Appeals Court Considers Issue of Gays’ Suitability as Soldiers

Army lawyers on Wednesday defended regulations barring homosexuals from military service, arguing that soldiers confined together in close quarters “don’t like to be viewed . . . as objects of sexual desire.”

Seeking reconsideration of a landmark appellate court ruling that struck down the Army’s ban on gay soldiers, military lawyers said homosexuality “creates tension” among heterosexual enlistees and can be prohibited under a long tradition of laws and court decisions regulating homosexual conduct.

But lawyers for a 40-year-old former Army sergeant, who is challenging his forced discharge after 14 years of exemplary service, said the real goal of the military regulations “is to cater to private bigotry and prejudice.”

“In this case, we have a policy that says all homosexuals, we’re just not going to consider them good patriots, good fighters,” said James Lobsenz, who is representing Sgt. Perry Watkins for the American Civil Liberties Union. “There is no evidence whatsoever to support the military’s bald assertion that homosexuality affects the caliber of military performance.”

Arguments in the case were heard in an unusual en banc session of the U.S. 9th Circuit Court of Appeals convened to reconsider a ruling earlier this year that struck down the Army’s ban on homosexual soldiers.

In an opinion that could provide broad guarantees for homosexuals against government discrimination in employment, housing and custody disputes, a three-member panel of the appeals court held in February that regulations requiring the discharge of homosexual soldiers violate the Constitution’s equal protection guarantees.

The decision, the first of its kind by any federal appeals court, prompted a majority of the circuit judges in June to refer the case to an 11-member panel for rehearing to determine whether it will become the law of the largest federal appeals court in the nation.

Although any decision is likely to be appealed to the U.S. Supreme Court, the 9th Circuit’s findings are important because they represent the first appellate court analysis of whether homosexuals as a class are protected under the Constitution, apart from questions of whether they have engaged in illegal sexual conduct.

The original panel, in an opinion written by Judge William A. Norris, held that the 1981 regulations requiring automatic discharge of homosexuals regardless of the quality of their performance impermissibly distinguish homosexuals by their orientation, rather than their conduct.

For instance, soldiers can be subject to discharge simply by expressing a homosexual orientation, yet heterosexual soldiers who have actually engaged in homosexual acts are not subject to automatic discharge, the majority said.

Georgia Case Cited

In its opinion, the court majority said it was not obligated to follow a 1986 Supreme Court opinion that upheld enforcement of Georgia’s sodomy laws against homosexuals. The high court in that case, the majority said, was ruling on regulation of homosexual conduct, not orientation.

The appeals court also distinguished its equal protection analysis in the Watkins case from the Georgia case, Bowers vs. Hardwick, which it said was largely based on a finding that sodomy laws do not violate homosexuals’ right to privacy.

But one of the court’s most liberal judges, Stephen Reinhardt, dissented, saying that while he believed the Supreme Court in the Georgia decision “improperly condones official bias and prejudice against homosexuals,” the nation’s lower courts are nonetheless bound by it.

In deciding the case, the 11-member panel, about evenly divided between the court’s liberal and conservative members, could side with Watkins without reaching the sweeping conclusion that homosexuals constitute a protected class.

Possible Findings

For instance, the judges could uphold the Army regulations in substance but decide they were unfairly applied to Watkins, or that they should at least include provisions for individual hearings.

Watkins, a Tacoma, Wash., resident who has been for the most part unemployed since his preliminary discharge in 1982, told Army officials he was a homosexual when he was drafted in 1968, and the admission remained part of his personnel file until his discharge became final in 1984.

The young personnel supervisor was granted several re-enlistment contracts after a service record that included a number of commendations.

Although administrative hearings failed to produce sufficient evidence during Watkins’ service, Army lawyers in recent months have submitted evidence that Watkins had, in fact, engaged in homosexual relations with other servicemen, in one case inside military barracks.

Lobsenz on Friday again emphasized that the regulations are targeted not at conduct, but at orientation.

Personality Aspect

“There is more to being a homosexual than one act of homosexual sodomy,” he said. “Being a homosexual is an aspect of a person’s personality; it is a key aspect. They are homosexual whether they are typing a letter or baking a pie.”

But E. Roy Hawkens, representing the Army, said persons with homosexual orientation can be expected to engage in homosexual acts disruptive to the military, with its membership often cramped in close quarters with little privacy.

“Should that same regulation apply to a clerk-typist at the Pentagon?” inquired Judge Diarmuid F. O’Scannlain.

“Yes,” Hawkens replied. “That same clerk-typist has to be prepared to be issued a rifle and go to the front where there are these same confined conditions and minimal privacy.”

Watkins, who was four years short of retirement eligibility when he left the Army, said he never believed his discharge was based on the Army’s belief that he could not be a good soldier. Rather, he said, his troubles started when he first filed a court action challenging denial of a security clearance based on his homosexuality.

“It’s really a matter of getting revenge,” he said after the hearing. “If they didn’t feel that a person who is gay could be a good soldier, they would not have kept me for 16 years.”