United States Court of Appeals
For the First Circuit
Nos. 06-2313, 06-2381
THOMAS COOK; MEGAN DRESCH; LAURA GALABURDA; JACK GLOVER;
DAVID HALL; MONICA HILL; JENNY LYNN KOPFSTEIN; JENNIFER MCGINN;
JUSTIN PEACOCK; DEREK SPARKS; STACY VASQUEZ,
JAMES E. PIETRANGELO, II,
ROBERT M. GATES
, Secretary of Defense; MICHAEL CHERTOFF,
Secretary of Homeland Security; UNITED STATES OF AMERICA,
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge]
Howard, Circuit Judge,
Campbell, Senior Circuit Judge
, District Judge.
Stuart F. Delery, with whom Benjamin C. Mizer, Wilmer Cutler
Pickering Hale and Dorr LLP, Sharra E. Greer, Kathi S. Westcott,
Sharon E. Debbage Alexander, Aaron D. Tax, and Servicemembers Legal
Defense Network were on brief, for appellants.
James E. Pietrangelo, II, pro se.
Gregory G. Katsas, Principal Deputy Associate Attorney General
with whom Michael J. Sullivan, United States Attorney, Peter D.
Keisler, Assistant Attorney General, Jonathan F. Cohn, Deputy
Assistant Attorney General, Anthony J. Steinmeyer, Assistant
Director Appellate Staff, Civil Division and Mark T. Quinlivan,
Assistant United States Attorney were on brief, for appellees.
Tobias Barrington Wolff, on brief for amici curiae Akhil Reed
Amar, C. Edwin Baker, Erwin Chemerinsky, Owen M. Fiss, Pamela S.
Karlan, Andrew Koppelman, Kathleen M. Sullivan, and Laurence H.
Tribe, on brief for amici curiae Constitutional Law Professors.
Virginia A. Seitz, Eamon P. Joyce, and Sidley Austin LLP,
Leslie M. Hill, Robert Weiner, Christopher Anderson, and
Arnold & Porter LLP, on brief for amici curiae Law Professors.
Rose A. Saxe, Matthew A. Coles, Kenneth Y. Choe, and Sarah
Wunsch, on brief for amicus curiae American Civil Liberties Union
and American Civil Liberties Union of Massachusetts.
Patricia M. Logue and Bonnie Scott Jones, on brief for amicus
curiae Lambda Legal Defense and Education Fund, Inc.
John E. Bies, D. Jean Veta, and Covington & Burling, on brief
for amicus curiae of American Sociological Association and Social
Steven W. Fitschen and Barry C. Hodge, on brief for amicus
curiae of the National Legal Foundation.
Gary D. Buseck, Mary L. Bonauto, Gay & Lesbian Advocates &
Defenders, William M. Hohengarten, Luke C. Platzer, and Jenner &
Block LLP, on brief for amicus curiae Gay & Lesbian Advocates &
June 9, 2008
HOWARD, Circuit Judge. In 1993, Congress enacted a
statute regulating the service of homosexual persons in the United
States military. 10 U.S.C. § 654 (2007)(the Act). The Act, known
as "Don't Ask, Don't Tell," provides for the separation of members
of the military who engage, attempt to engage, intend to engage, or
have a propensity to engage in a homosexual act. Id. § 654(b). In
the aftermath of this congressional action, several members of the
military brought constitutional challenges, claiming the Act
violated the due process and equal protection components of the
Fifth Amendment and the free speech clause of the First Amendment.
These challenges were rejected in other circuits. See Able v.
United States, 155 F.3d 628 (2d Cir. 1998); Holmes v. Cal. Army
Nat'l Guard, 124 F.3d 1126 (9th Cir. 1997); Richenberg v. Perry, 97
F.3d 256 (8th Cir. 1996); Able v. United States, 88 F.3d 1280 (2d
Cir. 1996); Thomasson v. Perry, 80 F.3d 915 (4th Cir. 1996) (en
In 2003, the United States Supreme Court invalidated, on
substantive due process grounds, two convictions under a Texas law
criminalizing sodomy between consenting homosexual adults.
Lawrence v. Texas, 539 U.S. 558 (2003). Lawrence has reinvigorated
the debate over the Act's constitutionality. E.g., Pamela Glazner,
Constitutional Doctrine Meets Reality: Don't Ask, Don't Tell in
Light of Lawrence v. Texas, 46 Santa Clara L. Rev. 635 (2006);
Note, The Military's Ban on Consensual Sodomy in a Post-Lawrence
World, 21 Wash. U. J. L. & Pol’y 379 (2006); Jeffrey S. Dietz,
Getting Beyond Sodomy: Lawrence and Don't Ask, Don't Tell, 2 Stan.
J. C. R. & C. L. 63 (2005). This case is the second post-Lawrence
challenge to the Act to be decided by a federal court of appeals.
I. Statutory and Regulatory Scheme
We begin by summarizing the statutory framework and the
accompanying Department of Defense (Department) directives. During
the 1992 campaign, President Clinton, preceding his first election,
promised to revisit the longstanding Department policy of
separating homosexual individuals from military service. After
taking office, President Clinton directed the Secretary of Defense
to review Department policy, and Congress undertook its own review.
As part of the congressional review, then-Chairman of the
Joint Chiefs of Staff, Colin Powell, in testimony explicitly
adopted by the Senate Armed Services Committee, explained the
rationale for the policy of separating certain homosexual members
of the military from continued service:
It is very difficult in a military setting, where you don't get a choice of association, where you don't get a choice of where you live,
to introduce a group of individuals who are proud, brave, loyal, good Americans, but who favor a homosexual lifestyle, and put them in with heterosexuals who would prefer not to have
somebody of the same sex find them sexually attractive, put them in close proximity and ask
them to share the most private facilities together, the bedroom, the barracks, latrines, and showers. I think that this is a very difficult problem to give the military. I think it would be prejudicial to good order and
discipline to try to integrate that in the current military structure.
S. Rep. No. 103-112 at 283 (1993).
Congress' review culminated in the passage of the Act.
See National Defense Authorization Act for Fiscal Year 1994, Pub.
L. No. 103-160, 107 Stat. 1547 § 571, codified at 10 U.S.C. § 654.
The Act opens with a series of findings that echo General Powell's
concerns: "military life is fundamentally different from civilian
life;" "[s]uccess in combat requires military units that are
characterized by high morale, good order and discipline, and unit
cohesion;" and "the presence in the armed forces of persons who
demonstrate a propensity or intent to engage in homosexual acts
would create an unacceptable risk to the high standards of morale,
good order and discipline, and unit cohesion that are the essence
of military capability." See 10 U.S.C. § 654(a).
To avoid the risk to unit cohesion created by the
continued service of those who are likely to engage in a homosexual
act, the Act provides that members of the military are subject to
separation from service where one of three findings is made: (1)
the member has engaged or attempted to engage in a homosexual act;
(2) the member has "state[d] that he or she is a homosexual or
words to that effect;" or (3) the member has married or attempted
to marry a person known to be of the same biological sex. Id. §
If a finding is made that a member of the military has
engaged or attempted to engage in a homosexual act, the member may
avoid separation by establishing that: (1) the conduct was a
departure from the member's usual and customary behavior; (2) such
conduct is unlikely to recur; (3) such conduct was not accomplished
by use of force, coercion, or intimidation; (4) under the
particular circumstances of the case, the member's continued
presence in the military is consistent with the interests of the
military in proper discipline, good order, and morale; and (5) the
member does not have a propensity or intent to engage in a future
homosexual act. Id. § 654(b)(1)(A)-(E). Similarly, a member found
to have stated, in effect, that he or she is homosexual, may avoid
separation by demonstrating "that he or she is not a person who
engages in, attempts to engage in, has a propensity to engage in,
or intends to engage in a homosexual act." Id. § 654(b)(2).
Pursuant to authority granted by the Act, the Department
issued directives for executing separation proceedings. The
directives recite the three reasons under the Act for separation
and provide that a member's statement that he or she is a
homosexual "creates a rebuttable presumption that the [member]
engages in, attempts to engage in, intends to engage in, or has a
propensity to engage in a homosexual act." DOD Directive 1332.40
§ E2.3 (1997). In considering whether a member has rebutted this
presumption, the military considers: (1) whether the member has
engaged in a homosexual act; (2) the member's credibility; (3)
testimony from others about the member's past conduct; (4) the
nature and circumstances of the member's statement; and (5) any
other evidence relevant to whether the member is likely to engage
in a homosexual act. Id.
II. The Complaint and Motion to Dismiss
The plaintiffs are twelve former members of the United
States military who were separated from service under the Act. The
plaintiffs' complaint asserted the following claims: (1) the Act
violates the plaintiffs' right to substantive due process on its
face and as applied; (2) the Act denies the plaintiffs equal
protection of the law on the basis of sexual orientation; and (3)
the portion of the Act that triggers separation proceedings based
on a member's statement that he or she is homosexual violates the
right to freedom of speech.
The government moved to dismiss the plaintiffs' complaint
under Fed. R. Civ. P. 12(b)(6). The government also contended that
the plaintiffs' due process and equal protection claims failed
because the Act was subject only to rational basis review, and
Congress' "unit cohesion" justification sufficed to sustain the law
under this standard as a matter of law. It also argued that the
evidentiary use of a member's statement that he or she is
homosexual to prove that the member has engaged, intends to engage,
or has a propensity to engage in a homosexual act does not abridge
First Amendment rights.
III. The District Court Opinion
The district court began its analysis by dispatching with
the plaintiffs' as-applied due process challenges. Cook v.
Rumsfeld, 429 F. Supp. 2d 385 (D. Mass. 2006). The court
ruled that, while the complaint asserted that the plaintiffs
were bringing as-applied challenges, in fact, they pleaded no
Although the complaint alleges that [the Act] is unconstitutional . . . as it has been particularly applied to each of [the plaintiffs], their legal reasoning . . . make[s] it clear that the constitutional defects they perceive inhere in any application
of the policy to homosexual service members, rather than in the particular way the policy might be (or might have been) applied in specific cases. In other words, none of the plaintiffs claim that the policy, if valid in general, was misapplied in his or her particular case to result in separation when a proper application of the policy would have allowed him or her to remain in service. Rather, their objections . . . are that the policy was applied, not how it was applied. This is classically a facial challenge to the statute, and their arguments will be evaluated with that understanding.
Id. at 390 (emphases supplied).
The district court then turned to the plaintiffs' facial
challenges, beginning with the due process and equal protection
claims. Id. at 391-407. The court believed that the success of
these claims hinged primarily on the level of scrutiny that applies
after Lawrence. Id. at 393. The court closely analyzed Lawrence
and determined that the Supreme Court employed rational basis
review to invalidate the convictions under the Texas law against
homosexual sodomy. The court, thus, concluded that Lawrence did
not alter the applicability of rational basis review, which had
been applied in pre-Lawrence challenges to the Act. Id. at 395-96.
The court then determined, in accord with pre-Lawrence authority,
that Congress had set forth a rational reason for the statute -- to
promote unit cohesion and discipline -- and therefore the facial
due process and equal protection claims failed. Id. at 397-406.
Finally, the district court rejected the plaintiffs'
First Amendment challenge. Id. at 407-08. The court noted that
the Act does not make a member's statement that he or she is a
homosexual a basis for separation; rather separation is mandated
only where there has been homosexual conduct or a demonstration of
a propensity or intent to engage in such conduct. Id. at 407.
Based on this understanding, the court concluded that the Act
merely provides for the "evidentiary use" of a member's statement
regarding sexual orientation and that such use does not violate the
First Amendment. Id. at 408.
Having concluded that all of the plaintiffs' claims
failed as a matter of law, the district court dismissed the
complaint with prejudice and entered a final judgment. Id. at 410.
The plaintiffs appealed.
IV. Standard of Review
We review a district court's grant of a motion to dismiss
de novo, accepting the complaint's well-pleaded facts as true and
indulging all reasonable inferences in the plaintiff's favor. SFW
Arecibo, Ltd. v. Rodriguez, 415 F.3d 135, 138-39 (1st Cir. 2005).
To survive a motion to dismiss, a complaint must allege a
"plausible entitlement to relief." Bell Atl. Corp. v. Twombly, 127
S. Ct. 1955, 1967 (2007); Rodriguez-Ortiz v. Margo Caribe, Inc.,
490 F.3d 92, 95 (1st Cir. 2007). In reviewing a Rule 12(b)(6)
dismissal, "we are not wedded to the [district] court's rationale
and may affirm an order of dismissal on any basis made apparent
from the record." McCloskey v. Mueller, 446 F.3d 262, 266 (1st
On appeal, the plaintiffs challenge all aspects of the
district court's ruling. They contend that the district court
incorrectly dismissed their substantive due process and equal
protection claims because the court misunderstood Lawrence to
mandate a rational basis standard of review, rather than some form
of heightened judicial scrutiny.
In addition, the plaintiffs dispute the district court's
ruling that they did not present as-applied due process and equal
protection challenges. Finally, they posit that they sufficiently
pleaded a First Amendment challenge to the portion of the Act that
triggers separation proceeding based on a member's statement of
sexual identity because such a statement is a form of protected
speech that is punished by the Act.
A. Due Process
We agree with the parties and the district court that
interpreting Lawrence is the critical first step in evaluating the
plaintiffs' substantive due process claim. Prior to Lawrence, the
courts of appeals, relying on the Supreme Court's holding in Bowers
v. Hardwick, 478 U.S. 186 (1986) that homosexuals did not possess
a substantive due process interest in engaging in sodomy,
considered due process challenges to the Act under rational basis
See, e.g., Richenberg, 97 F.3d at 260-61; Thomasson, 80
F.3d at 928. But Lawrence overruled Bowers, so the post-Lawrence
standard for reviewing a substantive due process challenge to the
Act is unclear. Before addressing the district court's conclusion
that the rational basis standard continues to apply, we review
basic substantive due process principles.
It has long been held that, despite their name, the due
process clauses of the Fifth and Fourteenth Amendments "guarantee
more than fair process." Troxel v. Granville, 530 U.S. 57, 65
(2000). The substantive component of due process "provides
heightened protection against government interference with certain
fundamental rights and liberty interests." Washington v.
Glucksberg, 521 U.S. 702, 720 (1997).
The Supreme Court acts with "caution and restraint" when
classifying a particular liberty interest as triggering substantive
due process protection, Moore v. City of E. Cleveland, 431 U.S.
494, 502 (1977), because classifying an interest as protected by
due process to a "great extent, place[s a] matter outside the arena
of public debate and legislative action." Glucksberg, 521 U.S. at
720. The Court has recognized that the "Nation's history, legal
tradition, and practices provide the crucial guideposts for
responsible decisionmaking" in this area. Id. at 721. But it has
also recognized that while "history and tradition are the starting
point," they are "not in all cases the ending point of the
substantive due process inquiry." Lawrence, 539 U.S. at 572.
In Glucksberg, the Supreme Court catalogued the following
"liberty interests" as "specially protected" by the due process
clause: the right to marry; to have children; to direct the
education of one's children; to enjoy marital privacy; to use
contraception; to maintain bodily integrity; to choose to have an
abortion; and to refuse unwanted medical treatment. Glucksberg,
521 U.S. at 720. The question here is whether Lawrence added to
this list an adult's right "to engage in consensual sexual intimacy
in the home." Lawrence, 539 U.S. at 567.
In Lawrence, the Court considered a substantive due
process challenge to two criminal convictions under a Texas statute
criminalizing homosexual sodomy. Id. at 564. The petitioners were
two males who had been arrested for engaging in a sexual act in one
of their apartments. Id. at 563. The statute at issue provided
that a "person commits an offense if he engages in deviate sexual
intercourse with another individual of the same sex."
Lawrence Court characterized the constitutional question as
"whether petitioners' criminal convictions for adult consensual
sexual intimacy in the home violate their vital interests in
liberty and privacy protected by the Due Process Clause." Id. at
Lawrence addressed this question by considering a line of
Supreme Court authority recognizing various due process rights that
protect the formation and perpetuation of intimate relationships.
Id. at 564. It identified Griswold v. Connecticut, 381 U.S. 479
(1965), as the "pertinent beginning point." Griswold invalidated
a law banning the use of contraceptives by married couples because
there is due process protection for the realm of privacy implicit
in the marital relationship and bedroom. Lawrence, 539 U.S. at
564-65. From there, Lawrence discussed later cases that broadened
the interest recognized in Griswold, including Eisenstadt v. Baird,
405 U.S. 438 (1972), which invalidated a ban on contraception use
by unmarried people; Roe v. Wade, 410 U.S. 113 (1973), which
invalidated a law restricting a woman's right to abort a pregnancy;
and Carey v. Population Servs. Int'l, 431 U.S. 678 (1977), which
struck down a prohibition on the sale of contraception to persons
under sixteen years of age. Relying on these precedents, Lawrence
concluded that Supreme Court substantive due process precedent
establishes protection for "certain decisions regarding sexual
conduct [that] extend beyond the martial relationship."
Lawrence, 539 U.S. at 565.
Lawrence used these precedents as the launching point for
its critique of Bowers. In Bowers, the Court rejected a due
process challenge to a Georgia statute similar to the one
challenged in Lawrence. Lawrence, 539 U.S. at 566. Lawrence
criticized Bowers for focusing too narrowly on the "right of
homosexuals to engage in sodomy" rather than on the broader right
of adults to engage in private, consensual sexual intimacy:
To say that the issue in Bowers was simply the
right to engage in certain sexual conduct demeans the claim the individual [in Bowers]
put forward, just as it would demean a married
couple were it to be said that marriage is
simply about the right to have sexual
intercourse. The laws involved in Bowers and
here are, to be sure, statutes that purport to
do no more than prohibit a particular sexual
act. Their penalties and purposes, though,
have more far-reaching consequences, touching
upon the most private human conduct, sexual
behavior, and in the most private of places,
the home. The statutes do seek to control a
personal relationship that whether or not
entitled to formal recognition in law, is
within the liberty of persons to choose . . .
Id. at 566-67.
After identifying this analytical flaw in Bowers, the
Lawrence Court observed:[A]dults may choose to enter [into personal relationships] in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality
finds overt expression in intimate conduct with
another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.
Id. at 567.
Placing the final nail in Bowers' coffin, the Lawrence
Court quoted from Justice Stevens' Bowers dissent that "'individual
decisions by married persons, concerning the intimacies of their
physical relationship, even when not intended to produce offspring,
are a form of liberty protected by the Due Process Clause.
Moreover, this protection extends to intimate choices by unmarried
as well as married persons.'" Id. at 578 (quoting Bowers, 478 U.S.
at 216 (Stevens, J., dissenting)). In formally overruling Bowers,
the Court stated that "Justice Stevens' analysis . . . should have
been controlling in Bowers and should control here." Id.
Having dispatched with Bowers, the Court turned to
analyze the constitutionality of the convictions under the Texas
The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships
where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty
under the Due Process Clause gives them the full right to engage in their conduct without intervention from government. "It is a promise
of the Constitution that there is a realm of personal liberty which the government may not enter." The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.
Id. (quoting Planned Parenthood of Southeastern Pa. v. Casey, 505
U.S. 833, 847 (1992)).
Courts and commentators interpreting Lawrence diverge
over the doctrinal approach employed to invalidate the petitioners'
convictions. Some have read Lawrence to apply a rational basis
Others see the case as applying strict scrutiny.
a third group view the case as applying a balancing of state and
individual interests that cannot be characterized as strict
scrutiny or rational basis.
Lawrence's doctrinal approach is
"difficult to pin down." Nan D. Hunter, Living with Lawrence, 88
Minn. L. Rev. 1103 (2004). But we are persuaded that Lawrence did
indeed recognize a protected liberty interest for adults to engage
in private, consensual sexual intimacy and applied a balancing of
constitutional interests that defies either the strict scrutiny or
rational basis label.
There are at least four reasons for reading Lawrence as
recognizing a protected liberty interest. First, Lawrence relies
on the following due process cases for doctrinal support:
Griswold, Eisentstadt, Roe, Carey, and Casey. 539 U.S. at 565-66.
Each case resulted in the Supreme Court recognizing a due process
right to make personal decisions related to sexual conduct that
mandated the application of heightened judicial scrutiny. Id. It
would be strange indeed to interpret Lawrence as not recognizing a
protected liberty interest when virtually every case it relied upon
for support recognized such an interest.
Second, the language employed throughout Lawrence
supports the recognition of a protected liberty interest. Lawrence
associated the right at issue with the core constitutional rights
of "freedom of thought, belief, and expression," rights which
undoubtedly mandate special protection under the Constitution. Id.
at 563. It also stated that "liberty gives substantial protection
to adult persons in deciding how to conduct their private lives in
matters pertaining to sex." Id. at 572 (emphasis supplied). And
it concluded its analysis by stating that the "right to liberty
under the Due Process Clause" allowed the petitioners to engage in
"private sexual conduct" because "'[i]t is a promise of the
Constitution that there is a realm of personal liberty which the
government may not enter.'" Id. at 578 (quoting Casey, 505 U.S. at
847). Such language strongly suggests that Lawrence identified a
protected liberty interest.
Third, in overruling Bowers, Lawrence relied on Justice
Stevens' Bowers dissent as stating the controlling principles. Id.
at 578. The passage of Justice Stevens' dissent quoted in Lawrence
stated that "individual decisions by married persons, concerning
the intimacies of their physical relationship, even when not
intended to produce offspring, are a form of liberty protected by
the Due Process Clause . . . . Moreover, this protection extends to
intimate choices by unmarried as well as married persons." Id.
In support of this proposition, Justice Stevens cited Griswold,
Eisenstadt and Carey. Bowers, 478 U.S. at 216 (Stevens, J.,
dissenting). As discussed above, these are due process cases that
recognize protected liberty interests. Furthermore, in the very
next passage of Justice Stevens' dissent, he described these cases
as establishing rights that are "fundamental" and placed the right
of adults to engage in private intimate conduct in the same
category. Id. It is impossible to read Lawrence as declining to
recognize a protected liberty interest without ignoring the Court's
statement that Justice Stevens' Bowers dissent was controlling.
Finally, if Lawrence had applied traditional rational
basis review (the appropriate standard if no protected liberty
interest was at stake, see e.g., Medeiros, 431 F.3d at 33), the
convictions under the Texas statute would have been sustained. The
governmental interest in prohibiting immoral conduct was the only
state interest that Texas offered to justify the statute.
Lawrence, 539 U.S. at 582. It is well established that a
"legislature [can] legitimately act . . . to protect the societal
interest in order and morality." Barnes v. Glen Theatre, Inc., 501
U.S. 560, 569 (1991) (quoting Paris Adult Theatre I v. Slaton, 413
U.S. 49, 61 (1973)). Thus, Lawrence's holding can only be squared
with the Supreme Court's acknowledgment of morality as a rational
basis by concluding that a protected liberty interest was at stake,
and therefore a rational basis for the law was not sufficient.
Taking into account the precedent relied on by Lawrence,
the tenor of its language, its special reliance on Justice Stevens'
Bowers dissent, and its rejection of morality as an adequate basis
for the law in question, we are convinced that Lawrence recognized
that adults maintain a protected liberty interest to engage in
certain "consensual sexual intimacy in the home." The district
court, relying on cases from other circuits, read Lawrence as
applying rational basis review. We, however, do not find any of
the four primary reasons supporting this view persuasive. See Muth
v. Frank, 412 F.3d 808, 817-18 (7th Cir. 2005); Lofton v. Sec'y of
the Dep't of Children & Family Servs., 358 F.3d 804, 815-17 (11th
First, the argument has been made that Lawrence nowhere
explicitly stated that the right at issue was "fundamental" and
therefore the opinion cannot be read as recognizing a fundamental
right under the due process clause. See Cook, 429 F. Supp. 2d at
394. While it is true that Lawrence nowhere used the word
"fundamental" to describe the interest at stake, there are several
Supreme Court cases that have recognized protected liberty
interests without using this word. For example, in Washington v.
Harper, 494 U.S. 210, 223 (1990), the Supreme Court held that a
state prisoner "retains a significant liberty interest" under the
due process clause to avoid the unwanted administration of certain
drugs. And in Parham v. J.R., 442 U.S. 584, 600 (1979), the Court
described a child's "substantial liberty interest" in not being
confined unnecessarily for medical treatment. See also Casey, 505
U.S. at 851 (describing the interest as a "protected liberty");
Cruzan v. Director of Mo. Dept. of Health, 497 U.S. 261, 278 (1990)
(describing the interest as a "constitutionally protected liberty
interest"); Youngberg v. Romeo, 457 U.S. 307, 315 (1982)
(describing the interests as "liberty interests"). It is thus
clear that the Supreme Court does not always use the word
"fundamental" when it wishes to identify an interest protected by
substantive due process.
Second, it has been maintained that Lawrence could not
have identified a protected liberty interest because the Supreme
Court did not engage in a thorough analysis of the "Nation's
history and tradition" as required under Glucksberg. Muth, 412
F.3d at 817; Williams, 378 F.3d at 1236; Lofton, 358 F.3d at 816-17. This argument is based on the mistaken premise that the only
history relevant to the substantive due process inquiry is a
history demonstrating affirmative government action to protect the
right in question. But Glucksberg does not establish such a
requirement. Lawrence engaged in a thorough historical analysis
identifying the lack of a long history of government action to
punish the private consensual, intimate conduct of homosexuals.
This sort of historical analysis is not inconsistent with Supreme
Court precedent in this area. Indeed, if affirmative government
action protecting a right were required to trigger substantive due
process protection, at least some of the due process cases
recognizing a liberty interest would have come out differently
because there was no established history of government protection
for the right to have an abortion or to use contraception. See
Roe, 410 U.S. at 132-41 (reviewing history of abortion law to show
that laws restricting abortion are of recent vintage but not
showing any history of affirmative government action to protect the
right to an abortion); see also Williams, 378 F.3d at 1258-59.
Moreover, to the extent that Lawrence did not adhere to
the Glucksberg approach of locating the right to private,
consensual adult intimacy in the Nation's history and tradition, it
explicitly disavowed the exclusivity of this approach. See
Lawrence, 539 U.S. at 572 ("history and tradition are the starting
but not in all cases the ending point of the substantive due
process inquiry."). In this regard, the Lawrence Court stated:
[W]e think that our laws and traditions in the past half century are of most relevance here.
These references show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.
Id. at 571-72. Thus, Lawrence recognized that, in at least some
circumstances, the consideration of recent trends and practices is
relevant to defining the scope of protected liberty.
Third, it has been suggested that the Lawrence majority's
refusal to respond to Justice Scalia's Lawrence dissent, in which
he argued that the majority had not recognized a protected liberty
interest, indicates that the majority agreed with the dissent's
analysis. See Sylvester v. Fogley, 465 F.3d 851, 858 (8th Cir.
2006). The district court relied heavily on this point, observing
that "it might be expected that if [Justice Scalia's dissent]
wrongly characterized a principal holding of the case, the majority
would have answered and corrected it." Cook, 429 F. Supp. 2d at
This is a possible explanation for the majority's
silence, but it is not the only explanation. It is equally
possible that the Lawrence majority believed that the text of its
opinion stood for itself and that there was little to be gained by
debating Justice Scalia on this point. Cf. Cent. Bank of Denver
N.A. v. First Interstate Bank of Denver N.A., 511 U.S. 164, 187
(1994) ("Congressional inaction lacks persuasive significance
because several equally tenable inferences may be drawn from such
inaction. . . ."). Given the equally possible, but conflicting,
inferences that can be drawn from the majority's lack of response
to Justice Scalia's dissent, we think that there is little to be
gleaned about Lawrence's meaning from it.
Finally, it has been claimed that Lawrence's conclusion
that "[t]he Texas statute furthers no legitimate state interest
which can justify its intrusion into the personal and private life
of the individual" indicates that Lawrence did not recognize a
protected liberty interest. Sylvester, 465 F.3d at 857; Muth, 412
F.3d at 818; Lofton, 358 F.3d at 817 (emphasis supplied). This
argument is premised on the notion that the words "legitimate state
interest" indicate the application of rational basis review, which
is not the proper standard where a protected liberty interest is
implicated. As the district court stated, "[t]he use of the
appropriate adjective is telltale to constitutional lawyers. If
the Lawrence court had been evaluating the constitutionality of the
Texas statute under the more exacting standard where fundamental
interests are at stake, it would instead have asked whether the
state interest was compelling, rather than whether it was
legitimate." Cook, 429 F. Supp. 2d at 395.
We take a different view. A law survives rational basis
review so long as the law is rationally related to a legitimate
governmental interest. E.g., Nordlinger v. Hahn, 505 U.S. 1, 11-12
(1992). Rational basis review does not permit consideration of the
strength of the individual's interest or the extent of the
intrusion on that interest caused by the law; the focus is entirely
on the rationality of the state's reason for enacting the law. See
Heller v. Doe, 509 U.S. 312, 324 (1993) (a law "fails rational-basis review" only when it "rests on grounds wholly irrelevant to
the achievement of the State's objectives" or the State's
objectives are themselves invalid). Thus, the argument that
Lawrence did not recognize a protected liberty interest because it
used the words "legitimate state interest" divorces these word from
context -- a context which shows that Lawrence did not employ
traditional rational basis review since the Lawrence Court's
analysis focused on the individual's liberty interest. This view
is supported by Supreme Court cases that have recognized protected
liberty interests in the face of "legitimate state interests."
Casey, 505 U.S. at 853 (recognizing that even though protected
liberty interest was at stake, "the separate States could act in
some degree to further their own legitimate interests in protecting
prenatal life"); Addington v. Texas, 441 U.S. 418, 425-26 (1979)
(balancing the "individual's interest in not being involuntarily
confined indefinitely" against the state's "legitimate interest
under its parens patriae powers in providing care to its citizens
who are unable because of emotional disorders to care for
To say, as we do, that Lawrence recognized a protected
liberty interest for adults to engage in consensual sexual intimacy
in the home does not mean that the Court applied strict scrutiny to
invalidate the convictions. Several pre-Lawrence cases that have
recognized protected liberty interests did not mandate that the
challenged law be "narrowly tailored to serve a compelling state
interest" -- the strict scrutiny standard. For example, in Sell v.
United States, 539 U.S. 166, 179 (2003), the Court recognized a
"constitutionally protected liberty interest [for a criminal
defendant] in avoiding the unwanted administration of antipsychotic
drugs" and then applied a standard of review less demanding than
strict scrutiny by asking whether administering the drugs was
"necessary significantly to further important governmental trial-related interests." And similarly, in Casey, 505 U.S. at 877, the
Supreme Court reaffirmed a woman's fundamental right to choose to
have an abortion but applied the "undue burden" test which balanced
the state's legitimate interest in potential human life against the
extent of the imposition on the woman's liberty interest. See also
Troxel, 530 U.S. at 67-75 (invalidating law burdening due process
interest in parental autonomy without applying either rational
basis or strict scrutiny); Riggins v. Nevada, 504 U.S. 127, 135-36
(1990) (balancing an individual's interest in refusing psychotropic
drugs against the government's interest in trying a competent
criminal defendant for a violent crime); Cruzan, 497 U.S. at 278-79
(balancing "protected liberty interest" in refusing unwanted
medical treatment against the government interest in promoting
life); Harper, 494 U.S. at 223 (weighing a prisoner's interest in
refusing drugs against the government's interest in promoting a
safe prison environment); Youngberg, 457 U.S. at 320-22 (balancing
liberty interest of an individual to avoid bodily restraint against
the State's asserted reason for the restraint).
Lawrence is, in our view, another in this line of Supreme
Court authority that identifies a protected liberty interest and
then applies a standard of review that lies between strict scrutiny
and rational basis. In invalidating the convictions, the Lawrence
Court determined that there was no legitimate state interest that
was adequate to "justify" the intrusion on liberty worked by the
law. 539 U.S. at 578. In other words, Lawrence balanced the
strength of the state's asserted interest in prohibiting immoral
conduct against the degree of intrusion into the petitioners'
private sexual life caused by the statute in order to determine
whether the law was unconstitutionally applied. See Casey, 505
U.S. at 873 ("[N]ot every law which makes a right more difficult to
exercise is, ipso facto, an infringement of that right.").
Having defined the nature of the constitutional review
mandated by Lawrence, we now consider whether the plaintiffs'
facial due process challenge to the Act can survive a motion to
"A facial challenge to a legislative Act is, of course,
the most difficult challenge to mount successfully, since the
challenger must establish that no set of circumstances exists under
which the Act would be valid. The fact that [an Act] might operate
unconstitutionally under some conceivable set of circumstances is
insufficient to render it wholly invalid . . . ." United States
v. Salerno, 481 U.S. 739, 745 (1987); see also Comfort v. Lynn Sch.
Comm., 418 F.3d 1, 12 (1st Cir. 2005) (en banc). The Supreme Court
has recently emphasized the limits on facial challenges in the
substantive due process context. See Gonzales v. Carhart, 127 S.
Ct. 1610, 1639 (2007).
The plaintiffs' facial challenge fails. Lawrence did not
identify a protected liberty interest in all forms and manner of
sexual intimacy. Lawrence recognized only a narrowly defined
liberty interest in adult consensual sexual intimacy in the
confines of one's home and one's own private life. Lawrence, 539
U.S. at 567. The Court made it abundantly clear that there are
many types of sexual activity that are beyond the reach of that
opinion. Id., at 578. Here, the Act includes such other types of
sexual activity. The Act provides for the separation of a service
person who engages in a public homosexual act or who coerces
another person to engage in a homosexual act. Both of these forms
of conduct are expressly excluded from the liberty interest
recognized by Lawrence. Id.
The plaintiffs' as-applied challenge, on the other hand,
presents a more difficult question. The plaintiffs point out that
the Act could apply to some conduct that falls within the zone of
protected liberty identified by Lawrence. The Act, for example,
could cover homosexual conduct occurring off base between two
consenting adults in the privacy of their home.
Before addressing the significance of this observation,
we pause to recognize the unique context in which the liberty
interest at stake in this case arises. We are reviewing an
exercise of Congressional judgment in the area of military affairs.
The deferential approach courts take when doing so is well-established. Loving v. United States, 517 U.S. 748, 768 (1996)
(noting that the Supreme Court gives Congress "the highest
deference" in ordering military affairs) (citation omitted); Weiss
v. United States, 510 U.S. 163, 177 (1994) (recognizing that the
Supreme Court "[adheres] to [the] principle of deference in a
variety of contexts [such as] where the constitutional rights of
servicemen [are] implicated"); Rostker v. Goldberg, 453 U.S. 57, 70
(1981) ("[J]udicial deference . . . is at its apogee when
legislative action under the congressional authority to raise and
support armies and make rules and regulations for their governance
The Supreme Court has articulated essentially two reasons
for this deference. The first involves institutional competence.
The Court has remarked:
It is difficult to conceive of an area of
governmental activity in which courts have
less competence. The complex, subtle, and
professional decisions as to the composition,
training, equipping and control of a military
force are essentially professional military
judgments, subject always to civilian control
of the Legislative and Executive Branches.
Gilligan v. Morgan, 413 U.S. 1, 10 (1973); see also N.D. v. United
States, 495 U.S. 423, 443 (1990) (noting that where confronted with
questions relating to military operations the Court "properly
defer[s] to the judgment of those who must lead our Armed Forces in
The second relates to the constitutional power of
Congress to "raise and support armies and to make all laws
necessary and proper to that end." United States v. O'Brien, 391
U.S. 367, 377 (1968). The Court has described this power as "broad
and sweeping," id., and has further noted Congress' accompanying
responsibility for "the delicate task of balancing the rights of
servicemen against the needs of the military." Solorio v. United
States, 488 U.S. 435, 447 (1987).
It is unquestionable that judicial deference to
congressional decision-making in the area of military affairs
heavily influences the analysis and resolution of constitutional
challenges that arise in this context. The Court's examination of
the equal protection challenge leveled in Rostker provides an
example. That case concerned a statute that required only males to
register for selective service. The lower court had invalidated
the statute as unlawful gender discrimination. 453 U.S. at 63.
In reversing, the Court focused its analysis entirely on the
legislative record that led to Congress' action. The Court
discussed, in detail, the process Congress employed in considering
the issue, its consultation with all interested parties, its
serious consideration of the issues, including the constitutional
implications, and its clear articulation of the basis for its
decision. Id. at 72-80. The Court then declared the district
court's analysis striking down the law "quite wrong" because the
district court undertook "an independent evaluation of evidence
rather than adopting an appropriately deferential examination of
Congress' evaluation of the evidence." Id. at 82-83.
The Court's treatment of First Amendment and Due Process
challenges brought in this area similarly manifests this deference
to congressional judgment. In Parker v. Levy, 417 U.S. 733 (1974),
a case involving vagueness and overbreadth challenges to provisions
of the Uniform Code of Military Justice, the Court stated that
"Congress is permitted to legislate both with greater breadth and
with greater flexibility when the statute governs military
society." Id. at 755. In Weiss, the Court reemphasized that when
dealing with due process challenges "the tests and limitations
[associated with those challenges] may differ because of the
military context." 510 U.S. at 177 (citing Rostker, 453 U.S. at
Fully apprised of the constraints on our constitutional
inquiry when considering constitutional challenges in the military
context, we now examine both the process by which Congress passed
the Act and the rationale Congress advanced for it.
Congress' process for developing the Act was involved and
it included sustained consideration of the Act's necessity and its
impact on constitutional rights. After President Clinton was
inaugurated, he directed the Secretary of Defense to submit a draft
Executive Order "ending discrimination on the basis of sexual
orientation in determining who may serve in the Armed Services."
Memorandum on Ending Discrimination in the Armed Forces, 1 Pub.
Papers 23 (Jan. 29, 1993). The President instructed the Secretary
to consult with the military's professional leadership and others
concerned with the issue. Id. While this review was in progress,
an interim policy was imposed that ended the practice of asking new
recruits to confirm that they were heterosexual.
Congress quickly intervened. A few weeks after President
Clinton was sworn in, Congress passed a provision calling for a
review of the military's approach to homosexuals serving in the
military by the Secretary of Defense and the Senate Armed Services
Committee. See Pub. L. 103-3 § 601, 107 Stat. 6, 28-29 (1993).
Subsequently, the Department and congressional committees
engaged in an exhaustive policy review. The Senate and House Armed
Services Committees conducted fourteen days of hearings, heard more
than fifty witnesses, and traveled to military facilities to
investigate the issue. The Committees heard from witnesses with a
wide range of views and various backgrounds, including the
Secretary of Defense, the Chairman of the Joint Chiefs of Staff,
military and legal experts, enlisted personnel, officers, and
public policy activists. See Assessment of the Plan to Lift the
Ban on Homosexuals in the Military: Hearings Before the Military
Forces and Personnel Subcomm. of the House Comm. on Armed Services,
103 Cong., 1st Sess. (1993); Policy Concerning Homosexuality in the
Armed Forces: Hearings Before the Senate Comm. on Armed Services,
103 Cong., 1st Sess. (1993); Policy Implications of Lifting the Ban
on Homosexuals in the Military: Hearings Before the House Comm. on
Armed Servs., 103 Cong., 1st Sess. (1993).
While this congressional review was ongoing, the
Department conducted its own review. The Department convened a
military working group comprised of senior officers, commissioned
a RAND Corporation study, studied the history of the military's
response to social change, and consulted legal experts.
In July 1993, President Clinton announced a new policy
for the service of homosexuals in the military. Under the policy,
applicants for military service would not be asked their sexual
orientation but, once inducted into service, a member could be
separated for homosexual conduct. 1 Pub. Papers 1111 (July 19,
A few weeks after the President's announcement, the House
and Senate Armed Services Committees proposed to codify the
military's policy. The Senate Report, in support of this effort,
stated that the Committee was acting only after it had considered
"a wide range of experiences, including those of current and former
servicemembers who have publicly identified themselves as gay or
lesbian" and after having "carefully considered all points of
view." S. Rep. 103-112 at 270. Similarly, the House Committee
reported that its recommendation was based on "an extensive hearing
record as well as full consideration of the extended public debate
on this issue . . ." H.R. Rep. 103-200 at 287 (1993) reprinted in
1993 U.S.C.C.A.N 2073 at 2074. The Senate Report also focused
explicitly on the effect that the Act could have on constitutional
rights of homosexuals, concluding that "if the Supreme Court should
reverse its ruling in Bowers and hold that private consensual
homosexual acts between adults may not be prosecuted in civilian
society, this would not alter the committee's judgment as to the
effect of homosexual conduct in the armed forces." S. Rep. 103-112
Prior to the enactment of the Act, the full House and
Senate debated the measure and considered floor amendments. In
particular, each house rejected amendments that would have
permitted the military to develop whatever policy it deemed
appropriate and would have allowed the Department to resume asking
applicants to state their sexual orientation. 139 Cong. Rec.
S11168-11228 (Sept. 9, 1993); 139 Cong. Rec. H7084-86 (Sept. 29,
1993). The Act became law in November 1993, and, as stated
earlier, the Act expressly identified its purpose as preserving
"high standards of morale, good order and discipline, and unit
cohesion" in the military. 10 U.S.C. § 654(a)(15).
The circumstances surrounding the Act's passage lead to
the firm conclusion that Congress and the Executive studied the
issues intensely and from many angles, including by considering the
constitutional rights of gay and lesbian service members. S. Rep.
103-112 at 286-87. Congress ultimately concluded that the
voluminous evidentiary record supported adopting a policy of
separating certain homosexuals from military service to preserve
the "high morale, good order and discipline, and unit cohesion" of
Acknowledging the government interest identified in this
case, one that our deferential posture requires us to take at face
value, as-applied challenges to the Act must fail as well.
Here, as in Rostker, there is a detailed legislative
record concerning Congress' reasons for passing the Act. This
record makes plain that Congress concluded, after considered
deliberation, that the Act was necessary to preserve the military's
effectiveness as a fighting force, 10 U.S.C. § 654(a)(15), and
thus, to ensure national security. This is an exceedingly weighty
interest and one that unquestionably surpasses the government
interest that was at stake in Lawrence. See Lawrence, 539 U.S. at
585 (O'Connor, J., concurring).
Every as-applied challenge brought by a member of the
armed forces against the Act, at its core, implicates this
interest. Every member of the armed forces has one fact in common
-- at a moment's notice he or she may be deployed to a combat area.
10 U.S.C. § 654(a)(11). The conditions of service in such an area
bring into play the animating concerns behind the Act, namely,
maintaining the morale and unit cohesion that the military deems
essential to an effective fighting force. See 10 U.S.C §
654(a)(12), (15). Accordingly, we have no choice but to dismiss
the plaintiffs' as-applied challenge.
To be sure, deference to Congressional judgment in this
area does not mean abdication. Rostker, 453 U.S. at 67. But where
Congress has articulated a substantial government interest for a
law, and where the challenges in question implicate that interest,
judicial intrusion is simply not warranted. See id. at 68 ("[W]e
must be particularly careful not to substitute our judgment of what
is desirable for that of Congress, or our own evaluation of
evidence for a reasonable evaluation by the Legislative Branch.").
B. Equal Protection
In addition to their due process claim, the plaintiffs
assert that the Act is unconstitutional under equal protection
Unlike the due process claim, which is premised on
the constitutional protection afforded all citizens to engage in
certain sexual conduct, the equal protection claim is based on the
Act's differential treatment of homosexual military members versus
heterosexual military members. See generally Erwin Chemerinsky,
Constitutional Law: Principles and Policies § 10.1.1 (2d Ed. 2002)
(explaining the difference between a due process and an equal
protection challenge). The district court rejected this claim
under rational basis review.
Under equal protection jurisprudence, a governmental
classification aimed at a "suspect class" is subject to heightened
judicial scrutiny. See Mills v. State of Me., 118 F.3d 37, 46 (1st
Cir. 1997). Classifications that target non-suspect classes are
subject only to rational basis review. Id. The plaintiffs contend
that the district court erred by applying rational basis review
because the Supreme Court's decisions in Romer v. Evans, 517 U.S.
620 (1996), and Lawrence mandate a more demanding standard.
In Romer, the Supreme Court invalidated, on equal
protection grounds, a Colorado constitutional amendment which
prohibited the enactment of any measure designed to protect
individuals due to their sexual orientation. The Court analyzed
the constitutionality of the amendment through the prism of
rational basis, asking whether the classification bore "a rational
relation to some legitimate end." Id. at 631. Applying this
standard, the Court concluded that the amendment was
unconstitutional because the only possible justification for the
amendment was "animosity toward the class of persons affected,"
which does not constitute even "a legitimate governmental
interest." Id. at 634-35.
Romer, by its own terms, applied rational basis review.
The ground for decision was the notion that where "a law is
challenged as a denial of equal protection, and all that the
government can come up with in defense of the law is that the
people who are hurt by it happen to be irrationally hated or
irrationally feared, . . . it is difficult to argue that the law is
rational if 'rational' in this setting is to mean anything more
than democratic preference." Milner v. Apfel, 148 F.3d 812, 817
(7th Cir. 1998) (Posner, J.). Romer nowhere suggested that the
Court recognized a new suspect class. Absent additional guidance
from the Supreme Court, we join our sister circuits in declining to
read Romer as recognizing homosexuals as a suspect class for equal
protection purposes. Scarborough v. Morgan County Bd. of Ed., 470
F.3d 250, 261 (6th Cir. 2006); Citizens for Equal Prot. v. Bruning,
455 F.3d 859, 866 (8th Cir. 2006); Johnson v. Johnson, 385 F.3d
503, 532 (5th Cir. 2004); Lofton, 358 F.3d at 818; Veney v. Wyche,
293 F.3d 726, 731-32 (4th Cir. 2002); Holmes, 124 F.3d at 1132.
Lawrence does not alter this conclusion. As discussed
earlier, Lawrence was a substantive due process decision that
recognized a right in all adults, regardless of sexual orientation,
to engage in certain intimate conduct. Indeed, the Lawrence Court
explicitly declined to base its ruling on equal protection
principles, even though that issue was presented. See Lawrence,
539 U.S. at 574-75. Thus, there is no basis for arguing that
Lawrence changed the standard of review applicable to a legislative
classification based on sexual orientation.
As neither Romer nor Lawrence mandate heightened scrutiny
of the Act because of its classification of homosexuals, the
district court was correct to analyze the plaintiffs' equal
protection claim under the rational basis standard. As stated
earlier, an enactment survives this level of scrutiny so long as
the "classification drawn by the statute is rationally related to
a legitimate state interest." City of Cleburne, Tex. v. Cleburne
Living Ctr., 473 U.S. 432, 440 (1985).
The plaintiffs maintain that, even under this standard,
their claim survives because they will be able to demonstrate that
the Act was based on irrational animus and therefore is invalid
under Romer. We disagree. Congress has put forward a non-animus
based explanation for its decision to pass the Act. Given the
substantial deference owed Congress' assessment of the need for the
legislation, the Act survives rational basis review.
F.3d at 635-37; Holmes, 124 F.3d at 1132-40; Richenberg, 97 F.3d at
262; Thomasson, 80 F.3d at 292.
In sum, the district court was correct to reject the
plaintiffs' equal protection claim because homosexuals are not a
suspect class and the legitimate interests Congress put forward are
rationally served by the Act.
C. First Amendment
The plaintiffs' final challenge attacks the portion of
the Act that subjects a member to possible separation for making a
statement identifying himself or herself as a homosexual. The
plaintiffs assert that they have adequately stated a claim that
this aspect of the Act violates the First Amendment because it
subjects a member to separation for stating his or her sexual
The plaintiffs maintain that this aspect of the Act is
invalid because it restricts the content of the plaintiffs' speech
and forces them to pretend that they are heterosexual.
There is no question that members of the military are
engaging in speech when they state their sexual orientation. See
Hurley v. Irish-American Gay & Lesbian & Bisexual Group of Boston,
Inc., 515 U.S. 557, 574-75 (1995). There is also no question that
First Amendment protections apply to some degree in the military
context. See Goldman, 475 U.S. at 503. But "our review of
military regulations challenged on First Amendment grounds is far
more deferential than constitutional review of similar laws or
regulations designed for civilian society." Id. This limitation
is rooted in the recognition that free expression can sometimes
conflict with the military's compelling need to "foster instinctive
obedience, unity, commitment, and espirit de corps" and that "the
essence of military service is the subordination of the desires and
interests of the individual to the needs of service." Id.
The Act does affect the right of military members to
express their sexual orientation by establishing the possibility of
adverse consequences from announcing their sexual orientation. But
the Act's purpose is not to restrict this kind of speech. Its
purpose is to identify those who have engaged or are likely to
engage in a homosexual act as defined by the statute. The law is
thus aimed at eliminating certain conduct or the possibility of
certain conduct from occurring in the military environment, not at
restricting speech. See, e.g., Phillips v. Perry, 106 F.3d 1420,
1430 (9th Cir. 1997); Thomasson, 80 F.3d at 931. The Act relies on
a member's speech only because a member's statement that he or she
is homosexual will often correlate with a member who has a
propensity to engage in a homosexual act.
The Supreme Court has held that the First Amendment "does
not prohibit the evidentiary use of speech to establish" a claim
"or to prove motive or intent." Wisconsin v. Mitchell, 508 U.S.
476, 489 (1993); see also Wayte v. United States, 470 U.S. 598, 612
(1985). As the Fourth Circuit explained in rejecting a challenge
identical to the one presented here:
There is no constitutional impediment, . . . to
the use of speech as relevant evidence of facts
that may furnish a permissible basis for separation from military service. No First Amendment concern would arise, for instance, from the discharge of service members for declaring that they would refuse to follow orders, or that they were addicted to controlled substances. Such remarks provide evidence of activity that the military may validly proscribe.
Thomasson, 80 F.3d at 931.We think that the Fourth Circuit has correctly analyzed
this claim. To the extent that the Act may be constitutionally
applied to circumscribe sexual conduct, the First Amendment does
not bar the military from using a member's declaration of
homosexuality as evidence of a violation of the Act. We therefore
join the other courts that have rejected First Amendment challenges
to the Act on this basis. See Holmes, 124 F.3d at 1136; Able, 88
F.3d at 1300; Thomasson, 80 F.3d at 931.
The plaintiffs argue that, after Lawrence, this analysis
is "outmoded." We disagree. The Act does not punish a member for
making a statement regarding sexual orientation; separation from
service is mandated only because a member has engaged, intends to
engage or has a propensity to engage in a homosexual act. This is
still a question concerning conduct (or likely conduct); the
member's speech continues to have only evidentiary significance in
making this conduct-focused determination.
Citing Dawson v. Delaware, 503 U.S. 159 (1992), the
plaintiffs also argue that the First Amendment nevertheless limits
the kinds of statements that may be used by the government as
evidence in an adversary proceeding. In Dawson, the Supreme Court
held that the defendant's membership in a white supremacist group
could not be introduced against him in a capital sentencing hearing
because it violated the defendant's First Amendment right to
associate. Id. at 166-68. In reaching this conclusion, the Court
emphasized that the admission violated the First Amendment because
it had "no bearing on the issue being tried." Id. No similar
claim can be made here. A statement by a member that he or she is
homosexual is undoubtedly relevant to the kind of conduct a member
intends to engage in or has a propensity to engage in. See United
States v. Simkanin, 420 F.3d 397, 417-18 (5th Cir. 2005)
(concluding that Dawson did not apply where the defendant's
statement was relevant to the issues at sentencing). Therefore,
Dawson is inapposite.
Finally, plaintiffs argue that the Act's rebuttable
presumption violates their First Amendment rights. The Act's
rebuttable presumption works as follows. A military member may be
separated from the armed forces if,
the member has stated that he or she is a
homosexual or bisexual, or words to that
effect, unless there is a further finding,
made and approved in accordance with
procedures set forth in the regulations, that
the member has demonstrated that he or she is
not a person who engages in, attempts to
engage in, has a propensity to engage in, or
intends to engage in homosexual acts.
10 U.S.C. § 654(b)(2) (emphasis added).
The plaintiffs' attack on the rebuttable presumption is
twofold. First, they claim that for homosexual military members,
the rebuttable presumption is functionally impossible to rebut.
Because they are homosexual within the meaning of section
654(f)(1), they cannot prove that they are not homosexual as
section 654(b)(2) effectively requires. Second, the plaintiffs
argue that even if section 654(b)(2) did offer a presumption
capable of being rebutted by homosexual members, the existence of
such a presumption "would still force [them] and other gay and
lesbian service members to live in an environment that severely
restricts and chills constitutionally protected speech." We deal
with each contention in turn.
Each plaintiff has agreed that he or she is a person who
"engages in, attempts to engage in, has a propensity to engage in,
or intends to engage in homosexual acts." 10 U.S.C. § 654 (f)(1).
Because they admit they fall within section 654(f)(1)'s definition
of homosexual, none of them could have proved at a separation
proceeding that she or he was not a person who "engages in,
attempts to engage in, has a propensity to engage in, or intends to
engage in" prohibited conduct because, by definition, they are such
a person. See id. In that sense, for a military member who is
homosexual as defined by 654(f)(1), the rebuttable presumption
would be functionally impossible to rebut.
But that does not mean the Act violates the plaintiffs'
First Amendment rights. As noted earlier, the government may use
a member's statement that he or she is a homosexual as evidence
that he or she "engages in, attempts to engage in, has a propensity
to engage in, or intends to engage in homosexual acts." If a
person cannot show otherwise, because in fact he or she does engage
in or have such a propensity to engage in homosexual conduct, then
the military is entitled to separate that person from the service.
The military, in that scenario, is not punishing speech but conduct
or propensity to engage in conduct.
Moreover, the contention that it is functionally
impossible for a gay member to say "I am homosexual" and then rebut
the presumption according to the terms of section 654(b)(2) is
inaccurate on its face. A member's personal definition of
"homosexuality" may not be coextensive with the Act's. For
example, a person may say he or she is homosexual even though the
person does not engage in, attempt to engage in, have a propensity
to engage in, or intend to engage in homosexual acts. In that
scenario, there is a meaningful opportunity to rebut the
presumption. The Ninth Circuit's opinion in Holmes provides
One female Naval officer admitted to her
homosexuality but submitted a statement, in
which she stated, inter alia, that she
understands the rules against homosexual
conduct and intended to obey those rules.
Another female Naval officer stated that she
was a lesbian but that the statement 'in no
way, was meant to imply  any propensity or
intent or desire to engage in prohibited
124 F.3d at 1136.
Of course, a situation may arise where a gay member
triggers the rebuttable presumption by stating he is gay, proves he
is not a person who "engages in, attempts to engage in, has a
propensity to engage in, or intends to engage in homosexual acts,"
and yet is still separated from service. This member would have an
administrative challenge available to him. See 5 U.S.C. § 701. No
facts have been plead suggesting such a scenario arose in this
We now turn to the plaintiffs' alternative argument that
the rebuttable presumption, even if capable of being rebutted by
homosexual military members, chills their First Amendment rights.
The plaintiffs suggest that the presumption is content based and
thus unconstitutional. The Fourth Circuit rejected a similar
argument in Thomasson. It observed:
Whenever a provision prohibits certain acts,
it necessarily chills speech that constitutes
evidence of the acts. A regulation directed
at acts thus inevitably restricts a certain
type of speech; this policy is no exception.
But effects of this variety do not establish a
content-based restriction of speech.
Thomasson, 80 F.3d at 932.
As we explained, the Act's purpose is not to restrict
military members from expressing their sexual orientation. Its
purpose is to identify those who have engaged in or are likely to
engage in a homosexual act. The fact that the Act may, in
operation, have the effect of chilling speech does not change the
analysis. See Ward v. Rock Against Racism, 491 U.S. 781, 791
(1989) (noting that regulation is . . . content-neutral so long as
it is "'justified without reference to the content of the regulated
speech'" even if it has an "effect on some speakers or messages but
not others.") (citation omitted); City of Renton v. Playtime
Theatres, Inc., 475 U.S. 41, 47 (1986). Ultimately, the Act is
justified on a content-neutral, nonspeech basis; specifically,
maintaining the military's effectiveness as a fighting force.
"That the policy may hinge the commencement of administrative
proceedings on a particular type of statement does not convert it
into a content based enactment." Thomasson, 80 F.3d at 933.
VI. ConclusionThe constitutional challenges presented in this case are
all aimed at a federal statute regulating military affairs.
Although the wisdom behind the statute at issue here may be
questioned by some, in light of the special deference we grant
Congressional decision-making in this area we conclude that the
challenges must be dismissed.
We affirm the judgment of the district court. No costs
- Dissenting Opinion Follows -
SARIS, United States District Judge, concurring and
dissenting. I concur with the majority opinion regarding the
application of Lawrence to the “Don’t Ask, Don’t Tell” statute, 10
U.S.C. § 654 (the “Act”). I also concur with the majority’s
discussion of the plaintiffs’ equal protection challenge. However,
I respectfully dissent from the discussion of the plaintiffs’ claim
that 10 U.S.C. § 654(b)(2)
violates the First Amendment.
The military calls the evidentiary presumption created by
10 U.S.C. § 654(b)(2) a “rebuttable” presumption. See Department
of Defense (“DoD”) Directive No. 1332.14 ¶ E3.A22.214.171.124.2.2 (amended
1994) (“A statement by a Service member that he or she is a
homosexual or bisexual, or words to that effect, creates a
rebuttable presumption that the Service member engages in, attempts
to engage in, has a propensity to engage in, or intends to engage
in homosexual acts.”) (emphasis added). Because the plaintiffs
dispute that the presumption is rebuttable, I adopt the phrasing
used by the Second Circuit, and call the presumption the “statement
presumption.” See Able v. United States, 88 F.3d 1280, 1283 (2d
1. The Claims
Plaintiffs argue that the statement presumption violates
the First Amendment in two ways. First, they contend that the
presumption is a dead letter in practice because, as applied, “it
is functionally impossible for a gay service member to say ‘I am
gay’ and then prove that he has no ‘propensity’ to engage in
homosexual activity, even if the service member could show a track
record of celibacy and an honest intent to refrain from prohibited
conduct.” In the plaintiffs’ view, the only way to avoid discharge
is to recant their sexual orientation. As such, the statement
presumption is allegedly used to punish plaintiffs’ speech
concerning their own status as homosexuals.
Second, the plaintiffs argue that the statement
presumption is an unconstitutional allocation of the burden of
proof, which chills their own speech as well as a whole range of
protected expression by both gay and straight service members. The
plaintiffs argue that:
The provision’s burden falls on any speaker
whose “[l]anguage or behavior” suggests to “a
reasonable person” that the person “intended
to convey” that he or she is gay. This broad
definition could chill a whole range of
protected expression: A service member might
wave a rainbow flag or wear a pink triangle,
or he might state that he opposes “Don’t Ask,
Don’t Tell.” Under § 654's burden-shifting
mechanism, these possibilities and more could
force the service member -- whether straight
or gay -- into discharge proceedings where he
must prove that he has no propensity to engage
in homosexual conduct.
(internal citations omitted).
2. Content Neutrality
The starting point for the analysis is the difficult
question of whether the statement presumption restricts speech
based on its content or viewpoint. I ultimately agree with the
majority’s position that the statement presumption is content-neutral, but I believe that the issue is a much closer call.
“The First Amendment generally prevents government from
proscribing speech, or even expressive conduct, because of
disapproval of the ideas expressed. Content-based regulations are
presumptively invalid.” R.A.V. v. City of St. Paul, 505 U.S. 377,
382 (1992) (citations omitted). A content-based restriction “can
stand only if it satisfies strict scrutiny,” and thus is only
constitutional if it is “narrowly tailored to promote a compelling
Government interest.” United States v. Playboy Entm’t Group, Inc.,
529 U.S. 803, 813 (2000).
However, “[a] restriction that on its face appears to be
content-based, yet serves another purpose that by itself is not
speech restrictive, may be constitutionally permitted.” Able, 88
F.3d at 1294. Where a restriction does not “fit neatly into either
the ‘content-based’ or ‘content-neutral’ category,” the Supreme
Court has held that the speech restriction is content-neutral so
long as it is “justified without reference to the content of the
regulated speech.” City of Renton v. Playtime Theatres, Inc., 475
U.S. 41, 47-48 (1986) (finding zoning ordinance that limits
placement of adult theaters content-neutral because it was “aimed
not at the content of the films shown . . . but rather at the
secondary effects of such theaters on the surrounding community”)
(emphasis in original).
Even a content-neutral statute, though, must pass First
Amendment muster. A content-neutral regulation is permissible:
 if it is within the constitutional power
of the Government;
 if it furthers an important or substantial
 if the governmental interest is unrelated
to the suppression of free expression; and
 if the incidental restriction on alleged
First Amendment freedoms is no greater than is
essential to the furtherance of that interest.
Wayte v. United States, 470 U.S. 598, 611 (1985) (quoting United
States v. O’Brien, 391 U.S. 367, 377 (1968)).
The four circuits that addressed the constitutionality of
the Act soon after its passage (and before Lawrence)
First Amendment challenges to the statement presumption, but they
did not fully agree on the appropriate categorization of the First
Amendment restriction. In Thomasson v. Perry, 80 F.3d 915 (4th
Cir. 1996) (en banc), involving a First Amendment challenge to the
Act both on its face and as-applied, the Fourth Circuit rejected an
argument that the statement presumption suppressed speech on the
basis of its content and viewpoint, holding:
The statute does not target speech declaring
homosexuality; rather it targets homosexual
acts and the propensity or intent to engage in
homosexual acts, and permissibly uses the
speech as evidence. The use of speech as
evidence in this manner does not raise a
constitutional issue –- “the First Amendment .
. . does not prohibit the evidentiary use of
speech to establish the elements of a crime,”
or, as is the case here, “to prove motive or
Id. at 931 (quoting Wisconsin v. Mitchell, 508 U.S. 476, 489
(1993)). The Fourth Circuit pointed out that service members
subject to proceedings under the statement presumption have, in the
past, “successfully demonstrated that they lack a propensity or
intent to engage in homosexual acts.” Id. at 932. The Fourth
Circuit relied on opinions from two district courts to demonstrate
that some service members had successfully rebutted the presumption
of propensity. See Richenberg v. Perry, 909 F. Supp. 1303, 1313
(D. Neb. 1995) (noting that seven service members have successfully
rebutted the presumption but not describing the evidence
presented), aff’d, 97 F.3d 256 (8th Cir. 1996); Able v. United
States, 880 F. Supp. 968, 976 (E.D.N.Y. 1995) (identifying three
instances where Navy members had been able to escape discharge, but
concluding that these instances were “obviously aberrations that
cannot be taken to show that the Act holds out any realistic
opportunity to rebut the presumption”), vacated, 88 F.3d 1280, 1298
(2d Cir. 1996) (rejecting the district court’s characterization of
these cases as “aberrations” and stating instead that “they
demonstrate that the admission of homosexual status does not
inevitably equate with a finding of propensity to engage in
Two circuits similarly held that the Act and its
implementing DoD Directives do not target mere status or speech,
but seek to identify and exclude those who are likely to engage in
homosexual acts. See Richenberg v. Perry, 97 F.3d 256, 263 (8th
Cir. 1996) (agreeing with Thomasson); Holmes v. Cal. Army Nat’l
Guard, 124 F.3d 1126, 1136 (9th Cir. 1997) (holding brevis that the
statement presumption does not violate the First Amendment because
the service members were discharged for their conduct and not for
In a thoughtful opinion, the Second Circuit in Able v.
United States, 88 F.3d 1280 (2d Cir. 1996), addressed a facial
challenge to the statement presumption claiming that it violated
the First Amendment. Assuming, without deciding, that separation
of a service member based on status alone would be
unconstitutional, id. at 1297 n.10, the Second Circuit discussed
whether the statement presumption was content-neutral or content-based. Id. at 1294-96. The court never opted for one label or the
other, holding instead that the statement presumption passed
constitutional muster under both standards. Id. at 1295-96. The
court emphasized that, under United States v. Salerno, 481 U.S.
739, 745 (1987), the plaintiffs failed to show that “no matter how
the Act [was] read, it punish[ed] status not conduct.” Able, 88
F.3d at 1297. It reasoned:
Contrary to the district court, we do not
believe that, in the context of a facial
challenge, we may conclude that the Act
equates status with propensity. To be sure,
in most cases a member who admits to a
homosexual orientation will eventually be
separated from the armed forces. But that is
because the evidentiary value of the admission
is strongly linked to what it is used to
prove: a likelihood of engaging in homosexual
acts. The plaintiffs cannot prove and the
district court cannot credibly maintain that
there are no instances in which a person will
be retained, despite admitting to a homosexual
status, because there is no likelihood that he
will engage in such acts. The Directives
promulgated by the DoD in accordance with the
Act specifically contemplate that such an
event may occur. See DoD Directive No.
1332.14, encl. 3, pt. 1, at H.1.b(2).
Id. at 1298.
As the Supreme Court has held, when it is not clear
whether a restriction is content-based or content-neutral, the
controlling consideration is the governmental purpose in enacting
the legislation. Renton, 475 U.S. at 48; see also Ward v. Rock
Against Racism, 491 U.S. 781, 791 (1989). Here, the government
insists that the purpose of the Act is to target conduct, not
status, and points to DoD Directives that limit the Act to only
those who engage in or are likely to engage in homosexual conduct.
See DoD Directive No. 1332.14 ¶ E2.1.10 (defining “propensity to
engage in homosexual acts” to mean “more than an abstract
preference or desire to engage in homosexual acts; it indicates a
likelihood that a person engages in or will engage in homosexual
acts”) (emphasis added); see also id. at ¶ E3.A126.96.36.199.2.2 (same).
In response, the plaintiffs point to the plain terms of the
statute, and also to a regulation that states that the statement
presumption encompasses “[l]anguage or behavior that a reasonable
person would believe was intended to convey the statement that a
person engages in, attempts to engage in, or has a propensity to
engage in homosexual acts.” Id. at ¶ E2.1.16. According to
plaintiffs, given the vagueness of the term “propensity,” the
statement presumption can be interpreted to reach expressions of
mere homosexual status.
While the question is close, I conclude that the
statement presumption is better viewed as content-neutral because
its primary purpose, as set forth by the government, is to target
conduct, not speech. But see Thomasson, 80 F.3d at 934 (Luttig,
J., concurring) (agreeing with plaintiff that the purpose of
Congress in passing the Act was to mandate exclusion of all known
homosexuals based on their orientation or status “regardless of
whether they have actually engaged in homosexual conduct or are
likely to engage in any such conduct”).
Thus, under the standard that applies to content-neutral
restrictions on speech, the critical remaining inquiries are “(1)
whether the statement presumption furthers a substantial
governmental interest, and (2) whether the statement presumption
restricts the plaintiffs’ speech no more than is essential.” Able,
88 F.3d at 1295 (emphasis added). For the reasons stated by the
majority opinion with respect to the plaintiffs’ other
constitutional claims, the answer to the first of these inquiries
is “yes.” Accordingly, I now turn to the question of whether the
statement presumption, as applied, is overly restrictive of the
3. Dead Letter
Undaunted by pre-Lawrence case law, the plaintiffs, who
all admit they are homosexual within the meaning of Section
argue that the statement presumption burdens speech
more than is essential because, as applied, it is “functionally
impossible” to rebut the presumption short of recanting one’s
status. As such, plaintiffs allege that the statement presumption
punishes service members who speak about their constitutionally
protected homosexual status by requiring their discharge.
The government disagrees with plaintiffs’ dead letter
theory that the statement presumption is impossible to rebut in
practice. The government points out that, although the Act broadly
defines homosexual conduct to include a “propensity to engage in”
homosexual conduct, 10 U.S.C. § 654(f)(1), the implementing DoD
Directives narrowly interpret “propensity to engage in” homosexual
conduct to mean “more than an abstract preference or desire to
engage in homosexual acts; it indicates a likelihood that a person
engages in or will engage in homosexual acts.” DoD Directive No.
1332.14 ¶ E2.1.10 (defining “propensity”) (emphasis added); see
also id. at ¶ E3.A188.8.131.52.2.2 (same). Accordingly, in the
government’s view, because a service member’s personal definition
of “homosexuality” may not coincide with the Act’s definition, a
service member may be able to successfully rebut the statement
presumption if he can show that his statement “I am gay” is not
indicative of a likelihood that the he will engage in proscribed
As several courts have pointed out, the line between
“propensity” and “orientation” is razor-thin at best. See, e.g.,
Able, 880 F. Supp. at 975 (characterizing the distinction between
“orientation” and “propensity” as “Orwellian”); Thomasson, 80 F.3d
at 941-42 n.8 (Luttig, J., concurring) (“I do not know what
homosexual orientation is, if it is not the propensity to commit
homosexual acts; indeed, I do not understand how one even knows
that he has a homosexual orientation except by realizing that he
has a propensity toward the commission of homosexual acts.”).
Emphasizing that “propensity” sweeps in everyone who is gay,
plaintiffs allege that, in practice, gay and lesbian service
members are routinely discharged despite evidence that there is no
likelihood that they will engage in proscribed homosexual conduct
while they are in military service. Accordingly, plaintiffs
contend that any honest admission of a gay or lesbian service
member’s sexual orientation results in discharge.
In my view, if the Act were applied to punish statements
about one’s status as a homosexual, it would constitute a content-based speech restriction subject to strict scrutiny. See Meinhold
v. U.S. Dep’t of Def., 34 F.3d 1469, 1476-80 (9th Cir. 1994) (in an
equal protection challenge to the military’s pre-“Don’t Ask, Don’t
Tell” homosexuality policy, construing the policy as only applying
to conduct in order to avoid constitutional concerns that would
arise if the policy punished service members for “mere propensity”
or status alone) (quoting Powell v. Texas, 392 U.S. 514, 543-44
(1968) (Black, J., concurring)). Indeed, as Lawrence articulates,
“Liberty presumes an autonomy of self that includes freedom of
thought, belief, expression, and certain intimate conduct.”
Lawrence v. Texas, 539 U.S. 558, 562 (2003); see also Whitney v.
California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring)
(stating that the founders “believed that freedom to think as you
will and to speak as you think are means indispensable to the
discovery and spread of political truth”).
It is telling that the government does not contend it has
a substantial interest, let alone a compelling one, in separating
a service member because of his or her status as a homosexual.
Rather, the government protests that it is not punishing homosexual
status, and insists that it has an interest only in identifying and
proscribing homosexual conduct to further its substantial interest
in morale, good order and discipline, and unit cohesion.
As proof that the statement presumption is in fact
rebuttable, the government highlights opinions, in particular Able
and Holmes, that have found that the statement presumption has been
successfully rebutted in the past. See Able, 88 F.3d at 1298
(“[A]s the government represented at oral argument without
contradiction, in seven cases (out of forty-three attempts),
service members have been able to rebut the presumption created by
their admission and have been retained.”); Holmes, 124 F.3d at 1136
(pointing to several cases, including one where a “female Naval
officer admitted to her homosexuality but submitted a statement, in
which she stated, inter alia, that she understands the rules
against homosexual conduct and intended to obey those rules.”).
However, in Able, the fact that some service members were
successful was held to be sufficient to defeat a facial assault on
the statute under the Salerno standard. See Able, 88 F.3d at 1297-98 (“Because plaintiffs have mounted a facial challenge to the Act,
they must show that, no matter how the Act is read, it punishes
status and not conduct.”) (citing Salerno, 481 U.S. at 745). Here,
in contrast to Able, plaintiffs mount an as-applied challenge by
alleging the presumption is now functionally impossible to rebut
short of recanting. Although the government points to cases of the
statement presumption being successfully rebutted, the cherry-picked examples are all well over twelve years old: In fact, some
11,000 service members have been discharged under the Act since
1993. On a motion to dismiss, a court “must accept as true all the
factual allegations in the complaint,” Leatherman v. Tarrant
County Narcotics Intelligence & Coordination Unit, 507 U.S. 163,
164 (1993); accord Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955,
1965 (a court must assume “that all the allegations in the
complaint are true (even if doubtful in fact)”), and a court must
make all reasonable inferences in the plaintiffs’ favor. Clark v.
Boscher, 514 F.3d 107, 112 (1st Cir. 2008).
Finally, the government argues that even if the statement
presumption is a dead letter in practice, any misapplication of the
presumption can be cured by the availability of administrative
review. It may be true that an individual service member may
prevail in rebutting the presumption on administrative review short
of recanting his status, by stating, for example, that he will
refrain from engaging in prohibited homosexual conduct. However,
the availability of an administrative remedy does not defeat a
First Amendment claim that the government is systematically
applying the Act in such a way that it unconstitutionally burdens
protected speech. See Califano v. Sanders, 430 U.S. 99, 109 (1977)
(“Constitutional questions obviously are unsuited to resolution in
administrative hearing procedures.”); see also Able, 88 F.3d at
1289 (“[B]ecause none of the administrative boards before which the
plaintiffs would appear has the power to declare the Act
unconstitutional, there is no realistic possibility that such
proceedings would result in anything other than the plaintiffs’
Accordingly, when all reasonable inferences are drawn in
their favor, the plaintiffs have alleged a viable cause of action
that the burden placed by the government on gay and lesbian service
members’ speech is “greater than is essential” to the government’s
interest in preventing the occurrence of homosexual acts in the
Plaintiffs also argue that the statement presumption is
an unconstitutional allocation of the burden of proof, which chills
a whole range of protected expression.
The majority treats the
plaintiffs’ chill claim as an “overbreadth” claim, although only
Appellant Pietrangelo describes the claim in those terms. This
designation by the majority is understandable because plaintiffs
are unclear as to whether this is a facial challenge, an as-applied
challenge, or both.
Because the plaintiffs have not expressly raised a facial
challenge to the statement presumption, I will treat the claim as
an as-applied challenge. The majority is correct to state that
“[n]one of the plaintiffs contend that they were separated from
service because they participated in expressive activities.” Op.
at 41-42 n.13. However, the core of the plaintiffs’ as-applied
challenge is that they were chilled from engaging in protected
speech, not that they were punished for engaging in such speech.
As a preliminary matter, the government has argued that
this allocation-of-proof challenge to the statement presumption was
not raised before the district court, and is therefore waived.
While the plaintiffs raised a chilling argument before the district
court, they did not raise this precise argument. However, in a
First Amendment case, “[o]nce a federal claim is properly
presented, a party can make any argument in support of that claim;
parties are not limited to the precise arguments they made below.”
See Lebron v. Nat’l R.R. Passenger Corp., 513 U.S. 374, 379 (1995)
(internal quotation marks omitted). Accordingly, in my view, in
this case involving a First Amendment challenge, plaintiffs’
argument that the statement presumption violates the First
Amendment because it requires service members to rebut the
presumption should not be deemed waived.
The government contends that the DoD Directives and
Issuances specifically carve out protected speech, quoting
Directives and Issuances that show that the presumption is not
triggered by rumors, suspicions, or capricious claims of others,
see DoD Directive No. 1332.14 ¶ E3.A184.108.40.206, or by going to a gay
or lesbian bar, possessing or reading homosexual publications,
associating with gays and lesbians, or marching in a gay rights
parade in civilian clothes. See id. ¶ E3.A220.127.116.11.4; see also S.
Rep. No. 103-112, at 292 (1993) (“What the policy recognizes is
that heterosexuals, as well as homosexuals, might march in gay
rights parades, frequent a gay bar, [and] read gay literature.”).
Citing Parker v. Levy, 417 U.S. 733 (1974), the
government argues that the military’s need for obedience and
necessity “may render permissible within the military that which
would be constitutionally impermissible outside it.” 417 U.S. at
758 (affording deference to regulations applied to an Army doctor
who protested Vietnam War and refused to obey orders on base). As
the Supreme Court has held, its “review of military regulations
challenged on First Amendment grounds is far more deferential than
constitutional review of similar laws or regulations designed for
civilian society.” Goldman v. Weinberger, 475 U.S. 503, 507
(1986). Moreover, Congress is given the “highest deference” when
legislating in the realm of military affairs. Loving v. United
States, 517 U.S. 748, 768 (1996); see also Solorio v. United
States, 483 U.S. 435, 447 (1987) (noting that Congress has “primary
responsibility for the delicate task of balancing the rights of
servicemen against the needs of the military”).
While judicial deference is “at its apogee” when
legislative action regarding military affairs is challenged,
“deference does not mean abdication.” Rostker v. Goldberg, 453
U.S. 57, 70 (1981) (“None of this is to say that Congress is free
to disregard the Constitution when it acts in the area of military
affairs.”). The Supreme Court has struck down restrictions on
speech imposed by Congress on First Amendment grounds, even when
military matters were involved. See Schacht v. United States, 398
U.S. 58, 60, 62-63 (1970) (striking down a statutory restriction
that allowed the wearing of military uniforms by actors in civilian
theatrical productions only when such productions would not “tend
to discredit” the military).
The Supreme Court has afforded its strongest deference to
the military for speech in military settings. See, e.g., Goldman,
475 U.S. at 507-10 (affording deference to regulation that
prevented soldiers from wearing yarmulkes while on duty and in
uniform); Brown v. Glines, 444 U.S. 348, 354-55 (1980) (affording
deference to regulation that prevented soldiers from circulating
petitions on air force bases). Even then, the deference is not
absolute. In Brown v. Glines, for example, the Court held that the
limitations on on-base petitions “restrict speech no more than is
reasonably necessary” because it allowed for alternative channels
of protest, such as through the United States mail, and the
regulations “specifically prevent commanders from halting the
distribution of materials that merely criticize the Government or
its policies.” 444 U.S. at 355.
The most troubling aspect of the Act’s statement
presumption is that it covers purely private speech, and public
speech made off base and off duty. By its own terms, the Act is
“pervasive” in scope, applies “24 hours [a] day,” and applies even
to speech made “off base” and/or “off duty.” See 10 U.S.C. §§
654(a)(9)-(11). Thus, as alleged in the complaint, the Act
required the discharge of some of the plaintiffs based upon
strictly private speech, such as confiding in a friend or words
within a letter from a friend or family member. In addition, the
amicus brief submitted by the constitutional law professors cites
the example of an Arizona state representative who spoke about his
homosexuality on the floor of the legislature. After the military
discovered the speech through an anonymous complaint and initiated
discharge proceedings against the representative, he negotiated a
voluntary separation from the Army. See generally Tobias
Barrington Wolff, Political Representation and Accountability Under
Don’t Ask, Don’t Tell, 89 Iowa L. Rev. 1633, 1644-50 (2004)
(providing examples of the Act’s statement presumption being
applied to conversations with family members, sessions with
chaplains and psychotherapists, and certain public statements).
Plaintiffs argue that the statement presumption, as
applied, chills speech because a service member will fear
triggering a discharge proceeding, regardless of whether he or she
could successfully rebut the presumption. As the Supreme Court
explained when striking down a statement presumption in another
context, “[t]he man who knows that he must bring forth proof and
persuade another of the lawfulness of his conduct necessarily must
steer far wider of the unlawful zone than if the State must bear
these burdens.” Speiser v. Randall, 357 U.S. 513, 526 (1958) (in
a due process challenge, invalidating a statute that conditioned a
veteran’s tax exemption on the signing of an oath disavowing the
violent overthrow of the government and that established a
rebuttable presumption against eligibility for the exemption if one
failed to sign the oath); see also Smith v. California, 361 U.S.
147, 150-51 (1939) (explaining that “the allocation of the burden
of proof,” like many other legal devices that ordinarily pass
constitutional muster, “cannot be applied in settings where they
have the collateral effect of inhibiting the freedom of expression,
by making the individual the more reluctant to use it.”). As
alleged, the Act’s statement presumption chills individual service
members from discussing homosexuality both privately and publicly
even when they have no intent to engage in prohibited homosexual
In conclusion, the plaintiffs’ burden is a tough one in
light of the strong deference owed to Congress and the military
seeking to protect unit cohesion. Yet, when all reasonable
inferences are drawn in their favor, plaintiffs have made
sufficient allegations that the burden that the statement
presumption places on speech is greater than is essential,
particularly in nonmilitary settings off base and off duty. Thus,
I believe that the motion to dismiss should be denied. Because the
majority holds otherwise, I respectfully dissent in this very
 ' *Pursuant to Rule 43(c)(2) of the Federal Rules of Appellate
Procedure, Robert M. Gates is automatically substituted for his
predecessor as Secretary of Defense, Donald H. Rumsfeld.
 ' **Of the District of Massachusetts, sitting by designation.
 ' The 9th Circuit recently decided Witt v. Dep't of the Air Force,
2008 U.S. App. LEXIS 10794, at *1 (9th Cir. May 21, 2008). In
Witt, the plaintiff argued that the Act violated substantive and
procedural due process and the Equal Protection Clause. See Id. at
*1-2. The district court dismissed the suit under Fed. R. Civ. P.
12(b)(6). Id. at 2. The 9th Circuit reversed the district court's
as applied due process rulings, remanding for further proceedings,
and affirmed the court's dismissal of the plaintiff's Equal
Protection claim. We agree with much of the reasoning set forth in
that opinion but also part ways with the 9th Circuit's approach in
some significant respects. Most importantly, for reasons that will
become apparent, we resolve differently the as applied substantive
due process claim brought in this case. We also note that the case
before us includes facial challenges to the Act and a First
 'Homosexual act means "any bodily contact, actively undertaken or
passively permitted, between members of the same sex for the
purpose of satisfying sexual desire and any bodily contact which a
reasonable person would understand to demonstrate a propensity or
intent to engage in [the homosexual act previously described]." 10
U.S.C. § 654 (f)(3).
 'Where no protected liberty interest is implicated, substantive due
process challenges are reviewed under the rational basis standard.
See Medeiros v. Vincent, 431 F.3d 25, 33 (1st Cir. 2005). Under
this standard, a statute passes constitutional muster so long as
the law is rationally related to a legitimate governmental
interest. Heller v. Doe, 509 U.S. 312, 320 (1993).
 'The statute defined deviate sexual conduct as "any contact between
any part of the genitals of one person and the mouth or anus of
another person; or the penetration of the genitals or the anus of
another person with an object." Tex. Penal Code Ann. §
 'Sylvester v. Fogley, 465 F.3d 851, 858 (8th Cir. 2006); Muth v.
Frank, 412 F.3d 808, 818 (7th Cir. 2005); Williams v. Att'y Gen. of
Ala., 378 F.3d 1232, 1238 (11th Cir. 2004); Lofton v. Sec'y of
Dept. of Children & Family Servs., 358 F.3d 804 (11th Cir. 2004);
Witt v. U.S. Dept. of Air Force, 444 F. Supp. 2d 1138, 1143 (W.D.
Wash. 2006); United States v. Extreme Assocs., Inc., 352 F. Supp.
2d 578, 591 (W.D. Pa. 2005); Conaway v. Deane, 401 Md. 219, 310
(Md. 2007); State v. Lowe, 861 N.E.2d 512, 517 (Ohio 2007); (Ex
parte Morales, 212 S.W.3d 483, 493 (Tex. App. 2006); State v.
Limon, 122 P.3d 22, 29 (Kan. 2005); Martin v. Ziherl, 607 S.E.2d
367, 370 (Va. 2005); State v. Clinkenbeard, 123 P.3d 872, 878
(Wash. App. 2005).
 'Williams, 378 F.3d at 1252 (Barkett, J., dissenting); see Fields
v. Palmdale Sch. Dist., 271 F. Supp. 2d 1217, 1221 (C.D. Cal. 2003)
(including Lawrence within citations of precedent establishing
fundamental rights); Doe v. Miller, 298 F. Supp. 2d 844, 871 (S.D.
Iowa 2004), rev'd on other grounds, 405 F.3d 700 (8th Cir. 2005)
(same); Hudson Valley Black Press v. IRS, 307 F. Supp. 2d 543, 548
(S.D.N.Y. 2004) (same); see also Donald H.J. Hermann, Pulling the
Fig Leaf Off the Right of Privacy: Sex and the Constitution,54
DePaul L. Rev. 909, 969 (2005); Laurence H. Tribe, Lawrence v.
Texas: The Fundamental Right that Dare Not Speak Its Name, 117
Harv. L. Rev. 1893, 1917 (2004).
 'United States v. Marcum, 60 M.J. 198 (U.S. Armed Forces 2004);
Nancy C. Marcus, Beyond Romer and Lawrence: The Right to Privacy
Comes out of the Closet, 15 Colum. J. Gender & L. 355 (2006); John
G. Culhane, Writing on, Around and Through Lawrence v. Texas, 38
Creighton L. Rev. 493 (2005); Jerald A. Sharum, Comment,
Controlling Conduct: The Emerging Protection of Sodomy in the
Military, 69 Alb. L. Rev. 1195, 1202 (2006); Donald L. Beschle,
Lawrence Beyond Gay Rights: Taking the Rationality Requirement for
Justifying Criminal Statutes Seriously, 53 Drake L. Rev. 231, 276
 'The district court did not reach the merits of the plaintiffs' as-applied due process challenge to the Act. It concluded that,
although the plaintiffs tried to plead as-applied challenges, the
complaint failed to identify facts showing that the Act was
"misapplied" in certain cases. We view differently the necessary
factual predicate for an as-applied constitutional challenge to the
Act. A claim that the Act was "misapplied" in a particular case is
actionable, if at all, under the Administrative Procedures Act.
See Richenberg v. Perry, 97 F.3d 256, 263 (8th Cir. 1996) (assuming
that a review of separation decision under the Act is reviewable
under the APA). But this is not the plaintiffs' claim. The
plaintiffs allege that, even though the Act was properly
administered according to its terms to separate each of them from
service, the Act cannot be constitutionally applied in their
particular cases because the application unconstitutionally
infringes on their Lawrence interest. As-applied challenges "'are
the basic building blocks of constitutional adjudication'" because
they relieve the court of having "to consider every conceivable
situation which might possibly arise in the application of complex
and comprehensive legislation." Carhart, 127 S. Ct. at 1639. A
plaintiff asserts an as-applied challenge by claiming that a
statute is unconstitutional as-applied to his or her particular
conduct, even though the statute may be valid as to other parties.
See Daggett v. Comm'n of Gov. Ethics & Election Practices, 205 F.3d
445, 472 (1st Cir. 2000). The plaintiffs have pleaded classic as-applied challenges here because they claim that the Act is
unconstitutional as applied to them, even though the Act may be
constitutional as applied to others.
 'Other examples of the deferential approach the Court has taken
when analyzing constitutional challenges in the military context
include: Goldman v. Weinberger, 475 U.S. 503, 508 (1986) (free
exercise of religion); Chappell v. Wallace, 462 U.S. 296, 300-05
(1983) (racial discrimination); Brown v. Glines, 444 U.S. 348, 357-60 (1980) (free expression); Middendorf v. Henry, 425 U.S. 25, 43
(1976) (right to counsel in summary court-martial proceeding).
Solorio, 483 U.S. at 448 (collecting cases).
 'In Witt, the 9th Circuit resolved an as-applied, post-Lawrence
substantive due process challenge to the Act differently then we do
here. 2008 U.S. App. LEXIS 10794, at *36. The 9th Circuit relied
on the Supreme Court’s pre-Lawrence decision in Sell as a
touchstone for its due process inquiry. Id. At 29-30. Although we
find Sell instructive in the sense that it illustrates the Supreme
Court’s application of an intermediate level of scrutiny, we do not
find Sell especially helpful in analyzing this statute regulating
 'The Fifth Amendment does not contain an equal protection clause
but the due process clause has been interpreted to include an equal
protection component. See Bolling v. Sharpe, 347 U.S. 497, 499
 'The plaintiffs acknowledge that a conclusion that the Act survives
rational basis review defeats their facial and as-applied equal
 'For the first time on appeal, the plaintiffs contend that a wide
variety of expressive activities could trigger discharge
proceedings. They argue, "A service member might wave a rainbow
flag or wear a pink triangle, or he might state that he opposes
'Don't Ask, Don't Tell.' Under § 654 . . . these possibilities and
more could force the service member -- whether straight or gay --
into discharge proceedings where he must prove that he has no
propensity to engage in homosexual conduct." None of the
plaintiffs contend that they were separated from service because
they participated in expressive activities. Moreover, the explicit
terms of the Act do not indicate that such activities could trigger
separation proceedings and the government has stipulated they do
not. DOD Directive 1332.414 § E3.A4; DOD Instruction 1332.40 § E8.
In any event, we decline to reach this newly raised overbreadth
argument on appeal. See Brown v. Hot, Sexy & Safer Products, Inc.,
68 F.3d 525, 530 (1st Cir. 1995) (stating that an appeal from a
motion to dismiss "is not an opportunity to conjure new arguments
not raised before the district court.").
 ' 10 U.S.C. § 654(b)(2) provides, in relevant part, that:
(b) A member of the armed forces shall be separated from
the armed forces . . . if one or more of the following
findings is made and approved . . .:
(2) That the member has stated that he or she is a
homosexual or bisexual, or words to that effect, unless
there is a further finding, made and approved in
accordance with procedures set forth in the regulations,
that the member has demonstrated that he or she is not a
person who engages in, attempts to engage in, has a
propensity to engage in, or intends to engage in
 ' A recent post-Lawrence challenge to the statute did not include
a First Amendment claim. See Witt v. Dep’t of the Air Force, No.
06-35644, 2008 WL 2120501 (9th Cir. May 21, 2008).
 ' As the majority correctly points out, “[e]ach plaintiff has
agreed that he or she is a person who ‘engages in, attempts to
engage in, has a propensity to engage in, or intends to engage in
homosexual acts,’” as defined under the Act. Yet this concession
by the plaintiffs does not end the matter because the plaintiffs
also argue that the Act’s definition of propensity improperly
includes homosexual status. Thus, I do not understand the
plaintiffs to be conceding that they could not have rebutted the
statement presumption under § 654(b)(2) if, as the government
maintains in defending the Act, “propensity” was limited to a
likelihood of engaging in prohibited homosexual acts while a
 ' A group of constitutional law professors submitted an amicus
brief in support of this argument. The professors on the brief are
Akhil Reed Amar, Southmayd Professor of Law at Yale Law School; C.
Edwin Baker, Nicholas F. Gallicchio Professor of Law at the
University of Pennsylvania Law School; Erwin Chemerinsky, Alston &
Bird Professor of Law and Professor of Political Science at Duke
Law School; Owen M. Fiss, Sterling Professor of Law at Yale Law
School; Pamela S. Karlan, Kenneth and Harle Montgomery Professor of
Public Interest Law at Stanford Law School; Andrew Koppelman, John
Paul Stevens Professor of Law at Northwestern Law School; Kathleen
M. Sullivan, Stanley Morrison Professor of Law and Former Dean of
Stanford Law School; Laurence H. Tribe, Carl M. Loeb University
Professor at Harvard Law School; and Tobias Barrington Wolff,
Professor of Law at the University of Pennsylvania Law School.