Court Tells Army to Reinstate Gay; Skips Wider Issue

A federal appeals court Wednesday ordered the Army to reinstate a soldier who was discharged because he was a homosexual, but stopped short of declaring that military regulations against gay soldiers are unconstitutional.

The 7-4 decision from the U.S. 9th Circuit Court of Appeals, reached on the narrow issues of Sgt. Perry Watkins’ discharge in 1983, represented a step back from a sweeping ruling of a three-judge panel last year that provided broad constitutional protections for homosexuals in the military.

But the new ruling, nonetheless, held that the Army can be sued for treating homosexuals and other soldiers unfairly, a ruling that potentially holds the military accountable to the courts for a broad spectrum of military decisions that have historically been immune from judicial review.

The court majority held that it did not need to decide that Watkins’ constitutional rights had been violated before ordering him reinstated to the position he had held for more than 14 years--with the Army’s full knowledge that he was a homosexual.

“This is a case where equity cries out and demands that the Army be estopped from refusing to reenlist Watkins on the basis of his homosexuality,” Judge Harry Pregerson wrote for the majority.

“To estop the Army from denying Sgt. Watkins’ reenlistment on the basis of his homosexuality would not disrupt any important military policies or adversely affect internal military affairs,” the majority said. “It would simply require the Army to continue to do what it has done for 14 years with only positive results: reenlist a single soldier with an exceptionally outstanding military record.”

But four judges dissented, in large part questioning the majority’s exercise of judicial review over military decision-making.

“There is no doubt that the majority’s intrusion into military affairs, unjustified by important federal interests, will have a disruptive effect on military discipline,” Judge Cynthia Holcomb Hall wrote, accusing the majority of simply ordering Watkins reinstated because of a “steadfast desire” to avoid deciding the constitutional issues in the case.

Indeed, Watkins’ attorney, James Lobsenz, called the court’s failure to uphold the earlier ruling “a blessing in disguise.”

“If they had decided the case favorably to Sgt. Watkins on those grounds, the chances would be greatly increased, to a near certainty, that the case would go to the U.S. Supreme Court, and who knows what would happen there,” he said.

An Army spokesman said it was too early to say whether the reinstatement order would be appealed and declined to comment on the opinion in detail.

Lt. Col. Greg Rixon did say, however, that he knows of no other case in which the courts exercised jurisdiction over day-to-day military decision-making through the legal doctrine known as equitable estoppel.

“The military position is that homosexuality is incompatible with military service, and the courts have repeatedly upheld that policy,” Rixon said.

Gay Groups Hail Ruling

Gay rights groups throughout the country hailed the new decision, while expressing regret that it did not go as far as the court’s earlier ruling.

“This opinion is a victory, not only for Watkins, but for all gay Americans,” said Nan D. Hunter, director of the American Civil Liberties Union’s Lesbian and Gay Rights Project. “Although it did not reach the broader constitutional issues, the court’s ruling, nonetheless, exposes the flagrant irrationality of a policy which would exclude excellent soldiers like Sgt. Watkins from the Army.”

Watkins, now 40, stated on his pre-induction medical form at the time he was drafted in 1967 that he had homosexual tendencies. He again identified himself as a homosexual on several occasions throughout his Army service, and was allowed to re-enlist, despite the Army’s non-waiverable policy against re-enlisting homosexuals.

In evaluations throughout his military service, supervisors praised Watkins for doing “a fantastic job.” He was, one commanding officer said, “the best clerk I have ever known.” Watkins was recommended for discharge after the Army drafted revised regulations in 1981 mandating the discharge of all homosexuals, regardless of merit.

Sued for Benefits

He sued for reinstatement and the Army retirement benefits he claimed to have earned.

Judge William Norris, who authored the original sweeping 9th Circuit opinion issued in February, 1988, concurred with the decision to reinstate Watkins. But he continued to argue that the Army regulations violate the U.S. Constitution’s provisions guaranteeing citizens equal protection of the laws.

Though past U.S. Supreme Court decisions have held that the Constitution’s due process provisions do not prevent states from prohibiting specific homosexual conduct, such as sodomy, the high court has been silent on whether discrimination based on homosexual orientation is barred by the equal protection clause, Norris argued, joined by Judge William C. Canby.

“In any case, homosexuals do not become ‘fair game’ for discrimination simply because their sexual practices are not considered part of our mainstream traditions,” Norris wrote.

Warranted Reinstatement

But the court majority said it was not necessary to decide the constitutional question when the facts of Watkins’ case warranted a court order for reinstatement.

By law, the courts are limited in the cases in which they can interfere with governmental decision-making. Under the doctrine of equitable estoppel, a court must find that the government has engaged in affirmative misconduct, that the government’s misconduct will cause a serious injustice and that stopping the government from continuing the wrong will not cause undue harm to the public interest.

In using those criteria, the court adopted a less stringent test for judicial intervention in military affairs than has traditionally been applied--a test which has historically allowed such intervention only when constitutional rights have been violated.

Thus, the court majority neatly sidestepped the constitutional issue, but was still able to order Watkins reinstated.

Lobsenz, Watkins’ lawyer, compared the legal doctrine to promising a child dessert if he eats his carrots then, after he eats his carrots, telling him the parent has changed his mind, and he won’t get dessert after all.

“If the government tells you for years and years and years, we don’t care if you’re gay, it’s not a bar to your military career, and then you spend 15 years of your life in the military, and then they say, ‘Hey, we changed our mind, you’re gone,’ that’s not fair,” the lawyer said.

By applying the doctrine to the military, Watkins’ lawyer said, the court broadened its own jurisdiction over military affairs, at least in the 9th Circuit.

“It will make them (the military) more accountable, in that they’ll realize they’ll no longer have this sort of iron curtain where they’ll be able to say the courts won’t touch us, because they know they can’t interfere.”

Watkins, now employed with the U.S. Forest Service in Seattle, said he is confident the courts will eventually rule on the constitutional rights of gays in the military.

“There are enough people now that are finding it necessary to go to court and argue for their rights that the issue is not dead, by any means,” he said, adding that all he wants now are his Army retirement benefits.