Newsgroups: soc.motss
From: [email protected] (Emily Rizzo)
Subject: Text of Meinhold Decision
Message-ID: <[email protected]>
Organization: New York University
Date: Mon, 8 Feb 1993 21:37:35 GMT
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The following post appeared on GAYNET:

------------------------------
Date: Fri, 5 Feb 93 12:49 EST
From: [email protected]
Subject: Meinhold decision - for those in

               VOLKER KEITH MEINHOLD, Plaintiff,
                              v.
   UNITED STATES DEPARTMENT OF DEFENSE, et al.  Defendants.
                   No. CV 92-6044 TJH (JRX).
                 United States District Court,
                       C.D. California.
                        Jan. 29, 1993.
                          BACKGROUND
Judge HATTER
     In 1980, at the age of 17, Volker Keith Meinhold enlisted
in the United States Navy. Over the last twelve years, Meinhold has
established a reputation for being a dedicated and disciplined
sailor.  As such, he earned his position as a Naval airborne sonar
analyst and instructor.  He has consistently received outstanding
evaluations and has never been the subject of disciplinary action.
    In 1992, Meinhold was discharged from the Navy and deprived of
his career after he announced on an ABC television news program
that he was gay.  Meinhold was discharged not because he engaged in
prohibited conduct, but because he labeled himself as gay.
Meinhold filed this action in response to his discharge.
Previously, this Court issued a preliminary injunction ordering the
Navy to reinstate Meinhold pending a final resolution of this case.
    The Court, now, decides this case on the merits based on the
cross motions for summary judgment.  The parties are in agreement
on the relevant facts, and the Court finds that there are no
genuine issues of material fact to preclude the rendering of a
decision based on the law of the land.  Fed.R.Civ.P. 56(c). While
Meinhold, also, attacks the administrative discharge procedures
used by the Navy, the key issue presented to the Court is whether
the United States Department of Defense may ban, from the armed
forces of the United States, gays and lesbians who do not engage in
prohibited conduct.
                          DISCUSSION
    Exhaustion of Administrative Remedies
    While it is clear to this Court that were numerous procedural
errors committed by the board of Naval officers convened for
Meinhold's administrative discharge hearing, it is also undisputed
that a new hearing would result in the same decision.  Namely,
Meinhold would, again, be discharged based on his status as a
homosexual.  Thus, requiring Meinhold to exhaust his intraservice
remedies would be futile.  See, Watkins v. U.S. Army, 875 F.2d 699,
705 (9th Cir.1989) (en banc ), cert. denied, --- U,S, ---, 111
S.Ct. 384 (1990). Therefore, this Court will proceed to the merits
of Meinhold's claims.
    Equal Protection
    To survive Meinhold's claim that the Department of Defense's
policy banning gays and lesbians based merely on status, and not
conduct, violates the Equal Protection clause of the Fifth
Amendment, the Department of Defense must establish, through a
factual record, that its policy is rationally related to its
permissible goals.  Pruitt v. Cheney, 963 F.2d 1160, 1166-67 (9th
Cir.1991), cert. denied, --- U.S. ---, 113 S.Ct. 655 (1992).  In
determining whether the policy is rationally related, the Court
cannot merely defer to the "military judgment" as the rationale for
the policy--the Court must consider the factual basis underlying
the "military judgment."  Pruitt, 963 F.2d at 1166-67.
    The Navy contends that its ban against gays and lesbians is
rationally related to its goals of maintaining discipline, good
order and morale;  fostering mutual trust and confidence among
servicemembers;  the need to recruit and retain servicemembers;
and maintaining public acceptability of the Navy. Navy Military
Personal Manual 3630400(1).  Security concerns, once generally
raised by supporters of the ban, however, are no longer a
rationale, since gays and lesbians are not a security risk to the
military, according to former Secretary of Defense Richard Cheney.
Meet the Press (NBC television broadcast, Dec. 6, 1992).
     The factual record placed before the Court by the
Department of Defense is sparse.  The Navy rests solely on a report
produced by the United States General Accounting Office in June of
1992.  General Accounting Office, Defense Force Management:
Statistics Related to DoD's Policy on Homosexuality (1992).
However, that report concludes nothing more than what the
Department of Justice has already told the Court--the rationale for
the policy banning gays and lesbians from the military is "not
capable of being determined authoritatively by scientific means or
proven studies."  Defense Force Management, p. 69.  The GAO reached
the conclusion that the policy is based on "military judgment
which is  inherently subjective in nature  and not susceptible to
scientific or sociological analysis.  Defense Force Management, p.
56.  However, the military has, indeed, obtained scientific and
sociological analyses upon which to base its decisions regarding
gays and lesbians in the military.
    In 1957, the Secretary of the Navy commissioned a report
regarding the revision of its policies, procedures and directives
dealing with homosexuals. Report of the Board of Appointed to
Prepare and Submit Recommendations to the Secretary of the Navy for
the Revision of Policies, Procedures and Directives Dealing with
Homosexuality (Mar. 15, 1957)  "Crittenden Report" .  The
Crittenden Report stated that there was no "visible supporting data
to support the conclusion that gays and lesbians  cannot
acceptably serve in the military."  Crittenden Report, p. 5. In
1976, the Chief of Naval Personnel stated that "no empirical proof
exists at this time  to support the Navy's contention that
homosexuality has an adverse effect upon the completion of the
military  mission."  Memorandum from Chief of Naval Personnel to
Judge Advocate General (Aug. 2, 1976).
    Moreover, in 1988, the Department of Defense commissioned a
study of homosexual veterans which concluded that "having a
same-gender or an opposite- gender orientation is unrelated to job
performance in the same way as being leftor right-handed."
Theodore R. Sarbin & Kenneth K. Eoyang, Nonconforming Sexual
Orientation and Military Suitability, p. 33 (1988).  In 1989,
another Department of Defensecommissioned study investigated the
suitability of gay men and lesbians for military service, and found
that "homosexuals more closely resemble those who successfully
adjust to military life than those who are discharged for
unsuitability ...  and that  homosexuals show pre-service
suitability-related adjustment that is as good or better than the
average heterosexual."  Michael A. McDaniel, Preservice Adjustment
of Homosexual and Heterosexual Military Accessions, p. 19 (1989).
    Further, Vice Admiral Joseph S. Donnell, the Commander of the
Surface Atlantic Fleet has stated that " e xperience has ... shown
that the stereotypical female homosexual in the Navy is
hardworking, career-orientated, willing to put in long hours on the
job and among the command's top professions."  Administrative
Message from Commander, naval Surface Fleet, Atlantic, to the Naval
Surface Fleet, Atlantic (July 2, 1990).
     Additionally, of all the countries in the North Atlantic
Treaty Organization  "NATO" , only the United States and Great
Britain ban gays and lesbians from their armed forces.  On October
27, 1992, Canada's military leaders rescinded Canada's policy of
banning gays and lesbians from the Canadian Forces, albeit as a
result of a court order.  In explaining why the ban was rescinded,
General A.J.G.D. de Chastelain, Canada's Chief of the Defense
Staff, reported that the military leadership was "satisfied that
the policy no longer serves the best interests of the CF and its
members." National Defense News Release (Oct. 27, 1992).  On
November 23, 1992, Australia lifted its ban against gays and
lesbians in the Australian Defense Force. Prime Minister P.J.
Keating, Australian Defense Force Policy on Homosexuals (Nov. 23,
1992).  In support of lifting the ban, Australia's Prime Minister
stated that "the decision will not have the adverse effect on
morale and cohesion predicted by some."  Id.
    Finally, Dr. Lawrence J. Korb, the former Assistant Secretary
of Defense who was responsible for approving and implementing the
present policy banning gays and lesbians, has declared "that there
is no longer any justification for the armed services' current ban
on homosexuals serving in the military ...  that  each of the
justifications offered in support of this policy is without factual
foundation ...  and, therefore,  there is no longer any rational
basis  for it ."  Meinhold's Exhibit 12, p. 874, PP 4 & 7.
    As the Ninth Circuit has held, so, too, does this Court hold
that defense to "military judgment," in the absence of a factual
basis for such judgment, would result in the denial of judicial
review.  Pruitt, 963 F.2d at 1166-67.
    Gays and lesbians have served, and continue to serve, the
United States military with honor, pride, dignity and loyalty.  The
Department of Defense's justifications for its policy banning gays
and lesbians from military service are based on cultural myths and
false stereotypes.  These justifications are baseless and very
similar to the reasons offered to keep the military racially
segregated in the 1940's.  FN*
    Gays and lesbians should not be banned from serving our
country in the absence of conduct which interferes with the
military mission.  Hopefully, our military leaders will come to
realize that " w e are not an assimilative, homogeneous society,
but a facilitative, pluralistic one, in which we must be willing to
abide someone else's unfamiliar or even repellant practice because
the same tolerant impulse protects our own idiosyncracies."
Michael H. v. Gerald D., 491 U.S. 110, 141, 109 S.Ct. 2333, 2351,
105 L.Ed.2d 91, 117 (1989) (Brennan, J., dissenting).
    Therefore, Meinhold's motion for summary judgment is granted,
and the Department of Defense's motion for summary judgment is
denied.  The Department of Defense is permanently enjoined from
discharging or denying enlistment to any person based on sexual
orientation in the absence of sexual conduct which interferes with
the military mission of the armed forces of the United States.
Meinhold's discharge from the United States Navy is rescinded.
     It is so Ordered.
    FN* For a particularly insightful and thorough analysis of the
Department of Defense's ban against gays and lesbians, see Kurt D.
Hermansen, Comment, Analyzing the Military's Justification for its
Exclusionary Policy:  Fifty Years Without a Rational Basis,
Loy.L.A.L.Rev. 151 (1992).
C.D.Cal.,1993.
    VOLKER KEITH MEINHOLD, Plaintiff, v. UNITED STATES DEPARTMENT
OF DEFENSE, et al.  Defendants.

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