 103-845, Ex. JX-l at pp.
775-78,812-21, 829-30. The Committee hearings show
that legal counsel thought the best way to do this was
to pretend that the concern was over, not the mere
presence of homosexuals in the Services, but their
potential acts. According to counsel, if the Act
provided forthrightly that open homosexuals shall be
banned because heterosexuals will not stand for them,
it would be vulnerable under the Constitution of the
United States. See Testimony of Counsel Gorelick, S.
Hrg. 103-845, Ex. JX-l at p. 777.

    So the lawyers evolved the Byzantine and complex
provisions described above. The Act was designed to
say nothing about heterosexual animosity towards
homosexuals. The Act's fifteen findings avoid using a
single word about heterosexuals, and fail to say what,
if any, effect the reactions of heterosexuals may have
on unit cohesion.

    Those who opposed the removal of the total ban on
homosexuals and testified at the hearings were more
candid. They said that the concern was with the
potential reaction of heterosexuals if they knew who
were the homosexuals serving with them.

    Although the Act's findings are silent as to the
response of heterosexuals to the presence of known
homosexuals in the Services, the court will analyze the
Act as if it said that a statement of homosexual status
was in itself an evil because heterosexuals would not
like to hear it and would react so as to damage unit
cohesion. See Weinberger v. Wiesenfeld, 420 U.S. 636,
648 n.16, 95 S. Ct. 1225, 1233 n.16 (1975) (courts need
not "accept at face value assertions of legislative
purposes, when an examination of the legislative scheme
and its history demonstrates that the asserted purpose
could not have been a goal of the legislation")

    There certainly was much testimony at the
Committee bearings, particularly from generals and
other high-ranking officers, opposing any lifting of
the ban on homosexuals because of the expected
reactions of heterosexuals. It is fair to say that 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. See, e.g., Testimony of Maj. Bergeron,
S. Hrg. 103-845, Ex. JX-1 at pp. 630-31 (expressing
concern that members' children "be exposed to that
lifestyle"), Testimony of Capt. Gordon Holder, S. Hrg.
103-845, Ex. JX-1 at p. 544 (questioning ability to
lead subordinates "in an area . . . basically against
[his] moral standards) ; Testimony of Comm. James
Pledger, S. Hrg. 103-845, Ex. JX-1 at pp. 541-42
(reporting that significant number of his crew "took
exception" to lifting ban "based on moral
convictions")

    General John P. Otjen, a staunch opponent of any
lifting of the ban and the chairman of the Military
Working Group that recommended the policy that
eventually became the Act, sounded a theme repeatedly
stated by high-ranking officers that "when somebody
identifies themselves as homosexual" "that is
disruptive to unit cohesion. . . ." S. Hrg. 103-845,
Ex. JX-1 at p. 780. See also id. at p. 821 ("[B]ased
on my experience, [a] statement [of homosexual
orientation] alone will cause disruption within the
unit.").

    General Schwartzkopf testified that "[t]he
introduction of an open homosexual into a small unit
immediately polarizes that unit." S. Hrg. 103-845, Ex.
JX-1 at pp. 595-96. See also S. Rep. 103-112, Ex. JX-
15 at pp. 279-80. General Powell said that
"[h]omosexuals over history who have been willing to
keep their orientation private have been successful
members. . . ," S. Hrg. 103-845, Ex. JX-1 at p. 708,
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."
Id. See also Sen. Rep. 103-112, Ex. JX-15 at p. 278.
The Report of the Association of the United States Army
stated: "Heterosexual animosity toward known
homosexuals can cause latent or even overt hostility,
resulting in degradation of team or unit esprit."
H.A.S.C. Hrg. 103-18, Ex. JX-2 at p. 337.

    This heterosexual animosity towards homosexuals is
by its terms based on irrational prejudices. But the
government advances two arguments to attempt to refute
the fact that the policy of requiring secrecy was based
on irrational stereotypes.

    First, they say that the policy "seeks to
accommodate the privacy interests of servicemembers.

    This seems to the court the most incongruous of
arguments. After passage of the Act the showers, the
latrines and the barracks became no more private than
they were before. As defendants say, "Privacy is
extremely limited in the military."

    To "accommodate" the privacy of heterosexuals
presumably means, for example, to keep their naked
bodies safe in the showers from the stares of
homosexuals. But if indeed there are homosexuals who
wish to peek at naked bodies, they might do so quite as
readily when their orientation is a secret as when it
is open. The only difference will be that
heterosexuals will not know which of their servicemates
are homosexuals, and heterosexuals will have reason to
have a generalized suspicion of everyone in the
showers, hardly a circumstance likely to increase
"cohesion."

    To suggest to heterosexuals that the secrecy
policy will "accommodate" their privacy interests is to
attempt to mislead them. They are not dunces or
ostriches. They can hardly be unaware that because of
the passage of the Act homosexuals are serving with
them.

    Second, defendants contend that the policy somehow
addresses the concern about "sexual tension" in the
unit. The argument is based on the proposition that
homosexuals, following their "tendencies," will behave
in improper ways that will give rise to such tension.

    This was an argument advanced before the Senate
Committee in support of the total ban on homosexuals.
See. e.g., S. Hrg. 103-845, Ex. JX-1 at pp. 535-36
(testimony of Fleet Master Chief Ronald Carter), pp.
763-64 (statement of Gen. Gordon Sullivan), pp. 604-05
(testimony of Maj. Bergeron). It can hardly have force
now when homosexuals are not banned and will be serving
in units. There is no reason to believe that such
improper behavior, if it occurs, would be more likely
to occur because a homosexual had admitted his
orientation rather than kept it a secret.

    Moreover, inappropriate behavior by a homosexual,
whether in the closet or not, is susceptible of control
by the general regulations. The Uniform Code of
Military Justice, 10 U.S.C.  801 et seq., contains
numerous provisions that target such misconduct,
prohibiting rape, 10 U.S.C.  920, sexual harassment,
10 U.S.C.  893, and fraternization, 10 U.S.C.  934.

    There was, of course, evidence presented to
Congress to the effect that the presence of individuals
who acknowledged their homosexual orientation would
cause no significant breakdown in cohesion. In a
report commissioned by Secretary Aspin, an
interdisciplinary team of researchers from the National
Defense Research Institute of the RAND Corporation (the
RAND Group) concluded that "although some disruptions
might result from having acknowledged homosexuals
serving in the military," "the experience of analogous
organizations . . . suggests that any increase is
likely to be quite small," RAND National Defense\
Research Institute, Sexual Orientation and U.S.
Military Personnel Policy: Options and Assessment
(1993) (the Rand Report), Ex. PX-1 at p. xxiv. The
RAND Group noted that in Canada, Israel, the
Netherlands, and Norway, "countries that have policies
of complete nondiscrimination," "no serious problems
were reported concerning the presence of homosexuals in
the force." Rand Report, Ex. PX-l at p. 14.

    A report by the United States General Accounting
Office (the GAO) in 1992 also recounted that analogous
organizations that have "accepted homosexuals into
their ranks . . . have generally not reported adverse
impacts." GAO, Report to Congressional Requesters,
Defense Force Management: DoD's Policy on Homosexuality
(Jun. 1992), Ex. PX-5 at p. 43.

    Furthermore, the RAND Group noted that although
the military had expressed in the 1940's similar,
indeed almost identical, fears about the reactions of
white members if there was racial integration of the
Services, in fact integration "did not `destroy' unit
cohesion and military effectiveness." Rand Report, Ex.
PX-1 at p. 189.

    While the empirical evidence developed by neutral
and objective organizations such as the RAND Group
supports the conclusion that any disruption would
probably be quite small, the court will assume arguendo
that Congress could have made a finding in the Act that
the reactions of heterosexuals would have a larger
impact. But even if the Act had included such a
finding, there are factors other than those mentioned
in the hearings that cast doubt on any such conclusion.

    What the court deems extraordinary is the almost
total lack of concern evidenced in the Congressional
hearings and the Committee reports as to the impact on
unit cohesion of the attempt to enforce secrecy on
homosexuals and to enlist them in the perpetration of a
hoax on heterosexuals. Common sense suggests that a
policy of secrecy, indeed what might be called a policy
of deception or dishonesty, will call unit cohesion
into question.

    If there is one thing that is undisputed and seems
self-evident, it is that cohesion depends on mutual
trust within the unit. The honor code for
servicemembers provides that they will not lie or
cheat, and for good reason. Honesty is a quality that
attracts respect. Secrecy and deception invite
suspicion, which in turn erodes trust, the rock on
which cohesion is built.

    The policy of the Act is not only inherently
deceptive. It also offers powerful inducements to
homosexuals to lie. An enlisted member may ask another
enlisted member his or her sexual orientation.
Testimony of Counsel Gorelick and Gen. Otjen, S. Hrg.
103-845,Ex. JX-1 at pp. 810-11. It is true that a
homosexual may answer "no comment." But a homosexual
who answers truthfully is subject to discharge
proceedings. A heterosexual is not. The pressure to
lie is obvious.

    There are no findings, even in the Committee
reports, assessing whether a policy of secrecy and
deception is more or less deleterious to unit cohesion
than would be a policy of openness and honesty. The
court has no findings before it calculating the net
effect of the policy on unit cohesion.

    The task of this court is to determine the
constitutionality of the policy adopted by Congress,
not its morality. But heterosexuals and homosexuals
alike would be entitled to think it demeaning and
unworthy of a great nation to base a policy on pretense
rather than on truth. To invite someone with a
homosexual orientation to join the Services, then to
throw that person out solely because that orientation
is revealed from something he or she said, and finally
to pretend that the discharge was not because of the
person's orientation, might appear to all members,
heterosexual and homosexual, less than honorable, with
incalculable effect on "high morale, good order and
discipline, and unit cohesion."

    Even if the First Amendment were to tolerate the
prohibition of a truthful self-identification by
homosexual because it offends the sensibilities of some
heterosexuals it surely would require a legislative
finding that the consequences of disclosure would be
infinitely more serious than anything revealed in the
record before Congress. Even General Otjen conceded
that the Services would fulfill their mission if
homosexuals were permitted to reveal their orientation.
See Deposition of General Otjen, Ex. PX-19 at p. 139
(confirming that subordinate members of the Services
follow their orders whether or not they like them).
See also Testimony of Gen. Calvin Wailer, S. Hrg. 103-
845, Ex. JX-l at p. 401 ("If the ultimate decision is
to allow openly declared homosexuals to serve in the
Armed Forces, I am confident that the military
leadership, as well as the military personnel, will
salute and make the best of that situation.")

    In any event 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.

    "If 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." Texas v. Johnson, 491 U.S. 397, 414,
109 S. Ct. 2533, 2545 (1989) . See also Terminiello v.
Chicago, 337 U.S. 1, 4, 69 S. Ct. 894, 896 (1949)
Healy v. James, 408 U.S. 169, 187-88, 92 S. Ct. 2338,
2349 (1972); Simon & Schuster, supra, 502 U.S. at 118,
112 S. Ct. at 509.

    This principle applies with particular force
where, as here, heterosexuals find the mere idea of
homosexual orientation disagreeable based largely on
irrational stereotypes.

    The court holds that subsection (b) (2) of the Act
and its accompanying Directives are invalid under the
First Amendment.

              EQUAL PROTECTION


    The due process clause of the Fifth Amendment
makes binding upon the federal government the
Fourteenth Amendment's command that no state shall
"deny to any person within its jurisdiction the equal
protection of the laws." See Bolling v. Sharpe, 347
U.S. 497, 498-99, 74 S. Ct. 693, 694 (1954).

    The court analyzes Fifth Amendment equal
protection challenges by the same standards as those
applicable to claims of violation of the equal
protection clause of the Fourteenth Amendment. See
Weinberger, supra, 420 U.S. at 638 n.2, 95 S. Ct. at
1228 n.2.

    Because the Act gives to persons of one status,
heterosexual, the chance to exercise the fundamental
right of free speech and prohibits it to those of
another status, homosexual, defendants must at least
show that the policy is "tailored to serve a
substantial governmental interest." Police Department
of the City of Chicago v. Mosley, 408 U.S. 92, 99, 92
S.Ct. 2286, 2292 (1972)

    For the reasons discussed above, whether the
government intended that subsection (b) (2) prevent the
commission of prohibited "acts" or appease heterosexual
prejudices, defendants fail to make the required
showing.

    Even if defendants do believe that heterosexual
servicemembers will be so upset by a coworker's mere
statement of homosexuality as not to work cooperatively
in the unit, such a belief does not justify a
discriminatory policy.

    "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." Palmore v.
Sidoti, 466 U.S. 429, 433, 104 S. Ct. 1879, 1882
(1984), quoting Palmer v. Thompson, 403 U.S. 217, 260-
61, 91 S. Ct. 1940, 1962-63 (1971) (White, J.,
dissenting). Congress may not enact discriminatory
legislation because it desires to insulate heterosexual
servicemembers from statements that might excite their
prejudices.

    The court holds that subsection (b) (2) of the Act
and its accompanying Directives violate the equal
protection component of the Fifth Amendment.

               CONCLUSION

    The court declares subsection (b) (2) of the Act,
10 U.S.C.  654(b) (2), and the Directives implementing
that subsection invalid under the First and Fifth
Amendments and enjoins defendants from enforcing them
against plaintiffs.

    So ordered.

Dated:

   Brooklyn, New York

   March 30, 1995

   Eugene H. Nickerson, U.S.D.J.