Army’s Ban on Gays Is Held Invalid : Equal Protection Provision Violated, Federal Court Says

In a potentially far-reaching decision praised by gay rights activists, a federal appeals court Wednesday ruled unconstitutional Army regulations barring homosexuals from military service.

“We hold that the Army’s regulations violate the constitutional guarantee of equal protection of the laws because they discriminate against persons of homosexual orientation . . . and because the regulations are not necessary to promote a legitimate compelling governmental interest,” said a three-judge panel of the U.S. 9th Circuit Court of Appeals.

The 2-1 ruling, written by Judge William Norris, reversed a lower court ruling that had upheld a 1982 decision by the Army to bar the re-enlistment of Sgt. Perry J. Watkins, 39, of Tacoma, Wash., because of his homosexuality. Watkins, who received exemplary performance ratings throughout his 14-year military career, had admitted his sexual preference before he first enlisted in August, 1967, and occasionally performed as a female impersonator with the permission of his superiors.

Activists’ Viewpoint

The ruling was hailed by advocates of gay rights because, if upheld, it would grant the same special legal protection to homosexuals that the U.S. Supreme Court has conferred on those who are discriminated against because of their race or nationality. That protection could extend far beyond military service to government discrimination in employment and housing, some attorneys suggested.

The appellate ruling does not prohibit the Army or other branches of the military from forbidding certain types of sexual conduct, such as sodomy or oral copulation, as long as the prohibition applies to both heterosexuals and homosexuals.

“This is the most important judicial victory for gay rights ever issued by a court in the United States,” said Thomas Stoddard, executive director of the Lambda Legal Defense and Education Fund, a gay rights organization.

Wide Application Seen

“This is a major victory,” added Jeff Levi, executive director of the National Gay and Lesbian Task Force.

“I see (the decision) applying to all branches of government--state, federal and local,” said James Lobsenz, who represented Watkins in cooperation with the American Civil Liberties Union.

The appellate ruling, Lobsenz added, “says that any government action that distinguishes between the way that government treats heterosexuals and homosexuals is presumptively invalid in the same way that laws that distinguish between the treatment of blacks and whites are invalid. It puts it on the same place as race discrimination,” Lobsenz added.

The Army has the right to seek a rehearing of the decision by the entire 9th Circuit and by the U.S. Supreme Court.

An Army spokesman at the Pentagon said the service has not had a chance to completely review the decision and therefore would have no immediate comment.

Specifically, the court addressed two sets of Army regulations promulgated in 1981. One barred the re-enlistment of any soldier or officer “who desires bodily contact between persons of the same sex . . . with the intent to obtain or give sexual gratification.” A second set of regulations required the discharge of Army personnel who met the same criteria.

Earlier Regulations

The 1981 regulations were refinements of earlier and less specific regulations that barred homosexuals from service, the Army spokesman, Lt. Col. Greg Rixon, said. In 1984, the Army again changed the wording of the regulations to apply to anyone who “engages in, desires to engage in or intends to engage in homosexual acts.”

Rixon said he did not know why Watkins was allowed to enlist in 1967 and subsequently re-enlist when the Army had a specific policy of not accepting homosexual recruits.

Kathleen Taylor, executive director of the Washington state chapter of the ACLU, said of the appellate ruling, “We would assume that it bars discrimination by the Army on the basis of sexual orientation, period.”

The Navy and Air Force have similarly worded regulations, and would almost certainly be bound by the 9th Circuit decision if it survives review, she added.

In his opinion, Judge Norris noted that the Army regulations do not require the discharge of men or women found to have engaged in homosexual acts “solely from immaturity, curiosity, or intoxication.”

Judge’s Reasoning

Norris wrote: “If a straight soldier and a gay soldier of the same sex engage in homosexual acts because they are drunk, immature or curious, the straight soldier may remain in the Army while the gay soldier is automatically terminated.

“In short, the regulations do not penalize soldiers for engaging in homosexual acts; they penalize soldiers who have engaged in homosexual acts only when the Army decides that those soldiers are actually gay.”

That, the judge said, is a violation of the Constitution’s requirement for equal protection under the law.

Norris specifically rejected the Army’s contention that permitting homosexuals to serve would necessarily create morale and discipline problems. “The Supreme Court has decisively rejected the notion that private prejudice against minorities can ever justify official discrimination, even when those private prejudices create real and legitimate problems,” the judge wrote.

Norris was joined in his decision by Judge William Canby.

Dissenting View

In a dissenting opinion, Judge Stephen Reinhardt concluded “with great reluctance” that a recent landmark U.S. Supreme Court decision on the issue of homosexual rights (Bowers v. Hardwick) permits the Army to bar homosexuals from service.

“Like the majority,” Reinhardt wrote, “I believe that homosexuals have been unfairly treated both historically and in the United States today. Were I free to apply my own view . . . I too would conclude that the Army may not refuse to enlist homosexuals. I am bound, however, as a circuit judge to apply the Constitution as it has been interpreted by the Supreme Court . . . .”

In the Hardwick case, decided in 1986, the Supreme Court rejected a homosexual’s claim that a Georgia statute that makes sodomy between consenting adults a crime deprived him of his liberty without due process of law, in violation of the 14th Amendment to the Constitution. More specifically, the court ruled that the constitutionally protected right to privacy does not extend to acts of consensual homosexual sodomy.

“We simply read Hardwick as refusing to extend the constitutionally protected right to privacy to acts of homosexual sodomy,” Norris wrote. “The parties did not argue and the court explicitly did not decide the question whether the Georgia sodomy statue might violate the equal protection clause.” He added, “Nothing in Hardwick suggests that the state may penalize gays for their sexual orientation.”

The case has had a curious history. In May, 1982, the U.S. District Court in Seattle issued an injunction prohibiting the Army from discharging Watkins. The Army appealed to the 9th Circuit, which lifted the injunction and ordered the district court to rule on the merits of Watkins’ complaint.

The district court then ruled in favor of the Army, saying the regulations against homosexuals were constitutional. Today’s 9th Circuit decision, on an appeal by Watkins, reversed that lower court ruling. But it too can be appealed.

“I guess I’m happy,” Watkins told The Times in a telephone interview from his Tacoma home, “but it (could be) the first step in a long process so I don’t want to get too happy.”

If possible, Watkins said, “Most certainly I’d go back (into the Army).” He added, however, “I’m trying to find a job, period.”

Watkins said news coverage surrounding his case and poor references from the Army may have prevented him from getting a similar job in the private sector. “I can’t say it is definitely because of the publicity, but I’m sure it hasn’t helped any.” Although he worked for an airline for a brief period, he has been without a job for much of the last four years, he said.

Watkins said he is pleased that the ruling, “if upheld, will have a great benefit (for others).”

Even though Watkins’ homosexuality was common knowledge, an Army review board found “there is no evidence suggesting that his behavior has had either a degrading effect upon unit performance, morale or discipline, or upon his own job performance.”

In fact, in one performance report, a superior wrote that Watkins was “the best clerk I have ever known,” adding that he did “a fantastic job--excellent.” Another officer said of Watkins: “He has, in fact, become one of our most respected and trusted soldiers, both by his superiors and subordinates.”

In the year that ended Sept. 30, the Army discharged 242 enlisted men and 107 women for homosexuality, the Associated Press reported. The Navy let go 550 men and 104 women, while the Marine Corps discharged 67 men and 31 women. The Air Force discharged 194 men and 71 women. The four services combined discharged 32 officers, both men and women, during the same period.

Times staff writer Marlene Cimons in Washington contributed to this article.