Casebook on Sexual Orientation and the Law — Watkins v. United States Army

[See William N. Eskridge, Jr., “Gaylegal Narratives,” 46 Stanford Law Review 607 (1994), for additional information on this decision.]

Watkins v. United States Army
U.S. Court of Appeals, Ninth Circuit (en banc)
875 F.2d 699
May 3, 1989

PREGERSON, Circuit Judge:

The United States Army denied Sgt. Perry J. Watkins reenlistment solely because he is a homosexual. The Army refused to reenlist Watkins, a 14-year veteran, even though he had been completely candid about his homosexuality from the start of his Army career, even though he is in all respects an outstanding soldier, and even though the Army, with full knowledge of his homosexuality, had repeatedly permitted him to reenlist in the past. The Army did so despite its long-standing policy that homosexuality was a nonwaivable disqualification for reenlistment. The issue before the en banc court is whether the Army may deny reenlistment to Watkins solely because of his acknowledged homosexuality.

I. FACTUAL AND PROCEDURAL BACKGROUND

In August 1967, at the age of 19, Perry Watkins was drafted into the United States Army. In filling out the Army's preinduction medical form, he marked "yes" in response to a question asking whether he had homosexual tendencies. The Army nonetheless found Watkins "qualified for admission" and inducted him into its ranks.

During Watkins' initial three-year tour of military duty, he served in the United States and Korea as a chaplain's assistant, personnel specialist, and company clerk. A year after his induction, in 1968, Watkins signed an affidavit stating that he had been a homosexual from the age of 13 and that, since his enlistment, he had engaged in sodomy with two other servicemen, a crime under military law. The Army, which received this affidavit as part of a criminal investigation into Watkins' sexual conduct, dropped the investigation because of insufficient evidence.

When his first enlistment period expired in 1970, Watkins received an honorable discharge, but his reenlistment eligibility code was listed as "unknown." In 1971, Watkins requested correction of the reenlistment designation and the Army corrected the code to category 1, "eligible for reentry on active duty." Shortly thereafter, he reenlisted for a second three-year term. In 1972, Watkins was denied a security clearance because of his homosexuality, and the Army again investigated him for allegedly committing sodomy and again terminated the investigation for insufficient evidence. Following another honorable discharge in 1974, the Army accepted Watkins' application for a six-year reenlistment.

In 1975, the Army convened a board of officers to determine whether Watkins should be discharged because of his homosexual tendencies. On this occasion his commanding officer, Captain Bast, testified that Watkins was "the best clerk I have known," that he did "a fantastic job -- excellent," and that Watkins' homosexuality did not affect the company. A sergeant testified that Watkins' homosexuality was well-known but caused no problems and generated no complaints from other soldiers. The four officers on the board unanimously found that "Watkins is suitable for retention in the military service" and stated, "In view of the findings, the Board recommends that SP5 Perry J. Watkins be retained in the military service because there is no evidence suggesting that his behavior has had either a degrading effect upon unit performance, morale or discipline, or upon his own job performance. SP5 Watkins is suited for duty in administrative positions and progression through Specialist rating." The board's recommendation became the final decision of the Secretary of the Army.

In November 1977, the United States Army Artillery Group (the USAAG) granted Watkins a security clearance for information classified as "Secret." His application for a position in the Nuclear Surety Personnel Reliability Program (the PRP), however, was initially rejected because his records -- specifically, his own admissions -- showed that he had homosexual tendencies. After this initial rejection, Watkins' commanding officer in the USAAG, Captain Pastain, requested that Watkins be requalified for the position. Captain Pastain stated, "From daily personal contacts I can attest to the outstanding professional attitude, integrity, and suitability for assignment within the PRP, of SP5 Watkins. In the 6 months he has been assigned to this unit SP5 Watkins has had no problems what-so-ever in dealing with other assigned members. He has, in fact, become one of our most respected and trusted soldiers, both by his superiors and his subordinates." An examining Army physician concluded that Watkins' homosexuality appeared to cause no problem in his work, and the decision to deny Watkins a position in the Nuclear Surety Personnel Reliability Program was reversed.

Watkins worked under a security clearance without incident until he again stated, in an interview on March 15, 1979, that he was homosexual. This prompted yet another Army investigation which, in July 1980, culminated in the revocation of Watkins' security clearance. As the notification of revocation makes clear, the Army based this revocation on Watkins' 1979 admission of homosexuality, on medical records containing Watkins' 1968 affidavit stating that he had engaged in homosexual conduct, and on his history of performing (with the permission of his commanding officer) as a female impersonator in various revues. The Army did not rely on any evidence of homosexual conduct other than Watkins' 1968 affidavit. In October 1979, the Army accepted Watkins' application for another three-year reenlistment.

In 1981 the Army promulgated a regulation that mandated the discharge of all homosexuals regardless of merit. Pursuant to this new discharge regulation, another Army board convened to consider discharging Watkins. Although this board explicitly rejected the evidence before it that Watkins had engaged in homosexual conduct after 1968, the board recommended that Watkins be separated from the service "because he has stated that he is a homosexual." Major General Elton, the discharge authority overseeing the board, approved this finding and recommendation and directed that Watkins be discharged.

In May 1982, after the Army board voted in favor of Watkins' discharge, but before the discharge actually issued, District Judge Rothstein enjoined the Army from discharging Watkins on the basis of his statements admitting his homosexuality. The district court reasoned that the discharge proceedings were barred by the Army's regulation against double jeopardy because they essentially repeated the discharge proceedings of 1975.

During oral argument before the district court, counsel for the Army declared that if the Army were enjoined from discharging Watkins, it would deny Watkins reenlistment when his current tour of duty expired in October 1982. This reenlistment regulation, which was promulgated in 1981 along with the discharge regulation, is simply a clarification of the earlier regulation which had always made homosexuality a nonwaivable disqualification for reenlistment. The district court nonetheless enjoined Watkins' discharge, and the Army fulfilled its promise by rejecting Watkins' reenlistment application "because of self admitted homosexuality as well as homosexual acts."

On October 5, 1982, the district court enjoined the Army from refusing to reenlist Watkins because of his admitted homosexuality, holding that the Army was equitably estopped from relying on the nonwaivable disqualification provisions of its new regulation. The Army reenlisted Watkins for a six-year term on November 1, 1982, with the proviso that the reenlistment would be voided if the district court's injunction were not upheld on appeal.

While the Army's appeal of the district court injunction was pending, the Army rated Watkins' performance and professionalism. He received 85 out of 85 possible points. His ratings included perfect scores for "Earns respect," "Integrity," "Loyalty," "Moral Courage," "Self-discipline," "Military Appearance," "Demonstrates Initiative," "Performs under pressure," "Attains results," "Displays sound judgment," "Communicates effectively," "Develops subordinates," "Demonstrates technical skills," and "Physical fitness." His military evaluators unanimously recommended that he be promoted ahead of his peers. The Army's written evaluation of Watkins' performance and potential stated:

SSG Watkins is without exception, one of the finest Personnel Action Center Supervisors I have encountered. Through his diligent efforts, the Battalion Personnel Action Center achieved a near perfect processing rate for SIPDERS transactions. During this training period, SSG Watkins has been totally reliable and a wealth of knowledge. He requires no supervision, and with his "can do" attitude, always exceeds the requirements and demands placed upon him. I would gladly welcome another opportunity to serve with him, and firmly believe that he will be an asset to any unit to which he is assigned.

SSG Watkins should be selected to attend ANCOC and placed in a Platoon Sergeant position. [Rater's Evaluation of Watkins' performance and potential.]

SSG Watkins' duty performance has been outstanding in every regard. His section continues to set the standard within the Brigade for submission of accurate, timely personnel and financial transactions. Keeping abreast of everchanging personnel regulations and directives, SSG Watkins has provided sound advice to the commander as well as to the soldiers within the command. His suggestion to separate S-1 and Personnel Action Center functions and to colocate the Personnel Action Center with the Company Orderly Rooms was adopted and immediately resulted in improved service by both offices. SSG Watkins' positive influence has been felt throughout the Battalion and will be sorely missed.

SSG Watkins' potential is unlimited. He has consistently demonstrated the capacity to manage numerous complex responsibilities concurrently. He is qualified for promotion now and should be selected for attendance at ANCOES at the earliest opportunity. [Indorser's Evaluation of Watkins' performance and potential.]

On appeal, a panel of this court reversed the district court's injunction. Watkins v. United States Army, 721 F.2d 687, 691 (9th Cir. 1983) [hereinafter Watkins I]. The panel reasoned that the equity powers of the federal courts could not be exercised to order military officials to violate their own regulations absent a determination that the regulations were repugnant to the Constitution or to the military's statutory authority. On remand, the district court held that the Army's regulations were not repugnant to the Constitution or to statutory authority and accordingly denied Watkins' motion for summary judgment and granted summary judgment in favor of the Army. Watkins again appealed and a divided panel of this court reversed the district court's ruling. The panel held that the Army's reenlistment regulations violate the constitutional guarantee of equal protection of the laws because they discriminate against persons of homosexual orientation and because the regulations are not necessary to promote a legitimate compelling governmental interest. Watkins v. United States Army, 847 F.2d 1329, 1352-53 (9th Cir. 1988) [hereinafter Watkins II]. The full court granted review to address the issues raised in Watkins I and Watkins II. We hold that the Army is estopped from barring Watkins' reenlistment on the basis of his homosexuality. Accordingly, Watkins I no longer states the law of this circuit. Moreover, it is unnecessary to reach the constitutional issues raised in Watkins II.

III. EQUITABLE ESTOPPEL

B. Equitable Estoppel Against the Government

The Supreme Court has expressly left open the issue whether estoppel may run against the government, refusing to hold "that there are no cases in which the public interest in ensuring that the Government can enforce the law free from estoppel might be outweighed by the countervailing interest of citizens in some minimum standard of decency, honor, and reliability in their dealings with their Government." Heckler v. Community Health Services of Crawford County, Inc., 467 U.S. 51, 60-61 (1984). It is well settled, however, that the government may not be estopped on the same terms as a private litigant.

Our court has held that "'where justice and fair play require it,' estoppel will be applied against the government. . . ." Johnson v. Williford, 682 F.2d 868, 871 (9th Cir. 1982) (quoting United States v. Lazy FC Ranch, 481 F.2d 985, 988-89 (9th Cir. 1973)). Our cases indicate that the principles allowing estoppel against the government also apply to the military when justified by the facts. See, e.g., Helm v. State of California, 722 F.2d 507 (9th Cir. 1983); Jablon v. United States, 657 F.2d 1064 (9th Cir. 1981); Lavin v. Marsh, 644 F.2d 1378 (9th Cir. 1981). Before the government will be estopped, however, two additional elements must be satisfied beyond those required for traditional estoppel. First, "[a] party seeking to raise estoppel against the government must establish 'affirmative misconduct going beyond mere negligence'; even then, 'estoppel will only apply where the government's wrongful act will cause a serious injustice, and the public's interest will not suffer undue damage by imposition of the liability.'" Wagner v. Director, Federal Emergency Management Agency, 847 F.2d 515, 519 (9th Cir. 1988) (quoting Morgan v. Heckler, 779 F.2d 544, 545 (9th Cir. 1985)). In the instant case, we must first determine whether the two threshold requirements for estopping the government are satisfied before deciding whether the traditional elements of estoppel are present.

1. Affirmative Misconduct

There is no single test for detecting the presence of affirmative misconduct; each case must be decided on its own particular facts and circumstances. Lavin v. Marsh, supra. Affirmative misconduct does require an affirmative misrepresentation or affirmative concealment of a material fact by the government, United States v. Ruby Co., 588 F.2d 697, 703-04 (9th Cir. 1978), although it does not require that the government intend to mislead a party. Jablon v. United States, supra. Finally, it is well settled that the government is not bound by the unauthorized acts of its agents. Saulque v. United States, 663 F.2d 968 (9th Cir. 1981) (citing Utah Power & Light Co. v. United States, 243 U.S. 389, 409 (1917)); see also Federal Crop Insurance Co. v. Merrill, 332 U.S. 380 (1947).

Here, the Army affirmatively misrepresented in its official records throughout Watkins' fourteen-year military career that he was qualified for reenlistment. On the one occasion when the record was unclear, Watkins sought clarification and his classification was immediately changed from "unknown" to "eligible for reentry on active duty." During this entire fourteen-year period, the Army's policy was that homosexuality constituted a nonwaivable disqualification for reenlistment. The Army has acknowledged, both in its brief in Watkins II and at oral argument before the en banc panel, that "the 1981 regulations now in effect, which expressly bar enlistment or reenlistment of homosexuals, are regarded as a clarification, and not a change, of Army policy." Thus, the Army affirmatively acted in violation of its own regulations when it repeatedly represented that Watkins was eligible to reenlist, as well as when it reenlisted him time after time.

This case is readily distinguishable from Lavin v. Marsh, 644 F.2d 1378 (9th Cir. 1981), where we refused to estop the Army from denying an Army Reserve officer's entitlement to pension benefits. In Lavin, the court found that while the Army had failed to determine Lavin's pension eligibility status or to counteract any misunderstanding resulting from recruiters' representations that benefits would be available to Lavin, this conduct did not amount to a "pervasive pattern of false promises" for which the government could be estopped. The court reasoned that although the Army's conduct was perhaps negligent, the "mere failure to inform or assist does not justify application of equitable estoppel" (citing INS v. Hibi, 414 U.S. 5, 8-9 (1973)). In addition, we stated that persons dealing with the government assume the risk that government agents may exceed their authority and provide misinformation, and observed that "Lavin chose trust over caution and he never attempted to confirm his eligibility."

In the present case, the Army's conduct went far beyond a mere failure to inform or assist. As the district court noted, the Army did not stand aside while Watkins reenlisted or accepted a promotion; it plainly acted affirmatively in admitting, reclassifying, reenlisting, retaining, and promoting Watkins. Furthermore, this case does not merely involve misinformation provided by government agents. Rather, it involves ongoing active misrepresentations by Army officials acting well within their scope of authority. "Without Army approval [Watkins] would not have been able to enter, remain or progress in the Army. The defendants point out that reenlistment is exclusively the Secretary's function, Here he exercised his authority three times. . . . To satisfy the element of affirmative misconduct the court need look no further."

2. Weighing the Injustice to Watkins

against the Possibility of Damage

to the Public Interest

Even when affirmative misconduct has been shown, the government cannot be estopped unless its acts also threaten to work a serious injustice and the public's interest will not be unduly damaged by the imposition of estoppel. Johnson, supra. This requirement involves a balancing of interests in individual cases. See “Note, Equitable Estoppel of the Government,” 79 Colum.L.Rev. 551, 551 (1979); see also, e.g., Johnson, supra (where a prisoner was erroneously paroled, his subsequent successful reintegration into the community showed that his continuation on parole release did not seriously threaten the public interest. Furthermore, the frustration of the prisoner's expectation to continue, during good behavior, on parole release would be a serious injustice); Gestuvo v. District Director of INS, 337 F. Supp. 1093, 1102 (C.D.Cal. 1971) (estopping INS from refusing to revalidate approval of an immigrant's third preference classification partly because "any disruption of the nation's immigration policies that might result from the admission of this single individual into the country would, in short, be miniscule in comparison to the hardship to which he would be subjected by a failure to estop the Service").

The record in the instant case shows that Sgt. Watkins has greatly benefitted the Army, and therefore the country, by his military service. Even the Army's most recent written evaluation of Watkins, completed during the course of this legal action, contains nothing but the highest praise, describing Watkins' duty performance as "outstanding in every regard" and his potential as "unlimited." In addition, Watkin's homosexuality clearly has not hurt the Army in any way. In the words of an Army review board, "there is no evidence suggesting that [Watkins'] behavior has had either a degrading effect upon unit performance, morale or discipline, or upon his own job performance." As the district court aptly concluded:

The injury to plaintiff from having relied on the Army's approval of his military career -- and being denied it now -- is the loss of his career. The harm to the public interest if reenlistment is not prevented is nonexistent. Plaintiff has demonstrated that he is an excellent soldier. His contribution to this Nation's security is of obvious benefit to the public. Furthermore, when the government deals "carefully, honestly and fairly with its citizens," the public interest is likewise benefitted.

C. Traditional Elements of Estoppel

Having concluded that this is a case in which estoppel may be asserted against the government, we must now decide whether the traditional elements of estoppel are present. Traditional estoppel requires the following:

(1) The party to be estopped must know the facts; (2) he must intend that his conduct shall be acted on or must so act that the party asserting the estoppel has a right to believe it is so intended; (3) the latter must be ignorant of the true facts; and (4) he must rely on the former's conduct to his injury. United States v. Wharton, 514 F.2d 406, 412 (9th Cir. 1975) (quoting United States v. Georgia-Pacific Corp., 421 F.2d 92, 96 (9th Cir. 1970)).

We adopt District Judge Rothstein's thorough analysis of this question as follows.

1. Did the Army know the facts?

The district court recited the following as evidence that the Army knew about Watkins' homosexuality throughout his entire military career.

At his preinduction physical examination in August 1967 plaintiff checked the box on his medical history chart indicating that he had homosexual tendencies. The examining psychiatrist apparently did not believe plaintiff and designated plaintiff as qualified for admission. In November 1968 plaintiff admitted his homosexuality to an Army Criminal Investigation Division agent. Plaintiff was honorably discharged in May 1970 and his reenlistment code was listed as "unknown." Plaintiff requested correction of that code. The Army reclassified plaintiff as eligible for reentry on active duty, and in June 1971 plaintiff reenlisted for three years. In January 1972 plaintiff was denied a security clearance based on his 1968 admission of homosexuality. After another honorable discharge, in March 1974 plaintiff reenlisted for a six year term. In 1975 plaintiff's commander initiated discharge proceedings against plaintiff for unsuitability due to homosexuality. A four member board composed of a Major, two Captains and a First Lieutenant heard testimony establishing that plaintiff was homosexual. Plaintiff's commander, Captain Albert J. Bast III testified that plaintiff, who had told Bast he was homosexual, was "the best clerk I have known." First Sergeant Owen Johnson testified that everyone in the company knew plaintiff was homosexual and that plaintiff's homosexuality had not caused any problems. As noted earlier, the board recommended retention. In November 1977 plaintiff was granted a security clearance for information classified as "Secret." Plaintiff then applied for a position in the Nuclear Surety Personnel Reliability Program. Plaintiff was initially rejected because his medical records reflected his homosexuality. Plaintiff appealed. His commanding officer, Captain Dale E. [Pastain], wrote in support of plaintiff's appeal, requesting that plaintiff be requalified notwithstanding plaintiff's record. An examining physician concluded that plaintiff's homosexuality caused no problems in his work. The Army requalified plaintiff for admission into the Program in July 1978. In October 1979 plaintiff reenlisted for three years.

Based on these undisputed facts, the district court stated that the Army's position that Army personnel responsible for Watkins' enlistment and reenlistments did not know that he was homosexual was "patently absurd." "For the Army to acknowledge that it is aware of plaintiff's homosexuality when it comes to conducting criminal investigations, holding discharge proceedings, and revoking security clearances, but maintain that it is ignorant when four enlistments are at issue, suggests bad faith." The district court concluded that the Deputy Chief of Staff for Personnel, who is primarily responsible for Army reenlistment, cannot be deemed to be unaware of the contents of Watkins' personnel file.

2. Did the Army Intend that Watkins Act

in Reliance on its Conduct, or Did the

Army Act so that Watkins Had a Right

to Believe the Army so Intended?

The district court found that this element of estoppel was satisfied because, regardless of what the Army actually intended, Watkins had a right to believe the Army intended him to rely on its acts. The district court rejected the Army's contention that Watkins had assumed the risk that his Army career would be discontinued at any time because of his homosexuality. In light of Watkins' candor from the beginning about his homosexuality and the Army's ongoing acts in violation of its regulations, the district court found that "taken together, over a career spanning more than 14 years, those acts amounted almost to a policy of ignoring this servicemember's homosexuality. As a matter of law, the court concludes that the second element of plaintiff's estoppel claim has been satisfied." See also Johnson, supra (prisoner had right to believe, after his parole computation erroneously had passed successfully through eight administrative reviews, culminating in his ultimate release on parole for fifteen months, that he would remain on parole during good behavior).

3. Was Watkins Ignorant

of the True Facts?

The district court stated that the "true fact" here is that homosexuality is a nonwaivable disqualification for reenlistment to which the Army cannot grant exceptions. The Army's repeated waiver of this disqualification makes it impossible for us to charge Watkins with the knowledge that the disqualification was in fact nonwaivable. See Johnson, supra (government's active misadvice to prisoner regarding his eligibility for parole prevented court from charging prisoner with even constructive knowledge of proper meaning of statute in question).

4. Did Watkins Rely to his Injury on

the Army's Conduct Concerning

his Homosexuality?

Regarding this fourth element, the district court stated:

Tied up in litigation, less than six years from retirement, having invested a total of more than 14 years in the Army, it is not difficult to see that plaintiff has relied to his injury on the many "green lights" he received from Army representatives. Plaintiff developed skills necessary for military employment and refrained from developing skills suitable for civilian jobs. He worked more than 14 years toward a retirement benefit that he could have sought elsewhere. Had the Army refused plaintiff reenlistment in the past, plaintiff would not have lost the opportunity for civilian employment that would have brought him to a point of equivalent achievement.

We agree with District Judge Rothstein that the four elements of traditional estoppel are present in this case.

IV. CONCLUSION

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. We therefore reinstate the district court's October 5, 1982 Order estopping the Army from relying on its reenlistment regulation as a bar to Sgt. Watkins' reenlistment.

Our opinions in Watkins I and Watkins II are withdrawn. The district court Order of June 17, 1985, is vacated and the district court Order of October 5, 1982, is AFFIRMED.

NORRIS, Circuit Judge, concurring in the judgment:

I concur in the judgment requiring the Army to reconsider Sgt. Watkins' reenlistment application without regard to his homosexuality. I cannot join the majority's opinion, however, because I agree with the dissent that the judgment cannot rest on the doctrine of equitable estoppel. The Supreme Court has declined to approve the invocation of equitable estoppel against the government even in cases where the facts are no less sympathetic than the facts in Sgt. Watkins' case. See, e.g., INS v. Miranda, 459 U.S. 14, 17-19 (1982) (per curiam) (reversing Ninth Circuit decision equitably estopping INS from denying resident status to alien spouse of citizen when petitioner became ineligible during INS delay in processing application); INS v. Hibi, 414 U.S. 5 (1973) (per curiam) (reversing Ninth Circuit decision equitably estopping INS from denying citizenship to Filipino war veteran); Montana v. Kennedy, 366 U.S. 308, 314-15 (1961) (government not estopped to deny citizenship to child of U.S. citizen born while his mother was living abroad, even though government official advised her that she could not return to the U.S. to have her baby). Indeed, the Supreme Court has expressed uncertainty as to whether equitable estoppel can ever be invoked against the government. See Heckler v. Community Health Servs., 467 U.S. 51, 60-61 (1984). In any event, I see no justification for invoking the doctrine on the facts of this case.

In my view, Watkins is entitled to relief because the Army denied him the equal protection of the laws by discharging and refusing to reenlist him solely on the basis of his homosexuality.

I now turn to Watkins' claim that the Army's regulations deny him equal protection of the laws in violation of the Fifth Amendment. Watkins argues that the Army's regulations constitute an invidious discrimination based on sexual orientation. To evaluate this claim I must engage in a three-stage inquiry. First, I must decide whether the regulations in fact discriminate on the basis of sexual orientation. Second, I must decide which level of judicial scrutiny applies by asking whether discrimination based on sexual orientation burdens a suspect or quasi-suspect class, which would make it subject, respectively, to strict or intermediate scrutiny. See City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439-41 (1985). If the discrimination burdens no such class, it is subject to ordinary rationality review. Finally, I must decide whether the challenged regulations survive the applicable level of scrutiny by deciding whether, under strict scrutiny, the legal classification is necessary to serve a compelling governmental interest; whether, under intermediate scrutiny, the classification is substantially related to an important governmental interest; or whether, under rationality review, the classification is rationally related to a legitimate governmental interest.

I turn first to the threshold question raised by Watkins' equal protection claim: Do the Army's regulations discriminate on the basis of sexual orientation? The portion of the Army's reenlistment regulation that bars homosexuals from reenlisting states in full:

Applicants to whom the disqualifications below apply are ineligible for RA [Regular Army] reenlistment at any time and requests for waiver or exception to policy will not be submitted. . . .

c. Persons of questionable moral character and a history of antisocial behavior, sexual perversion or homosexuality. A person who has committed homosexual acts or is an admitted homosexual but as to whom there is no evidence that they have engaged in homosexual acts either before or during military services is included. (See note 1). . . .

k. Persons being discharged under AR 635-200 for homosexuality. . . .

Note: Homosexual acts consist of bodily contact between persons of the same sex, actively undertaken or passively permitted, with the intent of obtaining or giving sexual satisfaction, or any proposal, solicitation, or attempt to perform such an act. Persons who have been involved in homosexual acts in an apparently isolated episode, stemming solely from immaturity, curiousity [sic], or intoxication, and in the absence of other evidence that the person is a homosexual, normally will not be excluded from reenlistment. A homosexual is a person, regardless of sex, who desires bodily contact between persons of the same sex, actively undertaken or passively permitted, with the intent to obtain or give sexual gratification. Any official, private, or public profession of homosexuality, may be considered in determining whether a person is an admitted homosexual.

Although worded in somewhat greater detail, the Army's regulation mandating the separation of homosexual soldiers from service (discharge), AR 635-200, is essentially the same in substance.

On their face, these regulations discriminate against homosexuals on the basis of their sexual orientation. Under the regulations any homosexual act or statement of homosexuality gives rise to a presumption of homosexual orientation, and anyone who fails to rebut that presumption is conclusively barred from Army service. In other words, the regulations target homosexual orientation itself. The homosexual acts and statements are merely relevant, and rebuttable, indicators of that orientation.

In spite of these facial appearances, the Army argues that its regulations target homosexual conduct rather than orientation. I cannot agree. A close reading of the complex regulations leaves no room for doubt that the regulations target orientation rather than conduct.

Under the Army's regulations, "homosexuality," not sexual conduct, is clearly the operative trait for disqualification. For example, the regulations ban homosexuals who have done nothing more than acknowledge their homosexual orientation even in the absence of evidence that the persons ever engaged in any form of sexual conduct. The reenlistment regulation disqualifies any "admitted homosexual" -- a status that can be proved by "any official, private, or public profession of homosexuality" even if "there is no evidence that they have engaged in homosexual acts either before or during military service." Since the regulations define a "homosexual" as "a person, regardless of sex, who desires bodily contact between persons of the same sex, actively undertaken or passively permitted, with the intent to obtain or give sexual gratification," a person can be deemed homosexual under the regulations without ever engaging in a homosexual act (emphasis added). Thus, no matter what statements a person has made, and what conduct he or she has engaged in, the ultimate evidentiary issue is whether he or she has a homosexual orientation. Under the reenlistment regulation, persons are disqualified from reenlisting only if, based on any "profession of homosexuality" they have made, they are found to have a homosexual orientation. Similarly, under the discharge regulation a soldier must be discharged if "the soldier has stated that he or she is a homosexual or bisexual, unless there is a further finding that the soldier is not a homosexual or bisexual" (emphasis added). In short, the regulations do not penalize all statements of sexual desire, or even only statements of homosexual desire; they penalize only homosexuals who declare their homosexual orientation.

True, a "person who has committed homosexual acts" is also presumptively "included" under the reenlistment regulation as a person excludable for " homosexuality." But it is clear that this provision is merely designed to round out the possible evidentiary grounds for inferring a homosexual orientation. The regulations define "homosexual acts" to encompass any "bodily contact between persons of the same sex, actively undertaken or passively permitted, with the intent of obtaining or giving sexual satisfaction, or any proposal, solicitation, or attempt to perform such an act.". Thus, the regulations barring homosexuals from the Army cover any form of bodily contact between persons of the same sex that gives sexual satisfaction -- from oral and anal intercourse to holding hands, kissing, caressing and any number of other sexual acts. Indeed, in this case the Army tried to prove at Watkins' discharge proceedings that he had committed a homosexual act described as squeezing the knee of a male soldier, but failed to prove it was Watkins who did the alleged knee-squeezing. Moreover, even non-sexual conduct can trigger a presumption of homosexuality: The regulations provide for the discharge of soldiers who have "married or attempted to marry a person known to be of the same sex . . . unless there are further findings that the soldier is not a homosexual or bisexual" (emphasis added). With all the acts and statements that can serve as presumptive evidence of homosexuality under the regulations, it is hard to think of any grounds for inferring homosexual orientation that are not included. The fact remains, however, that homosexual orientation, not homosexual conduct, is plainly the object of the Army's regulations.

Moreover, under the regulations a person is not automatically disqualified from Army service just because he or she committed a homosexual act. Persons may still qualify for the Army despite their homosexual conduct if they prove to the satisfaction of Army officials that their orientation is heterosexual rather than homosexual. To illustrate, the discharge regulation provides that a soldier who engages in homosexual acts can escape discharge if he can show that the conduct was "a departure from the soldier's usual and customary behavior" that "is unlikely to recur because it is shown, for example, that the act occurred because of immaturity, intoxication, coercion, or a desire to avoid military service" and that the "soldier does not desire to engage in or intend to engage in homosexual acts." The regulation expressly states, "The intent of this policy is to permit retention only of nonhomosexual soldiers who, because of extenuating circumstances engaged in, attempted to engage in, or solicited a homosexual act" (emphasis in original). Similarly, the Army's ban on reenlisting persons who have committed homosexual acts does not apply to "persons who have been involved in homosexual acts in an apparently isolated episode, stemming solely from immaturity, curiousity [sic], or intoxication, and in the absence of other evidence that the person is a homosexual." If a straight soldier and a gay soldier of the same sex engage in homosexual acts because they are drunk, immature or curious, the straight soldier may remain in the Army while the gay soldier is automatically terminated. In short, the regulations do not penalize soldiers for engaging in homosexual acts; they penalize soldiers who have engaged in homosexual acts only when the Army decides that those soldiers are actually gay.

In sum, the discrimination against homosexual orientation under these regulations is about as complete as one could imagine. The regulations make any act or statement that might conceivably indicate a homosexual orientation evidence of homosexuality; that evidence is in turn weighed against any evidence of a heterosexual orientation. It is thus clear in answer to my threshold equal protection inquiry that the regulations directly burden the class consisting of persons of homosexual orientation.

III

Before reaching the question of the level of scrutiny applicable to discrimination based on sexual orientation and the question whether the Army's regulations survive the applicable level of scrutiny, I first address the Army's argument that Bowers v. Hardwick, 478 U.S. 186 (1986), forecloses Watkins' equal protection claim. In Hardwick, the Court rejected a claim by a homosexual that a Georgia statute criminalizing sodomy deprived him of his liberty without due process of law in violation of the Fourteenth Amendment. More specifically, the Court held that the constitutionally protected right to privacy -- recognized in cases such as Griswold v. Connecticut, 381 U.S. 479 (1965) and Eisenstadt v. Baird, 405 U.S. 438 (1972) -- does not extend to acts of consensual homosexual sodomy. The Court's holding was limited to this due process question. 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.

The Army nonetheless argues that it would be "incongruous" to hold that its regulations deprive gays of equal protection of the laws when Hardwick holds that there is no constitutionally protected privacy right to engage in homosexual sodomy. I could not disagree more. First, while Hardwick does indeed hold that the due process clause provides no substantive privacy protection for acts of private homosexual sodomy, nothing in Hardwick suggests that the state may penalize gays merely for their sexual orientation. Cf. Robinson v. California, 370 U.S. 660 (1962) (holding that state violated due process by criminalizing the status of narcotics addiction, even though the state could criminalize the use of the narcotics -- conduct in which narcotics addicts by definition are prone to engage). In other words, the class of persons involved in Hardwick -- those who engage in homosexual sodomy -- is not congruous with the class of persons targeted by the Army's regulations -- those with a homosexual orientation. Hardwick was a "conduct" case; Watkins' is an "orientation" case.

Second, and more importantly, Hardwick does not foreclose Watkins' claim because Hardwick was a due process, not an equal protection case. Although the Army acknowledges, as it must, that Hardwick does not discuss equal protection explicitly, the Army nonetheless argues that Hardwick's discussion of due process has equal protection implications. Specifically, the Army argues that the Hardwick Court, in holding that the criminalization of homosexual sodomy does not violate due process, decided sub silentio that the criminalization of heterosexual sodomy would violate due process. The Army concludes from this that Hardwick is controlling precedent that the government may discriminate against homosexuals without violating equal protection.

Both the premise and the conclusion of the Army's argument are mistaken. In the first place, Hardwick did not decide sub silentio that heterosexual sodomy is constitutionally protected. Indeed, the Court expressly refused to take a position on whether heterosexual sodomy was protected by the due process clause. Second, even if we accept, arguendo, the Army's premise that the Hardwick Court drew a distinction between homosexual sodomy and heterosexual sodomy for due process purposes, such a distinction under the due process clause would have no bearing on whether the equal protection clause nonetheless prohibits official discrimination against homosexuals. I discuss these points in turn.

Implicit in the Army's position is the proposition that the Court in Hardwick somehow did decide that the due process clause prohibits a state from criminalizing heterosexual sodomy. That is, the Army reads Justice White's opinion in Hardwick as extending the zone of privacy first recognized in Griswold to heterosexual sodomy, thus drawing a due process line between heterosexual and homosexual sodomy. That reading of Hardwick flies directly in the face of footnote 2, which expressly reserves the question of the constitutionality of the Georgia statute as applied to heterosexual sodomy.

Even apart from the Court's express reservation of this question, the Army's reading of Hardwick is untenable. I see no basis for reading Hardwick as holding sub silentio that a right to engage in heterosexual sodomy is "deeply rooted in this Nation's history and tradition" or "implicit in the concept of ordered liberty" -- which would be necessary for heterosexual sodomy to qualify for due process protection under Hardwick's analysis. Note that when the Court found the suggestion that homosexual sodomy qualified for due process protection to be "at best, facetious," it relied upon the historical fact that sodomy was a criminal offense at common law, under the laws of all 13 colonies, and, until 1961, under the laws of all 50 states. Note further that the Court did not find it significant that these laws, as Justice Stevens pointed out in his dissent, drew no distinction between homosexual and heterosexual sodomy. They outlawed all acts of sodomy, both homosexual and heterosexual.

In light of the historical record relied upon by the Court, there is no way to read Hardwick as establishing that heterosexual sodomy is "deeply rooted in this Nation's history and tradition" while homosexual sodomy is not. I find it untenable, then, to interpret Hardwick as extending due process protection to heterosexual conduct while denying such protection to homosexual conduct. It is hard to imagine that the Court in Hardwick intended to suggest that acts of heterosexual sodomy implicate higher constitutional values than acts of homosexual sodomy.

Even if, as the Army implicitly argues, Hardwick did in fact extend constitutional protection to heterosexual sodomy while denying it to homosexual sodomy, such a differentiation between heterosexual and homosexual sodomy for due process purposes would have no bearing -- none -- on the entirely separate question whether official discrimination against homosexuals violates the equal protection clause. The relevant inquiry in equal protection jurisprudence is fundamentally different from the relevant due process inquiry. The due process clause, as the Court recognized in Hardwick, protects practices which are "deeply rooted in this Nation's history and tradition." The equal protection clause, in contrast, protects minorities from discriminatory treatment at the hands of the majority. Its purpose is not to protect traditional values and practices, but to call into question such values and practices when they operate to burden disadvantaged minorities. As Professor Sunstein puts it:

From its inception, the Due Process Clause has been interpreted largely (though not exclusively) to protect traditional practices against short-run departures. The clause has therefore been associated with a particular conception of judicial review, one that sees the courts as safeguards against novel developments brought about by temporary majorities who are insufficiently sensitive to the claims of history.

The Equal Protection Clause, by contrast, has been understood as an attempt to protect disadvantaged groups from discriminatory practices, however deeply engrained and long-standing. The Due Process Clause often looks backward; it is highly relevant to the Due Process issue whether an existing or time-honored convention, described at the appropriate level of generality, is violated by the practice under attack. By contrast, the Equal Protection Clause looks forward, serving to invalidate practices that were widespread at the time of its ratification and that were expected to endure. The two clauses therefore operate along different tracks. Sunstein, “Sexual Orientation and the Constitution: A Note on the Relationship Between Due Process and Equal Protection,” 55 U.Chi.L.Rev. 1161, 1163 (1988).

The Supreme Court did not decide in Hardwick -- and indeed has never decided in any case -- whether discrimination against homosexuals violates equal protection. All Hardwick decided is that homosexual sodomy is not a practice so "deeply rooted in this Nation's history and tradition" that it falls within the zone of personal privacy protected by the due process clause. It is perfectly consistent to say that homosexual sodomy is not a practice so deeply rooted in our traditions as to merit due process protection, and at the same time to say, for example, that because homosexuals have historically been subject to invidious discrimination, laws which burden homosexuals as a class should be subjected to heightened scrutiny under the equal protection clause. Indeed, the two propositions may be complementary: In all probability, homosexuality is not considered a deeply-rooted part of our traditions precisely because homosexuals have historically been subjected to invidious discrimination. In any case, homosexuals do not become "fair game" for discrimination simply because their sexual practices are not considered part of our mainstream traditions.

A hypothetical may help make the point. Suppose a city passed a "single family occupancy" housing ordinance allowing only members of the immediate, nuclear family to live in the same house. Suppose further that a disproportionate number of black families in the community lived together in extended families that included, for example, cousins and grandparents. Finally, suppose the ordinance was motivated by a racially discriminatory purpose. A black family challenging the ordinance could raise a due process claim, arguing that the ordinance impermissibly intruded on "deeply rooted" family traditions. In real life, the Court found such a due process claim persuasive. But suppose the Court had rejected the due process claim. Suppose the Court had instead agreed with the city of East Cleveland that the privacy interests protected by the Constitution do not include extended family relationships -- that the due process clause does not "give grandmothers any fundamental rights with respect to grandsons." In that event, the black family could still challenge the ordinance on equal protection grounds, arguing that the ordinance discriminated against blacks. Could anyone seriously maintain that the Court's hypothetical refusal to give due process protection to "extended family" living would have any bearing on the black family's equal protection claim? Of course not. And the black family's equal protection claim would be no less viable even if the Court in the hypothetical had ruled that due process does protect the nuclear family (in the hypothetical, the form disproportionately favored by the whites in the community) but does not protect the extended family (disproportionately favored by blacks).

The relationship between Hardwick and Watkins' case is exactly the same as the relationship between the due process and equal protection claims in this hypothetical. Whether homosexual conduct is protected by the due process clause is an entirely separate question from whether the equal protection clause prohibits discrimination against homosexuals. And in answering this latter question, it makes no difference whether the Hardwick Court intended to extend due process protection to heterosexual conduct, but not homosexual conduct. In sum, the equal protection question presented by Sgt. Watkins simply is not answered -- not in the slightest -- by Hardwick.

The Army also argues that Hardwick's concern "about the limits of the Court's role in carrying out its constitutional mandate" should prevent courts from holding that equal protection doctrine protects homosexuals from discrimination. To be sure, the Court in Hardwick justified its decision to cabin the right to privacy largely by pointing to the problems allegedly created when judges recognize constitutional "rights not readily identifiable in the Constitution's text" and "having little or no cognizable roots in the language or design of the Constitution." The Court stressed its concern that such rights might be perceived as involving "the imposition of the Justices' own choice of values on the States and the Federal Government" and that this antidemocratic perception might undermine the legitimacy of the Court. Finally, the Court expressed the more specific concern about potential difficulties in defining the contours of the right to privacy.

Whatever one might think about the Hardwick Court's concerns about substantive due process in general and the right of privacy in particular, these concerns have little if any relevance to equal protection doctrine. The right to equal protection of the laws has a clear basis in the text of the Constitution. This principle of equal treatment, when imposed against majoritarian rule, arises from the Constitution itself, not from judicial fiat. Moreover, equal protection doctrine does not prevent the majority from enacting laws based on its substantive value choices. Equal protection simply requires that the majority apply its values evenhandedly. Indeed, equal protection doctrine plays an important role in perfecting, rather than frustrating, the democratic process. The constitutional requirement of evenhandedness advances the political legitimacy of majority rule by safeguarding minorities from majoritarian oppression. The requirement of evenhandedness also facilitates a representation of minorities in government that advances the operation of representative democracy. Finally, the practical difficulties of defining the requirements imposed by equal protection, while not insignificant, do not involve the judiciary in the same degree of value-based line-drawing that the Supreme Court in Hardwick found so troublesome in defining the contours of substantive due process. In sum, the driving force behind Hardwick is the Court's ongoing concern with the expansion of rights under substantive due process, not an unbounded antipathy toward a disfavored group.

The Army also relies upon Beller v. Middendorf, 632 F.2d 788 (9th Cir. 1980), Hatheway v. Secretary of the Army, 641 F.2d 1376 (9th Cir.), and DeSantis v. Pacific Tel. & Tel. Co., 608 F.2d 327 (9th Cir. 1979), to argue that the Ninth Circuit has already rejected the kind of equal protection attack Watkins makes. In my view, the equal protection question Watkins raises -- whether the Army's regulations should be subjected to strict scrutiny because homosexuals constitute a suspect class -- was not addressed in any of these Ninth Circuit cases.

The Army's reliance on Beller is misplaced because Beller, like Hardwick, is a substantive due process case, not an equal protection case. In rejecting a substantive due process challenge to Navy regulations providing for the discharge of personnel who engaged in homosexual acts, our court held in Beller that substantive due process required only that courts balance the governmental and individual interests at stake in a fashion similar to intermediate scrutiny. As now-Justice Kennedy's carefully tailored opinion makes clear, Beller's appeal did "not require us to address the question whether consensual private homosexual conduct is a fundamental right as that term is used in equal protection . . . [and was] not presented to us as implicating a suspect or quasi-suspect classification. . . . Substantive due process, not equal protection, was the basis of the constitutional claim, and we address the case in those terms." Thus, Beller, like Hardwick, has no relevance to Watkins' claim that the challenged governmental regulations discriminate against a suspect class in violation of equal protection doctrine. See Sethy v. Alameda County Water Dist., 545 F.2d 1157, 1159-60 (9th Cir. 1976) (en banc) (a prior decision is not precedent on issues that were neither raised by counsel nor discussed in the opinion of the court); Sakamoto v. Duty Free Shoppers, 764 F.2d 1285, 1288 (9th Cir. 1985) (same).

The Army's reliance on Hatheway v. Secretary of the Army, 641 F.2d 1376 (9th Cir.), is also misplaced. In Beller, our court reserved two distinct equal protection questions: first, whether the challenged regulations penalizing homosexual conduct burdened the exercise of a fundamental or important substantive right to engage in certain conduct; second, whether the challenged regulations discriminated against a suspect or quasi-suspect class. As explained below, in Hatheway we clearly answered the first of these discrete equal protection questions. The Army argues, however, that Hatheway also decided the second question reserved in Beller -- the question raised in Watkins' claim -- whether homosexuals constitute a suspect or quasi-suspect class.

Hatheway, a soldier convicted of committing sodomy, claimed that the Army was prosecuting cases involving homosexual sodomy while refusing to prosecute cases involving heterosexual sodomy. Our court "understood Hatheway's claim (that the commission of a homosexual act is an impermissible basis for prosecution) to be an equal protection argument," which we treated as resting on the branch of equal protection doctrine concerned with whether a governmental classification burdens a fundamental or important substantive right to engage in certain conduct. Thus, we explicitly characterized Hatheway's claim "that the commission of a homosexual act is an impermissible basis for prosecution" to be the sort of equal protection claim that "implicate[d] the 'right to be free . . . from unwarranted intrusions into one's privacy'" (quoting Stanley v. Georgia, 394 U.S. 557, 564 (1969)). We then reasoned that the interest at stake in Hatheway was similar to the substantive interest at stake in Beller. Because in Beller we decided that under the due process clause the right to engage in homosexual conduct merited "heightened solicitude," but not strict scrutiny, in Hatheway we adopted this assessment for the purposes of our fundamental rights equal protection analysis. Accordingly, we applied intermediate scrutiny to the Army's actions and held that "the selection of cases involving homosexual acts for Article 125 prosecutions" was permissible because such prosecutions bore "a substantial relationship to an important government interest." Thus, we rejected Hatheway's claim based on an analysis of the fundamental rights branch of equal protection doctrine, the branch of equal protection doctrine upon which Watkins does not rely.

The Army argues that Hatheway should nonetheless be read as having decided the suspect class question. In support of this argument, the Army relies upon a single sentence in a footnote -- the opinion's only reference to suspect class analysis. In footnote 6 we wrote: "Though 'the courts have not designated homosexuals a "suspect" or "quasi-suspect" classification so as to require more exacting scrutiny,' DeSantis v. Pacific Tel. & Tel. Co., 608 F.2d 327, 333 (9th Cir. 1979), heightened scrutiny is independently required where a classification penalizes the exercise of a fundamental right. See Shapiro v. Thompson, 394 U.S. 618, 634 (1969)." Although I recognize that the intended purpose of this footnote is not entirely clear, I cannot fairly read this passing reference as an adjudication of the important and unresolved constitutional question whether homosexuals constitute a suspect or quasi-suspect class for the purpose of equal protection analysis. Rather, I read footnote 6 as simply clarifying the distinction between the suspect class and fundamental rights branches of equal protection doctrine while acknowledging that at the time of the Hatheway decision courts had not yet decided whether homosexuals constitute a suspect or quasi-suspect class. That the critical language in footnote 6 is taken directly from our opinion in DeSantis, supra, informs our reading. In DeSantis, we acknowledged that our court had not yet designated homosexuals as a suspect or quasi-suspect class, but we did not decide that homosexuals should not be so designated. Similarly, in footnote 6 of Hatheway, we remarked on the existing state of the law with respect to homosexuals without deciding the open question whether homosexuals constitute a suspect or quasi-suspect class. In other words, I read Hatheway as interpreting the equal protection claim presented as resting solely on the fundamental rights branch of equal protection analysis. Hatheway is also distinguishable from this case because, like both Hardwick and Beller, Hatheway involved a classification based on homosexual conduct, not homosexual orientation. As I note throughout my opinion, this distinction is relevant to an analysis of Watkins' particular equal protection claim.

Because I read Hatheway as not deciding the suspect class issue, and because the suspect class and fundamental rights branches of equal protection doctrine involve very separate inquiries, see e.g., San Antonio School Indep. District v. Rodriguez, 411 U.S. 1, 18-39 (1973); Perry, “Modern Equal Protection,” 79 Colum.L.Rev. 1023, 1074-83 (1979); “Developments in the Law -- Equal Protection,” 82 Harv.L.Rev. 1065, 1087-1131 (1969), Hatheway does not stand in the way of Watkins' equal protection claim.

Finally, I must reject the Army's contention that in DeSantis v. Pacific Tel. & Tel. Co., 608 F.2d 327 (9th Cir. 1979), our court held that homosexuals do not constitute a suspect or quasi-suspect class. In DeSantis, we considered whether homosexuals were a protected class within the meaning of 42 U.S.C. Section 1985(3), which secures a right of action against private parties who conspire to deprive "any person or class of persons of the equal protection of the laws." We held that section 1985(3) protects only those groups that have been previously determined by Congress or the courts to need special Federal assistance in protecting their civil rights. Applying this standard, we concluded that homosexuals could not receive the protection of section 1985(3), in part because "the courts have not designated homosexuals a 'suspect' or ' quasi-suspect' classification," (emphasis added). We did not, and did not need to, consider whether homosexuals should be considered a suspect class. Thus, our decision that section 1985(3) did not protect homosexuals turned simply on the point that courts had not yet designated homosexuals a suspect class. Although DeSantis does not articulate the reasons that section 1985(3) requires a prior governmental determination, it seems likely -- since section 1985(3) authorizes suits against private individuals and requires no state action -- that our court's interpretation of the statute was animated by concerns about providing potential defendants with sufficient notice of the statute's scope. Cf. Marks v. United States, 430 U.S. 188, 192 (1977) (judicial enlargement of the scope of criminal statute without fair notice violates due process).

While neither the Supreme Court nor the Ninth Circuit has decided the question presented in Watkins' appeal -- whether persons of homosexual orientation constitute a suspect class under equal protection doctrine -- several other circuits have considered the different but related question whether laws burdening the class of individuals engaging in homosexual conduct trigger heightened scrutiny under the equal protection clause. Only one circuit, however, has given the issue more than cursory treatment. In Padula v. Webster, 822 F.2d 97 (D.C.Cir. 1987), the District of Columbia Circuit rejected an equal protection challenge to the FBI's policy of discriminating against "practicing homosexuals" in its hiring decisions. The D.C. Circuit did not analyze whether the class of persons engaging in homosexual conduct satisfies the traditional indicia of suspectness, but rather concluded summarily (as the Army urges us to do here) that "it would be quite anomalous, on its face, to declare status defined by conduct that states may constitutionally criminalize as deserving of strict scrutiny under the equal protection clause." The D.C. Circuit reasoned that "if the [Supreme] Court [in Hardwick] was unwilling to object to state laws that criminalize the behavior that defines the class, it is hardly open to a lower court to conclude that state sponsored discrimination against the class is invidious. After all, there can hardly be more palpable discrimination against a class than making the conduct that defines the class criminal."

Padula's reasoning rests on the false premise that Hardwick issues a blanket approval for discrimination against homosexuals. To repeat what I said above, Hardwick held only that the constitutionally protected right to privacy does not extend to homosexual sodomy. The case had nothing to do with equal protection. I see no principled way to transmogrify the Court's holding that the due process clause permits states to criminalize specific sexual conduct commonly engaged in by homosexuals into a holding that the equal protection clause gives states a license to pass "homosexual laws" -- laws imposing special restrictions on gays because they are gay. Thus, I find Padula unpersuasive. Moreover, as I have reiterated throughout this opinion, the regulations at issue here target orientation, not conduct -- the trait at issue in Padula.

In sum, no federal appellate court has decided the critical issue raised by Watkins' claim: whether persons of homosexual orientation constitute a suspect class under equal protection doctrine. To be sure, Hardwick forecloses Watkins from making a due process claim that the Army's regulations impinge on an asserted fundamental right to engage in homosexual sodomy. But Watkins makes no such claim. Rather, he claims only that the Army's regulations discriminate against him because of his membership in a disfavored group -- homosexuals. This claim is not barred by precedent.

I now address the merits of Watkins' argument that the Army's regulations must be subjected to strict scrutiny because homosexuals constitute a suspect class under equal protection jurisprudence. The Supreme Court has identified several factors that guide our suspect class inquiry. I now turn to each of these factors.

The first factor the Supreme Court generally considers is whether the group at issue has suffered a history of purposeful discrimination. See, e.g., Cleburne, supra; Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 313 (1976); Rodriguez, supra; Frontiero v Richardson, 411 U.S. 677 (1973) (plurality). As the Army concedes, it is indisputable that "homosexuals have historically been the object of pernicious and sustained hostility." Rowland v. Mad River Local School Dist., 470 U.S. 1009, 1014 (1985) (Brennan, J., dissenting from denial of cert.). Recently courts have echoed the same harsh truth: "Lesbians and gays have been the object of some of the deepest prejudice and hatred in American society." High Tech Gays v. Defense Industrial Security Clearance Office, 668 F. Supp. 1361, 1369 (1987) (invalidating Defense Department practice of subjecting gay security clearance applicants to more exacting scrutiny than heterosexual applicants); see also BenShalom v. Secretary of the Army, 703 F. Supp. 1372 (1989) (LEXIS, U.S. Dist. 1989) (homosexuals historically subject to discrimination).

Discrimination against homosexuals has been pervasive in both the public and private sectors. Legislative bodies have excluded homosexuals from certain jobs and schools, and have prevented homosexuals marriage. In the private sphere, homosexuals continue to face discrimination in jobs, housing and churches. See generally “Note, An Argument for the Application of Equal Protection Heightened Scrutiny to Classifications Based on Homosexuality,” 57 S.Cal.L.Rev. 797, 824-25 (1984) (documenting the history of discrimination). Moreover, reports of violence against homosexuals have become commonplace in our society. In sum, the discrimination faced by homosexuals is plainly no less pernicious or intense than the discrimination faced by other groups already treated as suspect classes, such as aliens or people of a particular national origin. See, e.g., Cleburne, supra (identifying suspect groups).

The second factor that the Supreme Court considers in suspect class analysis is difficult to capsulize and may in fact represent a cluster of factors grouped around a central idea -- whether the discrimination embodies a gross unfairness that is sufficiently inconsistent with the ideals of equal protection to term it "invidious." Consideration of this additional factor makes sense. After all, discrimination exists against some groups because the animus is warranted -- no one could seriously argue that burglars form a suspect class. See Tribe, “The Puzzling Persistence of Process-Based Constitutional Theories,” 89 Yale L.J. 1063, 1075 (1980); “Note,” supra. In giving content to this concept of gross unfairness, the Court has considered (1) whether the disadvantaged class is defined by a trait that "frequently bears no relation to ability to perform or contribute to society," Frontiero, supra (plurality); (2) whether the class has been saddled with unique disabilities because of prejudice or inaccurate stereotypes; and (3) whether the trait defining the class is immutable. See Cleburne, supra; Plyler v. Doe, 457 U.S. 202 (1982); Murgia, supra; Frontiero, supra (plurality). I consider these questions in turn.

Sexual orientation plainly has no relevance to a person's "ability to perform or contribute to society." Sergeant Watkins' exemplary record of military service stands as a testament to quite the opposite. Moreover, as the Army itself concluded, there is not a scintilla of evidence that Watkins' avowed homosexuality "had either a degrading effect upon unit performance, morale or discipline, or upon his own job performance."

This irrelevance of sexual orientation to the quality of a person's contribution to society also suggests that classifications based on sexual orientation reflect prejudice and inaccurate stereotypes -- the second indicium of a classification's gross unfairness. See Cleburne, supra. I agree with Justice Brennan that "discrimination against homosexuals is 'likely . . . to reflect deep-seated prejudice rather than . . . rationality.'" Rowland, supra (Brennan, J., dissenting from denial of cert.) (quoting Plyler, supra).

The Army suggests that the opprobrium directed towards gays does not constitute prejudice in the pejorative sense of the word, but rather is simply appropriate public disapproval of persons who engage in immoral behavior. The Army equates homosexuals with sodomists and justifies its regulations as simply reflecting a rational bias against a class of persons who engage in criminal acts of sodomy. In essence, the Army argues that homosexuals, like burglars, cannot form a suspect class because they are criminals.

The Army's argument rests on two false premises. First, as I have noted throughout this opinion, the class burdened by the regulations at issue in this case is defined by the sexual orientation of its members, not by their sexual conduct. To my knowledge, homosexual orientation itself has never been criminalized in this country. Moreover, any attempt to criminalize the status of an individual's sexual orientation would present grave constitutional problems. See generally Robinson v. California, 370 U.S. 660 (1962).

Second, little of the homosexual conduct covered by the regulations is criminal. The regulations reach many forms of homosexual conduct other than sodomy such as kissing, hand-holding, caressing, and hand-genital contact. Yet, sodomy is the only consensual adult sexual conduct that Congress has criminalized. Indeed, the Army points to no law, federal or state, which criminalizes any form of private consensual homosexual behavior other than sodomy. The Army's argument that its regulations merely ban a class of criminals might be relevant, although not necessarily persuasive, if the class at issue were limited to sodomists. But the class banned from Army service is not comprised of sodomists, or even of homosexual sodomists; the class is comprised of persons of homosexual orientation whether or not they have engaged in sodomy.

Finally, I turn to immutability as an indicator of gross unfairness. The Supreme Court has never held that only classes with immutable traits can be deemed suspect. Cf., e.g., Cleburne, supra (casting doubt on immutability theory; and stating the defining characteristics of suspect classes without mentioning immutability); Murgia, supra (same); Rodriguez, supra (same). I nonetheless consider immutability because the Supreme Court has often focused on immutability, see, e.g., Plyler, supra; Frontiero, supra (plurality), and has sometimes described the recognized suspect classes as having immutable traits, see, e.g., Parham v. Hughes, 441 U.S. 347, 351 (1979) (plurality opinion) (describing race, national origin, alienage, illegitimacy, and gender as immutable).

It is clear that by "immutability" the Court has never meant strict immutability in the sense that members of the class must be physically unable to change or mask the trait defining their class. People can have operations to change their sex. Aliens can ordinarily become naturalized citizens. The status of illegitimate children can be changed. People can frequently hide their national origin by changing their customs, their names, or their associations. Lighter skinned blacks can sometimes "pass" for white, as can Latinos for Anglos, and some people can even change their racial appearance with pigment injections. See J. Griffin, Black Like Me (1977). At a minimum, then, the Supreme Court is willing to treat a trait as effectively immutable if changing it would involve great difficulty, such as requiring a major physical change or a traumatic change of identity. Reading the case law in a more capacious manner, "immutability" may describe those traits that are so central to a person's identity that it would be abhorrent for government to penalize a person for refusing to change them, regardless of how easy that change might be physically. Racial discrimination, for example, would not suddenly become constitutional if medical science developed an easy, cheap, and painless method of changing one's skin pigment. See Tribe, supra. See generally “Note, The Constitutional Status of Sexual Orientation: Homosexuality as a Suspect Classification,” 98 Harv.L.Rev. 1285, 1303 (arguing that the ability to change a trait is not as important as whether the trait is a "determinative feature of personality").

With these principles in mind, I have no trouble concluding that sexual orientation is immutable for the purposes of equal protection doctrine. Although the causes of homosexuality are not fully understood, scientific research indicates that we have little control over our sexual orientation and that, once acquired, our sexual orientation is largely impervious to change. See Note, supra (collecting sources); see also L. Tribe, supra. Scientific proof aside, it seems appropriate to ask whether heterosexuals feel capable of changing their sexual orientation. Would heterosexuals living in a city that passed an ordinance burdening those who engaged in or desired to engage in sex with persons of the opposite sex find it easy not only to abstain from heterosexual activity but also to shift the object of their sexual desires to persons of the same sex? It may be that some heterosexuals and homosexuals can change their sexual orientation through extensive therapy, neurosurgery or shock treatment. See L. Tribe, supra. But see Note, supra. But the possibility of such a difficult and traumatic change does not make sexual orientation "mutable" for equal protection purposes. To express the same idea under the alternative formulation, I conclude that allowing the government to penalize the failure to change such a central aspect of individual and group identity would be abhorrent to the values animating the constitutional ideal of equal protection of the laws.

The final factor the Supreme Court considers in suspect class analysis is whether the group burdened by official discrimination lacks the political power necessary to obtain redress from the political branches of government. See, e.g., Cleburne, supra; Plyler, supra; Rodriguez, supra. Courts are understandably reluctant to extend heightened protection under equal protection doctrine to groups fully capable of securing their rights through the political process. It cannot be seriously disputed, however, that homosexuals as a group cannot protect their right to be free from invidious discrimination by appealing to the political branches.

The very fact that homosexuals have historically been underrepresented in and victimized by political bodies is itself strong evidence that they lack the political power necessary to ensure fair treatment at the hands of government. In addition, homosexuals as a group are handicapped by structural barriers that operate to make effective political participation unlikely if not impossible. First, the social, economic, and political pressures to conceal one's homosexuality operate to discourage gays from openly protesting anti-homosexual governmental action. Ironically, by "coming out of the closet" to protest against discriminatory legislation and practices, homosexuals expose themselves to the very discrimination they seek to eliminate. As a result, the voices of many homosexuals are not even heard, let alone counted. Cf. J. Ely, Democracy and Distrust (1980). "Because of the immediate and severe opprobrium often manifested against homosexuals once so identified publicly, members of this group are particularly powerless to pursue their rights openly in the political arena." Rowland, supra (Brennan, J., dissenting from denial of cert.).

Even when gays do come out of the closet to participate openly in politics, the general animus towards homosexuality may render this participation ineffective. Many heterosexuals, including elected officials, find it difficult to empathize with and take seriously the arguments advanced by homosexuals, in large part because of the lack of meaningful interaction between the heterosexual majority and the homosexual minority. Most people have little exposure to gays, both because they rarely encounter gays and because -- as I noted above -- homosexuals are often pressured into concealing their sexual identity. Thus, elected officials sensitive to public prejudice and ignorance, and insensitive to the needs of the homosexual constituency, may refuse to even consider legislation that even appears to be pro-homosexual. See Note, supra. Indeed, the Army itself argues that its regulations are justified by the need to "maintain the public acceptability of military service," because "toleration of homosexual conduct . . . might be understood as tacit approval" and "the existence of homosexual units might well be a source of ridicule and notoriety." These barriers to the exercise of political power both reinforce and are reinforced by the underrepresentation of avowed homosexuals in the decisionmaking bodies of government and the inability of homosexuals to prevent legislation hostile to their group interests. See Frontiero, supra (plurality) (underrepresentation of women in government caused in part by history of discrimination); Cleburne, supra (reasoning that the existence of legislation responsive to the needs of the mentally disabled belied the claim that they were politically powerless).

In sum, all of the relevant factors drive me to the conclusion that homosexuals constitute a suspect class for equal protection purposes. Moreover, the principles that animate equal protection doctrine -- the principles that gave rise to these factors in the first place -- reinforce that conclusion. See also J. Ely, supra (classifications based on homosexuality merit heightened scrutiny); L. Tribe, supra (same).

Having concluded that homosexuals constitute a suspect class, I now must subject the Army's regulations facially discriminating against homosexuals to strict scrutiny. Consequently, I may uphold the regulations only if they are "'necessary to promote a compelling governmental interest.'" Dunn v. Blumstein, 405 U.S. 330, 342 (1972) (quoting Shapiro, supra); see also University of Calif. Regents v. Bakke, 438 U.S. 265, 357 (1978) (Opinion of Brennan, White, Marshall & Blackmun, JJ.). The requirement of necessity means that no less restrictive alternative is available to promote the compelling governmental interest. See Dunn, supra; Bakke, supra (Opinion of four justices).

I recognize that even under strict scrutiny, my review of military regulations must be more deferential than comparable review of laws governing civilians. See Goldman v. Weinberger, 475 U.S. 503 (1986). While the Supreme Court does not "purport to apply a different equal protection test because of the military context, [it does] stress the deference due congressional choices among alternatives in exercising the congressional authority to raise and support armies and make rules for their governance." Rostker v. Goldberg, 453 U.S. 57, 71 (1981) (citing Schlesinger v. Ballard, 419 U.S. 498 (1975)). I question whether this special deference is appropriate in Watkins' case given that Congress has chosen not to regulate homosexuality or any form of sexual conduct engaged in by military personnel save for one exception -- Congress has chosen to criminalize sodomy by military personnel whether committed "with another person of the same or opposite sex" (emphasis added). Hence, if anything, the statute reflects an absence of congressional intent to discriminate on the basis of sexual orientation.

In any case, even granting special deference to the policy choices of the military, I must reject many of the Army's asserted justifications because they illegitimately cater to private biases. For example, the Army argues that it has a valid interest in maintaining morale and discipline by avoiding hostilities and "'tensions between known homosexuals and other members [of the armed services] who despise/detest homosexuality'" (quoting and incorporating into their argument Beller, supra). The Army also expresses its "'doubts concerning a homosexual officer's ability to command the respect and trust of the personnel he or she commands'" because many lower-ranked heterosexual soldiers despise and detest homosexuality (quoting and incorporating Beller, supra. Finally, the Army argues that the presence of gays in its ranks "might well be a source of ridicule and notoriety, harmful to the Army's recruitment efforts" and to its public image.

These concerns strike an all-too-familiar chord. For much of our history, the military's fear of racial tension kept black soldiers separated from whites. As recently as World War II both the Army chief of staff and the Secretary of the Navy justified racial segregation in the ranks as necessary to maintain efficiency, discipline, and morale. See G. Ware, William Hastie: Grace Under Pressure 99, 134 (1984). Today, it is unthinkable that the judiciary would defer to the Army's prior "professional" judgment that black and white soldiers had to be segregated to avoid interracial tensions. Indeed, 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. See Palmore v. Sidoti, 466 U.S. 429 (1984).

In Palmore, a state granted custody of a child to her father because her white mother had remarried a black man. The state rested its decision on the best interests of the child, reasoning that, despite improvements in race relations, the social reality was that the child would likely suffer social stigmatization if she had parents of different races. A unanimous Court, in an opinion by Chief Justice Burger, conceded the importance of the state's interest in the welfare of the child, but nonetheless reversed with the following reasoning:

It would ignore reality to suggest that racial and ethnic prejudices do not exist or that all manifestations of those prejudices have been eliminated. . . . The question, however, is whether the reality of private biases and the possible injury they might inflict are permissible considerations for removal of an infant child from the custody of its natural mother. We have little difficulty concluding that they are not. The Constitution cannot control such prejudices but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.

Thus, Palmore forecloses the Army from justifying its ban on homosexuals on the ground that private prejudice against homosexuals would somehow undermine the strength of our armed forces if homosexuals were permitted to serve. See also Cleburne, supra (even under rationality review of discrimination against group that is neither suspect nor quasi-suspect, catering to private prejudice is not a cognizable state interest).

The Army's defense of its regulations, however, goes beyond its professed fear of prejudice in the ranks. Apparently, the Army believes that its regulations rooting out persons with certain sexual tendencies are not merely a response to prejudice, but are also grounded in legitimate moral norms. In other words, the Army believes that its ban against homosexuals simply codifies society's moral consensus that homosexuality is evil. Yet, even accepting arguendo this proposition that anti-homosexual animus is grounded in morality (as opposed to prejudice masking as morality), and assuming further that the Army is an appropriate governmental body to articulate moral norms, equal protection doctrine does not permit notions of majoritarian morality to serve as compelling justification for laws that discriminate against suspect classes.

A similar principle animates Loving v. Virginia, 388 U.S. 1 (1967), in which the Supreme Court struck down a Virginia statute outlawing marriages between whites and blacks. Although the Virginia legislature may have adopted this law in the sincere belief that miscegenation -- the mixing of racial blood lines -- was evil, this moral judgment could not justify the statute's discrimination on the basis of race. Like the Army's regulations proscribing sexual acts only when committed by homosexual couples, the Virginia statute proscribed marriage only when undertaken by mixed-race couples. In both cases, the government did not prohibit certain conduct, it prohibited certain conduct selectively, only when engaged in by certain classes of people. Although courts may sometimes have to accept society's moral condemnation as a justification even when the morally condemned activity causes no harm to interests outside notions of morality, see Hardwick, supra (accepting moral condemnation as justification under rationality review), our deference to majoritarian notions of morality must be tempered by the equal protection principles which require that those notions be applied evenhandedly. Laws that limit the acceptable focus of one's sexual desires to members of the opposite sex, like laws that limit one's choice of spouse (or sexual partner) to members of the same race, cannot withstand constitutional scrutiny absent a compelling governmental justification. This requirement would be reduced to a nullity if the government's assertion of moral objections only to interracial couples or only to homosexual couples could itself serve as a tautological basis for the challenged classification.

The Army's remaining justifications for discriminating against homosexuals may not be illegitimate, but they bear little relation to the regulations at issue. For example, the Army argues that military discipline might be undermined if emotional relationships developed between homosexuals of different military rank. Although this concern might be a compelling and legitimate military interest, the Army's regulations are poorly tailored to advance that interest. No one would suggest that heterosexuals are any less likely to develop emotional attachments within military ranks than homosexuals. Yet the Army's regulations do not address the problem of emotional attachments between male and female personnel, which presumably subjects military discipline to similar stress. Surely, the Army's interest in preventing emotional relationships that could erode military discipline would be advanced much more directly by a ban on all sexual contact between members of the same unit, whether between persons of the same or opposite sex. Cf. Cleburne, supra (rejecting certain asserted justifications under rationality review where the justification would extend to other groups but the challenged classification did not). Here the Army's regulations disqualify all homosexuals whether or not they have developed any emotional or sexual relationships with other soldiers.

Also bearing little relation to the regulations is the Army's professed concern with breaches of security. Certainly the Army has a compelling interest in excluding persons who may be susceptible to blackmail. It is evident, however, that homosexuality poses a special risk of blackmail only if a homosexual is secretive about his or her sexual orientation. The Army's regulations do nothing to lessen this problem. Quite the opposite, the regulations ban homosexuals only after they have declared their homosexuality or have engaged in known homosexual acts. The Army's concern about security risks among gays could be addressed in a more sensible and less restrictive manner by adopting a regulation banning only those gays who had lied about or failed to admit their sexual orientation. In that way, the Army would encourage, rather than discourage, declarations of homosexuality, thereby reducing the number of closet homosexuals who might indeed pose a security risk. Moreover, even if banning homosexuals could lessen security risks, there appears to be no reason for treating homosexuality as a nonwaivable disqualification from military service while treating other more serious potential sources of blackmail as waivable disqualifications. (See the regulations making drug abuse and the commission of other serious military offenses waivable disqualifications).

CONCLUSION

The Army's regulations violate the constitutional guarantee of equal protection of the laws because they discriminate against persons of homosexual orientation, a suspect class, and because the regulations are not necessary to promote a legitimate compelling governmental interest. I would thus reverse the district court's rulings denying Watkins' motion for summary judgment and granting summary judgment in favor of the Army, and remand with instructions to enter a declaratory judgment that the relevant Army Regulations are constitutionally void on their face, and to enter an injunction requiring the Army to consider Watkins' reenlistment application without regard to his sexual orientation.

CANBY, Circuit Judge, concurring:

I concur wholeheartedly in Judge Pregerson's majority opinion. My concurrence indicates no retreat, however, from my conviction that the Army's discrimination against Watkins because of his homosexual orientation denies him equal protection of the laws. I joined Judge Norris' eloquent opinion so holding in Watkins II, and I agree with everything Judge Norris says today on the equal protection point. Because we are en banc, and the constitutional issue is a recurring one, I think I may appropriately reach it even though equitable estoppel may dispose of the case.

CYNTHIA HOLCOMB HALL, Circuit Judge, dissenting.

Sergeant Perry Watkins has proven himself to be a loyal, talented, and honest soldier. The majority is rightly impressed by Watkins' uniformly outstanding performance evaluations and the persistent efforts of his immediate superiors to insure his continued advancement in the United States Army. I share the majority's admiration of Watkins' fine service to his country. Watkins' record has but one blemish under Army regulations: his homosexuality. Watkins brought this lawsuit seeking to enjoin the Army from considering his homosexuality in passing upon the merits of his reenlistment application.

During Watkins' tenure, Army regulations have always precluded the enlistment of homosexuals. The gravamen of Watkins' claim is that such discrimination against homosexuals constitutes a violation of his right to equal protection under the fifth amendment. The en banc majority shies away from this issue, however, and grants Watkins the relief he seeks on an alternative rationale. The majority holds that the Army is equitably estopped from refusing to reenlist him due to the Army's long-standing knowledge of his homosexuality. I dissent from this holding as an unwarranted application of common law principles to matters within the military's expertise.

The majority's holding on the merits of Watkins' equitable estoppel claim is entirely unpersuasive. While the Supreme Court has declined to accept a government invitation to adopt a rule that equitable estoppel may never be invoked against the government, Heckler v. Community Health Services, 467 U.S. 51, 60-61 (1984), the Court has yet to uphold even one such claim. Notably, the Court has reversed this court's invocation of equitable estoppel many times, on facts no less sympathetic than Watkins'. See, e.g., INS v. Miranda, 459 U.S. 14, 17-19 (1982) (per curiam) (reversing Ninth Circuit decision equitably estopping INS from denying resident status to alien spouse of citizen when petitioner became ineligible during INS delay in processing application); INS v. Hibi, 414 U.S. 5 (1973) (per curiam) (reversing Ninth Circuit decision equitably estopping INS from denying citizenship to Filipino war veteran); see also Montana v. Kennedy, 366 U.S. 308, 314-15 (1961) (government not estopped to deny citizenship to child of U.S. citizen born while his mother was living abroad, even though government official advised her that she could not return to the U.S. to have her baby).

The majority's assessment that the Army's treatment of Watkins amounts to "affirmative misconduct" is especially unconvincing and demands refutation. The Supreme Court stated in Heckler that "when the Government is unable to enforce the law because the conduct of its agents has given rise to an estoppel, the interest of the citizenry as a whole in obedience to the rule of law is undermined." For this reason, "the Government may not be estopped on the same terms as any other litigant." Accordingly, the courts require that "[a] party seeking to raise estoppel against the government must establish 'affirmative misconduct going beyond mere negligence'. . . ." Wagner v. Director, Federal Emergency Mgmt. Agency, 847 F.2d 515, 519 (9th Cir. 1988) (quoting Morgan v. Heckler, 779 F.2d 544, 545 (9th Cir. 1985)).

The affirmative misconduct prerequisite to governmental estoppel insures that the citizenry's justifiable expectation that the government will enforce the laws uniformly will not be lightly disrupted. The majority fails to appreciate that its failure to give genuine substance to the affirmative misconduct element disrupts this expectation.

The majority concludes that "the Army affirmatively misrepresented in its official records throughout Watkins' fourteen-year military career that he was qualified for reenlistment." The misconduct the majority identifies is the Army's failure to enforce its long-standing policy against the enlistment of homosexuals.

The Army's prior practice of excusing Watkins' homosexuality, despite regulations precluding his reenlistment, simply was not affirmative misconduct. Equitable estoppel is triggered by "a definite misrepresentation of fact to another person. . . ." Heckler, 467 U.S. at 59 (quoting the Restatement (Second) of Torts (1979)). In the context of governmental estoppel, therefore, the key issue is whether the government's definite misrepresentation of fact constitutes affirmative misconduct. The term affirmative suggests a distinction between misfeasance and nonfeasance, though these are "slippery terms." Santiago v. Immigration & Naturalization Service, 526 F.2d 488, 493 (9th Cir. 1975) (en banc).

The Army's prior leniency and understanding in permitting Watkins to reenlist was not a promise or active representation by the Army that its regulation prohibiting homosexuals was a nullity. At most, the Army's conduct in reenlisting Watkins in the past created, by inference, a representation that the Army would overlook its regulation as to a particular enlistment period. Such apparent acquiescence or ambivalence does not meet the threshold level of misfeasance needed to trigger equitable estoppel against the military.

Although the majority strives mightily to distance itself from the facts of Lavin v. Marsh, 644 F.2d 1378 (9th Cir. 1981), that effort is ultimately unsuccessful. In Lavin, Army Reserve recruiters induced the plaintiff to enlist by emphasizing pension benefits, and the Reserve subsequently "led Lavin to believe he was working toward pension benefits." Nevertheless, the court held that the Army was not equitably estopped from enforcing a years-of-service regulation which required Lavin's removal from the service before he was eligible for pension benefits.

In this case, Watkins does not argue that the Army affirmatively informed him that he was not subject to its regulation against the enlistment of homosexuals. As Lavin demonstrates, however, even such a direct misrepresentation can fail to constitute affirmative misconduct. If the word "affirmative" is to have any meaning, the Army must do more than choose not to enforce strictly a regulation on its books.

The majority's confusion over the meaning of "affirmative misconduct" is evident. For example, the majority states that the Army "plainly acted affirmatively in admitting, reclassifying, reenlisting, retaining, and promoting Watkins." Does the majority really mean to suggest that the Army's reenlistment of Watkins was an act of misconduct? Surely not. Finally, the majority fails to assure that Watkins relied to his detriment on all cited acts of affirmative misconduct.

The Lavin decision is also especially instructive as to the reasonableness of Watkins' reliance upon his inferential understanding that his homosexuality would not impede his career in the Army. "Persons dealing with the government are charged with knowing government statutes and regulations, and they assume the risk that government agents may exceed their authority and provide misinformation." Lavin, supra. Watkins simply was not justified in assuming that the Army's decision to accept a particular application for reenlistment would insure such acceptance for all time. New administrations must be allowed to pursue new policies so long as these policies do not run afoul of statutory or constitutional provisions. The majority greatly undermines the prerogative of executive officials to implement new programs and policies.

Finally, the majority concedes that the government may be estopped only where "the public's interest will not suffer undue damage by imposition of the liability" (quoting Wagner, supra). The majority attempts to finesse this issue by stating that the "harm to the public interest if reenlistment is not prevented is nonexistent. . . . [because] plaintiff has demonstrated that he is an excellent soldier." In other words, reenlisting Watkins will not harm the public interest because the majority thinks that the Army is better off with Watkins, even though he is a homosexual, than it would be without him.

The majority does not justify the ability of judges to substitute their assessment of a homosexual's impact on military preparedness for the Army's absent substantial federal interests. Courts are not particularly well-suited to determine whether individual homosexual servicemen bring more to the Army than they take from it. In any event, the majority fails even to undertake this task, relying solely upon the undisputed fact that Watkins is an excellent soldier. The Army has concluded that having homosexual soldiers in the Army, even good soldiers like Watkins, interferes with the Army's mission. The majority does not challenge this assessment.

Furthermore, the majority fails to acknowledge the ramifications of its holding. We simply have no idea how many "known" homosexuals the Army has reenlisted in years past. By ignoring the ability of other homosexuals to invoke the equitable estoppel rationale advanced by the majority, it greatly minimizes the probable damage to the public interest, as judged by the Army.

Judges Trott, Beezer, and Goodwin concur in the dissent.