When the evidence is the crime.

• Author: Goitein, Elizabeth

Holmes v. California Army National Guard, 124 F.3d 1126 (9th Cir. 1997).

With its recent decision in Holmes v. California Army National Guard,(1) the Ninth Circuit became the fourth federal appeals court to uphold the military's "don't ask/don't tell" policy.(2) In doing so, it closely followed the reasoning set out by Judge Wilkinson in Thomasson v. Perry(3) and echoed by Judge Loken in Richenberg v. Perry:(4) Homosexuals are not a suspect class for purposes of equal protection review;(5) the government has a legitimate interest in preserving military unit cohesion,(6) an interest that is served by the prohibition of homosexual conduct;(7) and dismissal for statements of homosexuality does not penalize speech, but rather the conduct of which that speech is probative evidence.(8)

Taken in the context of the other circuit courts' decisions, Holmes represents a disturbing trend: the courts' progression toward a more and more facile dismissal of gay servicemembers' First Amendment arguments. The Fourth and Second Circuits, the first to review the policy, devoted a moderate amount of space to the question of whether the policy's "don't tell" provision violates the First Amendment.(9) The Richenberg opinion, however, spent only one paragraph discussing the claim's merits and delegated the responsibility of a fuller explanation to a handful of cited cases.(10) The single paragraph Holmes offers(11) is even shorter than that in Richenberg, and Holmes cites to fewer precedents.

Yet it is far from the case that the courts have satisfactorily disposed of the relevant First Amendment questions. Even if the government's target is not speech, but the conduct evidenced by that speech, the First Amendment requires further inquiry--a point that only one of the circuit courts has articulated in the context of the military's policy.(12) The reviewing court must ascertain that the government's interest lies only in the nonspeech component of the speech act.(13) The Holmes court did not fulfill this constitutional obligation. Had it done so, it would have found that it is the expressive element of statements of homosexual orientation, rather than their evidentiary value, that underlies the government's interest in "don't tell."

I

In Holmes, the Ninth Circuit consolidated two cases on appeal, those of Lieutenant Richard P. Watson and First Lieutenant Charles Andrew Holmes. Each man had been discharged from military service after he offered information about his homosexuality. Each was discharged pursuant to 10 U.S.C. [Sections] 654(b)(2), which provides for dismissal of a servicemember who states that he is gay, "unless there is a further finding... that the member has demonstrated that he or she is not a person who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts."(14) Both Watson and Holmes attended hearings in which they were afforded the opportunity to rebut the presumption that they engaged in homosexual conduct. Instead, they used the hearings to present evidence of their excellent records of military service. Subsequently, they were discharged.

Watson and Holmes filed complaints alleging that the policy violated their rights to equal protection under the Fifth Amendment and to freedom of speech under the First Amendment. The United States District Court for the Western District of Washington granted summary judgment for the Navy in Watson's case.(15) It reasoned that the prohibition of homosexual conduct was constitutional(16) and that the discharge was based on likelihood of homosexual conduct rather than expression of homosexual orientation.(17) The United States District Court for the Northern District of California, however, granted summary judgment to Holmes with respect to his equal protection and First Amendment claims, concluding that [Sections] 654(b)(2) punishes speech and status rather than conduct and is thus a violation of the First Amendment.(18)

In Holmes, the Ninth Circuit reversed the decision pertaining to Holmes and upheld the decision pertaining to Watson.(19) Applying rational basis review, the court rejected the equal protection challenge...