Court Draws Fine Legal Line in Army-Gay Ruling, Experts Say

The position staked out last week by a federal appeals court barring the Army from excluding homosexuals is, in the view of several constitutional scholars, a lonely beachhead of legal theory certain to draw heavy fire in the months ahead.

In an unprecedented ruling, a three-judge panel of the U.S. 9th Circuit Court of Appeals accepted the proposition that homosexuals are entitled to the same kind of special legal protection that courts have previously afforded only to racial and ethnic minorities.

Specifically, the judges held in a 2-1 decision that laws and regulations that distinguish between homosexuals and heterosexuals are inherently suspect. To justify such distinctions, the court said, the government must produce the same kind of compelling reasons required for laws that distinguish on the basis of race or nationality.

An Open Question

Whether that view is eventually accepted by the U.S. Supreme Court as the law of the land is an open question.

“It’s way ahead of the pack,” added Robert C. Post, a constitutional scholar who is a professor of law at UC Berkeley’s Boalt Hall.

“I’m not able to find in the history of the 14th Amendment a suitable professional ground to suddenly treat the sexual disposition toward persons of one’s own gender . . . on the same basis as race,” said William Van Alstyne, Perkins professor of constitutional law at Duke University School of Law.

Despite his support of the decision, “There’s a good chance, I would think, of reversal,” said Father Robert F. Drinan, a former Massachusetts congressman who is secretary of the American Bar Assn.’s section on individual rights and responsibilities.

The 9th Circuit’s decision in the case of Watkins v. U.S. Army, several scholars said, seems to run against the grain of a 1986 case in which the U.S. Supreme Court ruled that states have the authority to make homosexual sodomy a crime. In that case, Bowers v. Hardwick, the court specifically declined to decide whether states have the same power to ban heterosexual sodomy, even though the Georgia statute involved made no distinction.

The 9th Circuit’s ruling also appears to buck a longstanding tradition in which the federal courts have given the military wide latitude to conduct its affairs, several scholars said.

Despite those concerns, several legal theorists said they believe that Judge William A. Norris, who wrote the majority opinion for the appellate court, ruled correctly in what is likely to become a landmark case, however it is resolved.

“The most significant thing is the conclusion that government action based solely on prejudice against homosexuals is invidious discrimination in the very same sense that action based on prejudice of a racial kind is invidious discrimination,” said Laurence H. Tribe, a professor at Harvard Law School and a leading liberal scholar in the field of constitutional law. Tribe unsuccessfully argued the Hardwick case before the Supreme Court.

“If this became the law of the land,” Tribe added, “it would mean that although the government has the power to regulate conduct, including homosexual conduct, it does not have the power, without very compelling justification, to exclude or discriminate against people because of their sexual orientation.”

The debate over the Watkins decision hinges on the distinction between government’s authority to regulate specific conduct and its power to control attitudes or desires.

Involved are two distinct constitutional principles--equal protection of the law, which guided the 9th Circuit in the Watkins case, and the right to privacy, which the Supreme Court used in making the Hardwick decision.

In the Watkins case, the appellate court overturned a lower court’s ruling that had upheld the Army’s 1982 decision to refuse re-enlistment to Sgt. Perry J. Watkins, 39, of Tacoma, Wash., because of his homosexuality. After a series of legal maneuvers, Watkins was finally separated from the service in 1984, after an exemplary 16-year career during which he repeatedly received outstanding ratings from his superiors.

Two Sets of Army Rules

Watkins was excluded on the basis of 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 fell into the same category.

Watkins admitted his homosexuality from the start, first acknowledging “homosexual tendencies” in a pre-induction medical questionnaire before his enlistment in August, 1967. But the Army never proved that Watkins had committed any homosexual acts while in the service.

After deciding that homosexuals are entitled to the special legal protection of “strict scrutiny” by the courts, Norris concluded that the Army had not demonstrated 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.

In concluding that homosexuals have the right to special legal protection, Judge Norris applied to homosexuals a specific legal principle that was first outlined in a 1944 U.S. Supreme Court decision involving the detention of Americans of Japanese descent during World War II.

Laws Inherently Suspect

In the majority opinion in the case of Korematsu v. United States, Justice Hugo L. Black wrote that laws that distinguish among races are inherently suspect and that only the strongest kind of justification permits courts to uphold such laws. Ironically, the court concluded that the government had met that burden in the case of the World War II detainees.

That the issue of race occupies a special place in the doctrine of equal protection also stems from the origins of the 14th Amendment to the Constitution. One of the Reconstruction amendments, the 14th Amendment prohibits states from denying citizens the equal protection of the laws. It was aimed largely at securing the civil rights of black citizens.

Since the Korematsu decision, the Supreme Court has extended the special protection of “strict scrutiny” sparingly. In 1973, the court refused to extend the protection to women as a class, but later decided that distinctions based on gender require an “intermediate” level of justification.

“It really amounts to a kind of sliding scale, so that as you move toward something that looks like racial discrimination, you’re going to insist on more in the way of justification,” said Kenneth L. Karst, a constitutional expert who is a professor at the UCLA School of Law.

‘Terms of Justification’

“The whole process of sorting out suspect classifications has been one of trying to see if the analogy to race is close enough,” Karst said. “The closer the analogy seems to the justices, the more they’re going to insist on in terms of justification.”

In the case of homosexuals, Norris concluded, the analogy to race was close. Karst agreed. But several scholars said that future reviews of Norris’ opinion, either by the entire 9th Circuit or by the Supreme Court, may result in a different conclusion.

It is possible, said Van Alstyne, the Duke University professor, that other judges may decide that laws that discriminate on the basis of sexual orientation require a level of justification less than that demanded by Norris.

The degree to which other judges are willing to protect homosexual orientation may depend largely on their view of the Hardwick case, many of the legal experts said.

In that 1986 case, which was decided on a 5-4 vote, the high 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. More specifically, the court ruled that the constitutionally protected right to privacy does not extend to acts of consensual homosexual sodomy.

Dissenting Opinion

In a dissenting opinion in the Watkins case, Judge Stephen Reinhardt condemned the Hardwick decision, but said he believes that it binds the lower courts and permits the Army to bar homosexuals from service.

“The Georgia statute at issue in Hardwick on its face barred all acts of sodomy,” Reinhardt wrote. “The (Supreme) Court could simply have upheld the statute without even mentioning the word homosexual. Instead, it carefully crafted its opinion to proscribe and condemn only homosexual sodomy.”

As a result, Reinhardt concluded, “I believe that after Hardwick the government may outlaw homosexual sodomy even though it fails to regulate the private sexual conduct of heterosexuals.”

But Norris disagreed.

“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 statute might violate the equal protection clause.” He added: “Nothing in Hardwick suggests that the state may penalize gays for their sexual orientation.”

The Hardwick case, one legal authority suggested, posed two questions: “Can the government criminalize homosexual sodomy?” and “Can the government criminalize heterosexual sodomy?” To the first question, the Supreme Court said, “Yes.” But it refused to answer the second question.

More Questions Posed

Two other questions were posed by the Watkins case: “Can the government, in this case, the military, penalize homosexual orientation without equally penalizing heterosexual orientation?” and “Can the government penalize homosexual sodomy without penalizing heterosexual sodomy?”

The answer to the first question was a resounding no. But the second question was not addressed by the appellate court because Watkins was not accused of having actually engaged in any homosexual acts.

If the Watkins case reaches the Supreme Court, Judge Anthony M. Kennedy, who is to be sworn in as the court’s newest member this week, is likely to play a key role in its resolution, the legal scholars said. Kennedy is to replace former Justice Lewis F. Powell Jr., who provided the critical swing vote in deciding Hardwick.