Lambda Legal

Able v. U.S.A. (brief)

Brief arguing against the U.S.A. Military's "Don't Ask Don't Tell" Policy

This brief presents a constitutional challenge to the military's "don't ask, don't tell" policy toward homosexual members of the United States military, as instituted as part of the National Defense Authorization Act (1994).

IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

LIEUTENANT COLONEL JANE ABLE, PETTY OFFICER ROBERT HEIGLE, FIRST LIEUTENANT KENNETH OSBORN, SERGEANT STEVEN SPENCER, LIEUTENANT RICHARD von WOHLD, and SEAMAN WERNER ZEHR,

Plaintiffs-Appellees,

v.

UNITED STATES OF AMERICA, WILLIAM S. COHEN, Secretary of Defense, in his official capacity, RODNEY E. SLATER, Secretary of Transportation, in his official capacity,

Defendants-Appellants.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK

BRIEF FOR THE APPELLEES

Beatrice Dohrn
Ruth E. Harlow
Lambda Legal Defense & Education Fund
120 Wall Street, Suite 1500
New York, NY 10005-3904
212-809-8585

Matthew A. Coles
American Civil Liberties Union Foundation
125 Broad Street
New York, NY 10004-2400
(212) 549-2500

STATEMENT OF THE ISSUES 1

STATEMENT OF THE CASE 1

1. Procedural History 1
2. Statement of Facts -- The Statute and Directives at Issue 6
3. Standard of Review 9

SUMMARY OF ARGUMENT 10 ARGUMENT 10

1. Congressional Decisions About Military Matters Receive Great Deference, But Congress Has No License To Violate Core Constitutional Principles. 11
2. Because Congress Imposed Distinct Rules Of Conduct On Lesbians And Gay Men For Reasons That Are Not Legitimate, And Because Imposing Those Rules Does Not Conceivably Advance Any Legitimate Purpose, § 654(b)(1) Violates The Most Basic Equal Protection Principles. 13
   1. Because § 654(b)(1) Fails Any Level of Equal Protection Review, the Court Should Apply Rational Basis Review. 13
   2. The Rational Basis Test Requires That A Classification Serve Only Legitimate Government Interests And That It Rationally Advance The Government's Aim. 14
   3. Because § 654(b)(1) Punishes Lesbians And Gay Men Who Engage In The Common Conduct It Regulates, It Imposes A Status-based Regulation Of Conduct. 19
   4. The Acts Prohibition Has No Legitimate Purpose, Because The Military's Argument That It Advances Military Effectiveness Depends Entirely On The Discomfort And Unease Of Heterosexuals. 20
      1. The Federal Courts Should Indulge Unsubstantiated Fears Of Lesbians And Gay Men No Longer. 20
      2. Any Impact On "Unit Cohesion" Depends Wholly Upon The Disapproval And Discomfort Of Heterosexuals And Thus Is Illegitimate. 23
      3. The Act Has No Effect On Privacy Or Sexual Tension, And These Goals, As Articulated By The Government, Are Not Legitimate. 30
      4. Section 654(b)(1) Violates Equal Protection Because its Only Purpose Is to Suppress Communication. 36
   5. The Survival Of Our Country Does Not, As Congress Recognized, Depend Upon The Acts Provision 37
3. Neither The Inapposite Supreme Court Precedents Nor The Prior Rulings By Other Circuits That The Government Seeks To Rely Upon Stand In The Way Of Plaintiffs' Meritorious Equal Protection Claim. 40
   1. United States v. Salerno Has No Bearing On This Case. 40
   2. Bowers v. Hardwick Does Not Validate § 654(b)(1)'s Unequal Regulation Of Acts. 42
   3. The Legal Arguments Presented Here Have Not Adequately Been Addressed By Other Circuit Courts. 44

CONCLUSION 49

TABLE OF AUTHORITIES

Cases

Able v. United States, 88 F.3d 1280 (2d Cir. 1996) 1-3, 5, 7, 19, 36,40, 45

Able v. United States, 880 F. Supp. 968 (E.D.N.Y. 1995) 2

Able v. United States, 968 F. Supp. 850 (E.D.N.Y. 1997) 3-6, 25, 30, 32

Adams v. Laird, 420 F.2d 230 (D.C. Cir. 1969) 21, 25

Beller v. Middendorf, 632 F.2d 788 (9th Cir. 1980) 47, 48

Ben-Shalom v. Marsh, 881 F.2d 454 (7th Cir. 1989) cert. denied, 494 U.S. 1004 (1990) 46

Berk v. Laird, 429 F.2d 302 (2d Cir. 1970) 12

Bolling v. Sharpe, 347 U.S. 497 (1954) 13

Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485 (1984) 9

Bowers v. Hardwick, 478 U.S. 186 (1986) 42, 43

Brown v. Board of Education, 347 U.S. 483 (1954) 35

Brown v. Glines, 444 U.S. 348 (1980) 12

Buchanan v. Warley, 245 U.S. 60 (1917) 18

City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985) 15-19, 21, 27-29, 32, 33, 47

DaCosta v. Laird, 471 F.2d 1146 (2d Cir. 1973) 11

Dronenburg v. Zech, 741 F.2d 1388 (D.C. Cir. 1984) 47

Ex Parte Milligan, 71 U.S. 2 (1866) 11

Falk v. Secretary of the Army, 870 F.2d 941 (2d Cir. 1989) 49

Frontiero v. Richardson, 411 U.S. 677 (1973) 11

Gayer v. Schlesinger, 490 F.2d 740 (D.C. Cir. 1973) 21

Greer v. Spock, 424 U.S. 828 (1976) 12

Guisto v. Immigration and Naturalization Service, 9 F.3d 8 (2d Cir. 1993) 41

Guitterez v. Municipal Court, 838 F.2d 1031 (9th Cir. 1988), vac. as moot, 490 U.S. 1016 (1989) 15

Hatheway v. Secretary of the Army, 641 F.2d 1376 (9th Cir. 1981) cert. denied, 454 U.S. 864 (1981) 48

Heller v. Doe, 509 U.S. 312 (1993) 14, 39

High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563 (9th Cir. 1990) 23

Hopper v. Bernalillo County Assessor, 472 U.S. 612 (1985) 13

Islamic Center of Mississippi, Inc. v. City of Starkville, 840 F.2d 293 (5th Cir. 1988) 21

Janklow v. Planned Parenthood, ___ U.S. ___, 116 S. Ct. 1582 (1996) 40

Korematsu v. United States, 323 U.S. 214 (1944) 20-22

Loving v. Virginia, 388 U.S. 1 (1967) 29

Marks v. City of Chesapeake, 883 F.2d 308 (4th Cir. 1989) 14, 21

McLaughlin v. Florida, 379 U.S. 184 (1964) 13

Meinhold v. United States Department of Defense, 34 F.3d 1469 (9^th Cir. 1994) 45

Meyer v. Nebraska, 262 U.S. 390 (1923) 21

O'Conner v. Donaldson, 422 U.S. 563 (1975) 14, 23, 28, 33

Palmore v. Sidoti, 466 U.S. 429 (1982) 15-17, 20, 27-29, 32, 47

Philips v. Perry, 106 F.3d 1420 (9th Cir. 1997) 12, 32, 48

Pierce v. Society of Sisters, 268 U.S. 510 (1925) 21

Planned Parenthood of Minn. v. State of Minn. 612 F.2d 359, 362 (8 Cir. 1980) 31

Police Dept. of Chicago v. Mosley, 408 U.S. 92 (1972) 36

Porterfield v. Webb, 263 U.S. 225 (1923) 20

Rich v. Secretary of the Army, 735 F.2d 1220 (10th Cir. 1984) 48

Richenberg v. Perry, 97 F.3d 256 (8th Cir. 1996), cert. denied, 118 S. Ct. 45 (1997) 46

Romer v. Evans, 116 S. Ct. 1620 (1996) 14, 15, 18, 19, 24, 25, 28, 40, 41, 43, 44, 47

Rostker v. Goldberg, 453 U.S. 57 (1981) 11, 12, 37

Steffan v. Perry, 41 F.3d 677 (D.C. Cir. 1994) 45

Stemler v. City of Florence, 126 F.3d 856 (6 Cir. 1997) 15

Thomasson v. Perry, 80 F.3d 915 (4^th Cir. 1996) cert. denied, 117 S. Ct. 358 (1996) 46

U.S. Dept. of Agriculture v. Moreno, 413 U.S. 529 (1973) 16, 18, 20, 24, 25, 30

United States ex. rel. Toth v. Quarles, 350 U.S. 11 (1955) 12, 37

United States v. Bianco, 998 F.2d 1112 (2d Cir. 1993), cert. denied, 511 U.S. 1069 (1994) 10

United States v. Johanns, 20 M.J. 155 (C.M.A.), cert. denied, 474 U.S. 850 (1985) 31

United States v. Robel, 389 U.S. 258 (1967) 11

United States v. Salerno, 481 U.S. 739 (1987) 40-42

United States v. Smith, 812 F.2d 161 (4th Cir. 1987) 18

United States v. Virginia Military Institute, U.S. 116 S. Ct. 2264 (1996) 16, 35

United States v. Yonkers Board of Education, 837 F.2d 1181 (2d Cir. 1987) 16, 24

Uphanm v. Seamon, 456 U.S. 37 (1982) 39

Van Gemert v. Boeing Co., 590 F.2d 433 (2d Cir. 1978) 19

Vance v. Bradley, 440 U.S. 93 (1979) 19

Village of Belle Terre v. Boraas, 416 U.S. 1 (1974) 29

Watson v. Memphis, 373 U.S. 526 (1963) 18, 23, 35

Weinberger v. Wiesenfeld, 420 U.S. 636 (1975) 24

Constitution

Art. I, § 8 11

Fifth Amendment13

Statutes and Regulations

10 U.S.C. § 6541

50 U.S.C. App. § 1981 22

Article 120, 10 U.S.C. 4

Article 125, 10 U.S.C. 4

Article 134, 10 U.S.C. 4

DoD Directive 1332.14 42

Fed. R. Civ. P. 52(a)10

Legislative Materials

S. Rep. No. 103-112 (1993) 19, 26, 27, 30, 37-39

Miscellaneous

Ahlstrom, A Religious History of the American People, Yale, New Haven (1972)29

Defense Personnel Security Research and Education Center, Nonconforming Sexual Orientations and Military Suitability (December 1988) 22

Higham, Strangers In The Land: Patterns of American Nativism, Rutgers Univ. Press, New Brunswick, 2nd ed. 1988 21, 29

Louis Harris and Associates, Harris Survey February, 1971 29

Public Attitudes Toward People With Chronic Mental Illness, The Robert Wood Johnson Foundation, 1990 33

RAND Corporation, Sexual Orientation and U.S. Military Policy: Options and Assessment (1993) 22, 34, 38

Suplee, "Pentagon Ban On Homosexuals Exempts Civilians," Wash. Post, August 5, 1991. 23

The Gallup Organization, Black/White Relations
in the United States (1997) 29

Tribe, American Constitutional Law, sec. 16-2, p. 1440 (2nd ed. 1988)15

United States General Accounting Office, Report to Congressional Requesters, Defense Force Management: DoD's Policy on Homosexuality (June 1992)22, 25

STATEMENT OF THE ISSUES

1. Whether 10 U.S.C. § 654(b)(1), which provides for the discharge of service members who have "engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts," and does not likewise provide for the discharge of service members based on "heterosexual acts," violates the Constitution's equal protection guarantee.⁽¹⁾

2. Whether 10 U.S.C. § 654(b)(2), which provides for the discharge of service members who have "stated that [they are] homosexual or bisexual, or words to that effect," violates the First Amendment and equal protection. (This Court has already held that if § 654(b)(1) is unconstitutional, § 654(b)(2) must be found invalid as well. Able v. United States, 88 F.3d 1280, 1300 (2d Cir. 1996).)

STATEMENT OF THE CASE

A. Procedural History

The Court is well-versed in the preliminary stages of this case and thus appellees will not recap the pre-trial history here. See Able, 88 F.3d at 1283-88, 1291-92.

When the district court first reached the merits, it ruled that 10 U.S.C. § 654(b)(2) (hereinafter the "statements provision") violated the First Amendment and equal protection. Able v. United States, 880 F. Supp. 968, 980 (E.D.N.Y. 1995). The court concluded that "subsection (b)(2) burdens speech based solely on its content" and that such a burden was insufficiently justified, even when assessed in light of the military context. 880 F. Supp. at 976, 973-80. From the proceedings in Congress and the arguments offered by the government, the district court found that "Don't Ask, Don't Tell" embodied a "policy of requiring secrecy" about one's homosexuality because of "heterosexual animosity." 880 F. Supp. at 978.

Finding that plaintiffs lacked standing to challenge it, the court declined to rule on the constitutionality of 10 U.S.C. § 654(b)(1) (hereinafter the "acts provision"). See 880 F. Supp. at 970. On appeal, this Court overturned that determination:

Plaintiffs' equal protection challenge to § 654(b)(1) is that homosexuals are being illegally discriminated against because the military punishes sexual acts differently, depending on whether they are engaged in by same sex or opposite sex partners. Under the circumstances of this case, we believe that the standing requirement is met.

The lower court was "acutely aware of the deference owed to Congress' determinations in cases involving the military," but it also correctly noted that such decisions "are not exempted from the constitutional imperative of equal protection." 968 F. Supp. at 857. The court emphasized that, while § 654(b)(1) "applies exclusively to homosexuals," other "military law proscribes a broad range of sexual conduct without regard to the actor's sexual orientation." 968 F. Supp. at 855. These generally applicable provisions -- including Article 125 of the Uniform Code of Military Justice (making it an offense for "any person" to commit "sodomy"),⁽²⁾ Article 120 (covering rape), Article 133 ("conduct unbecoming an officer"), Article 134 (the "general article" covering "all disorders and neglects to the prejudice of good order and discipline", including inter alia indecent exposure), and Article 93 (covering sexual harassment) -- "are not drawn into question by plaintiffs. They enable the Armed Forces to deter [and to punish] . . . all sexual behavior likely to cause harm or embarrassment to someone else." 968 F. Supp. at 855-57 (emphasis added). Moreover, "the government agrees . . . that homosexuals are no more likely than heterosexuals to violate the military code of conduct or other rules[.]" 968 F. Supp. at 855.

The challenged statute, by contrast,

requires the discharge of a homosexual who has engaged in acts not otherwise punishable under the Military Code and in themselves inherently innocuous. . . . No such sanction is imposed on a heterosexual who, with the same purpose, does the same thing with someone of a different sex. See Able, 88 F.3d at 1291 ("[T]here is no doubt that the Act treats homosexuals and heterosexuals differently even though they have engaged in similar acts within a broad range[.]")

968 F. Supp. at 857. The court found this special scheme aimed at "homosexual acts" completely unnecessary except to address those acts that are, in and of themselves, innocuous and therefore not covered by general military law or rules. It found all three of the asserted justifications for this scheme depend upon and are wholly rooted in the discomfort and disapproval of others toward "members who engage in homosexual acts." 968 F. Supp. at 858; see also id. at 858-59("the only conceivable way [such members] could undermine the [general] cohesion of the unit is 'by the negative reactions of service members who disapprove'"); id. at 859-61 (the privacy argument is that "heterosexual service members feel their privacy is diminished once they are aware homosexuals are amongst them and may possibly act on their sexual orientation"; "it is the dislike of heterosexuals, and not any misconduct on the part of homosexuals, that is the government's concern for 'privacy'")(emphasis added); id. at 860-61 (the sexual tension argument is illogical and merely another acquiescence to "the animosity of heterosexuals").

The district court applied the core equal protection principle that "the subjective discomfort, prejudices, and fears of heterosexuals [are] not legitimate justification[s] for discrimination against gay men and lesbians" and held the acts provision unconstitutional. 968 F. Supp. at 860, 864-65. The court recognized that "[t]he Constitution does not grant the military special license to act on prejudices or cater to them," even in the name of advancing unit cohesion, protecting "privacy" or diminishing "sexual tension." 968 F. Supp. at 859⁽³⁾. This appeal by the government followed.⁽⁴⁾

B. Statement of Facts -- The Statute and Directives at Issue

Section 654, officially titled "[p]olicy concerning homosexuality in the armed forces," provides:

(b) Policy.-- A member of the armed forces shall be separated from the armed forces under regulations prescribed by the Secretary of Defense if one or more of the following findings is made and approved in accordance with procedures set forth in such regulations:

1. That the member has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts unless there are further findings . . . that the member has demonstrated that--
   1. such conduct is a departure from the member's usual and customary behavior;

   2. such conduct, under all of the circumstances, is unlikely to recur;

   3. such conduct was not accomplished by use of force, coercion, or intimidation;

   4. under the particular circumstances of the case, the member's continued presence in the armed forces is consistent with the interests of the armed forces in proper discipline, good order, and morale; and

   5. the member does not have a propensity or intent to engage in homosexual acts.

2. That the member has stated that he or she is a homosexual or bisexual, or words to that effect, unless there is a further finding . . . that the member has demonstrated that he or she is not a person who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts.

3. That the member has married or attempted to marry a person known to be of the same biological sex.⁽⁵⁾

10 U.S.C. § 654(b).

As noted above, "homosexual act" is defined to include:

(A) any bodily contact, actively undertaken or passively permitted, between members of the same sex for the purpose of satisfying sexual desires; and

(B) any bodily contact which a reasonable person would understand to demonstrate a propensity or intent to engage in an act described in subparagraph (A).

10 U.S.C. § 654(f)(3). Thus, the acts covered for couples of the same sex encompass all forms of clearly sexual behavior, all other "bodily contact" undertaken "for the purpose of satisfying sexual desires," and all other touching that might simply point to -- but not itself be -- bodily contact to satisfy gay or lesbian couples' sexual desires. The statute imposes a complete celibacy requirement on gay service members, as well as a requirement that even hugging, hand-holding and any other human contact that could signal same-sex sexual desire be avoided -- 24 hours a day, on or off duty, in complete privacy or otherwise -- in order to avoid discharge.

Thirteen of the fifteen findings are general statements about military needs that do not refer to any aspect of the "policy concerning homosexuality." See 10 U.S.C. § 654(a). Of the other two, finding thirteen simply states the unexplained conclusion that "[t]he prohibition against homosexual conduct is a long-standing element of military law that continues to be necessary in the unique circumstances of military service." 10 U.S.C. § 654(a)(13). Finding fifteen is also a conclusion without sufficient detail to explain the basis for, or mechanism of, its assertion: "The presence in the armed forces of persons who demonstrate a propensity or intent to engage in homosexual acts would create unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability." 10 U.S.C. § 654(a)(15).

The statute does make clear throughout that the perceived danger of a service member revealing the "propensity or intent to engage in homosexual acts" is thought, by the military and Congress, to be a greater threat than a "homosexual act" itself. Under § 654(b)(1), for example, actually engaging in a prohibited act will not lead to discharge if a member shows that it was an aberration and that he or she "does not have a propensity or intent to engage in homosexual acts."⁽⁶⁾ Section 654(b)(2) requires discharge if a statement, accompanied by no behavior whatsoever, reveals a "propensity or intent to engage in homosexual acts." And even the definition of "homosexual act" goes beyond anything sexual to behavior that is merely communicative of the feared "propensity," triggering a discharge proceeding where there is any "bodily contact which a reasonable person would understand to demonstrate a propensity or intent . . . ." 10 U.S.C. § 654(f)(3)(B).

C. Standard of Review

This Court reviews the constitutional standards that govern plaintiffs' claims and the applications of those standards to the record de novo. Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485 (1984); United States v. Bianco, 998 F.2d 1112, 1120 (2d Cir. 1993), cert. denied, 511 U.S. 1069 (1994). The district court's "[f]indings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous." Fed. R. Civ. P. 52(a).

SUMMARY OF ARGUMENT

As an irreducible minimum, equal protection demands this of the government: it must be possible to explain how a law that discriminates achieves some valid government purpose without relying on negative feelings that some may have about those who are disadvantaged by the discrimination. Here, the government insists that lesbians and gay men alone abstain from intimate relationships and affectionate conduct. It is unable to explain how that discrimination achieves the goal it says it wants to achieve--military effectiveness--without invoking the discomfort, dislike or disapproval that it believes some heterosexuals feel for lesbians and gay men. To allow the military to maintain indefinitely a statutory policy that is grounded entirely in illegitimate government interests would not be deference; it would be a complete waiver from the Constitution's core requirement that discrimination based on aversion can never be tolerated. Instead, both the acts provision and the statements provision should be struck down.

ARGUMENT

A. Congressional Decisions About Military Matters Receive Great Deference, But Congress Has No License To Violate Core Constitutional Principles.

4. In addition to the update on the plaintiffs provided by defendants, the Court should know that while protected by the District Court's injunction Plaintiff Kenneth Osborn was activated and completed a tour in Bosnia.

5. Contrary to intimations in the government's brief, see Gov. Br. at 2, 3, subsection 654(b)(3) is not at issue here. See Able, 88 F.3d at 1288 n.5.

6. As a practical matter, the "further findings" escape hatch from dismissal under the acts provision means that a heterosexual who "strays" or experiments with same-sex sexual activity can stay in the service. The congressional record reveals that it was included with that circumstance in mind. See, e.g., S. Hrg. No. 103-845 at 783 (JA 270) (testimony of DoD General Counsel Gorelick).
In the unlikely event that a gay person, in proceedings under § 654(b)(1), succeeded in making the five showings necessary to avoid discharge, he or she would clearly only get one chance to be prosecuted under the acts provision and miraculously stay in. With two "acts," it would be impossible to make showings (A) and (B). Moreover, a "homosexual" is defined by the statute as "a person, regardless of sex, who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts, and includes the terms 'gay' and 'lesbian'." 10 U.S.C. § 654(f)(1).

7. Were the issue presented, plaintiffs would maintain, as they have throughout this litigation, the classifications based on sexual orientation are entitled to heightened scrutiny.

8. In all three of these cases, the court stuck the classification in question not after fully analyzing the classification under the applicable form of review, but simply because the government's asserted basis for the discriminatory treatment was grounded in illegitimate government interests. see, e.g., Palmore, 466 U.S. at 433-434; U.S. Dept. of Agriculture v. Moreno, 413 U.S. 529, 534 (1973); and see, U.S. v. Virginia Military Institute, 116 S. Ct. at 2281.

9. Courts will not invoke purposes or make up rationales for the government in a rational basis case once there is reason to believe that the classification was drawn for an improper reason. See, e.g., Romer v. Evans,; City of Cleburne v. Cleburne Living Center, 473 U.S. at 448-449 (1985). See also Vance v. Bradley, 440 U.S. 93, 97 (1979)(it is only "absent some reason to infer antipathy" that the "Constitution presumes that...even improvident decisions will eventually be rectified by the democratic process and judicial intervention is generally unwarranted").

10. The government, when pressed to explain how "acts" in themselves pose any threat to cohesion, points to misconduct like fraternization which is forbidden to all. See, e.g., Gvt. Br. 34. To defend its special rule of imposing mandatory discharge for misconduct only on lesbians and gay men and of requiring discharge of only lesbians and gay men for private relationships, the government must have some explanation of how acts involving gay people are different. See, Romer v. Evans, 116 S. Ct. 1620, 1627 (1996)

11. Those decisions also dispose of the argument, which the government relegates to a footnote, that since heterosexuals do not want to be around non-celibate lesbians and gay men, application of uniform standards of conduct might cause some to resist recruitment. See, Gov. Br. at n.18.

12. The government also tries to distinguish Cleburne by emphasizing the court's insistence that negative attitudes could not support discrimination because they were "unsubstantiated by factors which are properly cognizable in a zoning proceeding." Gvt. Br. at 44, fn. 24. That holding, the government suggests, meant the court thought the city had not even claimed that its actions were aimed at achieving legitimate purposes. Had it invoked a legitimate purpose, as the military does here, the government suggests, its permit denial would have been upheld even though it was fear and negative attitudes which implicated the interest. But the city did rely on goals--even those specifically related to the fears and negative attitudes--which are generally legitimate. See City of Cleburne v. Cleburne Tex. 726 F.2d 191, 200 (5th Cir. 1984)(protection of serenity of neighborhood, protection of neighbors from harm, protection of mentally disabled from hostile students); see also Village of Belle Terre v. Boraas, 416 U.S. 1, 9 (1974). The City's difficulty in Cleburne, like the military's difficulty here, is that those legitimate interests were supported only by fear and dislike, not proper factors for a zoning proceeding or for any other form of government policy making. See Cleburne, 473 U.S. at 448 (relying on Palmore v. Sidoti, 466 U.S. 429).

13. As the government's counsel argued below "...Congress found ...that the military does not have to take the risk that if, for instance, a service member confined their sexual activity to off-base, off-duty, private encounters, that when that service member was called to duty on a minutes's notice to the Persian Gulf or to six months on a submarine, that that conduct might manifest itself onto (sic) on-duty, off-base conduct." Transcript of Oral Argument before Nickerson , November 18, 1996, p. 15] 14. A typographical error in the government's brief might suggest that General Powell himself used the words "abridgement of privacy" and "potential for sexual tension." He did not. See, S. Rep. No. 103-112, p. 283 (JA 706).

15. Congress and the government suggest repeatedly that because servicemembers lose control of whether and when they have privacy, it would be imposing a "special burden" to insist that those in the military must share facilities with non-celibate gay people, if it makes them uncomfortable to do so. It is no more of a "special burden" than sharing space with those of different religions, races, and political creeds. It is military life, not any lifting of the acts or statements provisions, that diminishes privacy, but clearly the military can cope and has throughout its existence coped with that lack of privacy.

16. Our cultural modesty and privacy norms, organized as they are along gender lines, mean that in non-private bathrooms and sleeping quarters heterosexuals are not accustomed to bunking and bathing with people to whom they might experience attraction, generally, based on their sex. Lesbians and gay men are.

17. See DoD Directive 1332.14 Part 1(K)(1)(a) (JA 327-28) ("[a] member may be separated for misconduct when it is determined under the guidance set forth in section A of part 2 that the member is unqualified for further military service by reason of" disciplinary infractions, a pattern of misconduct, or commission of a serious offense). The review process applicable to heterosexual misconduct is guided by the fact that "[t]here is a substantial investment in the training of persons enlisted or inducted into the Military Services"; individualized factors distinct from the incident at issue, such as the member's service record and "potential for advancement or leadership," must be considered. Id. at Part 2(A)(2)(a) & (d) (JA 332-33).