Court to Reconsider Ruling to Stop Army From Barring Gays

The 9th U.S. Circuit Court of Appeals agreed Thursday to reconsider its landmark ruling barring the Army from excluding homosexuals because of their sexual orientation.

The court issued a two-line ruling in San Francisco granting the U.S. Department of Justice’s request that the case of Sgt. Perry J. Watkins be heard by 11 members of the the 26-member court. No date for the rehearing was set.

The decision negated a Feb. 10 ruling by a three-member appellate panel that homosexuals are entitled to the same kind of legal protection from discrimination as racial and ethnic minorities.

In the earlier ruling, the panel decided 2 to 1 that it is unconstitutional for the Army to deny the enlistment or commissioning of an individual who is identified as a homosexual either by overt acts or by an admission of personal tendencies.

Justice Department lawyer Roy Hawkens said the Defense Department is pleased that the court will rehear the case.

“In the professional judgment of the military officials, they feel that the admission and retention of homosexuals in the military will seriously impair the accomplishments of the military mission,” Hawkens said.

But Thomas B. Stoddard, executive director of Lambda Legal Defense and Education Fund Inc., a national gay rights organization, said the court’s latest ruling does not reveal how the case will be decided.

“One simply cannot tell from this additional step what the ultimate disposition of this case might be,” Stoddard said. “This step is really not surprising. Ultimately, this case will have to go to the Supreme Court for resolution. “

Harvard University Professor Larry Tribe, an expert on constitutional law, said he was not surprised the court decided to rehear the case.

“I think the majority in Watkins was correct, and I hope it will ultimately be affirmed,” Tribe said. “But I do think it’s in some jeopardy, and I am not surprised they decided to hear it en banc because it’s a very controversial decision.”

The Army refused to reenlist Watkins, 39, of Tacoma, Wash., in 1982 because of his homosexuality and despite an unblemished record of 16 years of service during which he received outstanding ratings.

Watkins had said he had homosexual tendencies in a pre-induction medical questionnaire before his enlistment in August, 1967. He was not prevented from enlisting, but he was later excluded under two sets of regulations adopted in 1981.

Re-Enlistment Barred

One regulation 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.” Another regulation required the discharge of Army personnel in the same category.

In refusing to re-enlist Watkins, the Army never proved that he committed any homosexual acts while in the service.

Judge William A. Norris, who wrote the majority opinion for the three-member appellate panel, concluded that the Army had not demonstrated that permitting homosexuals to serve would necessarily cause 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,” Norris wrote.