When the evidence is the crime. - Term paper, research paper & custom essay writing service

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When the evidence is the crime.

by Elizabeth Goitein

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."

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, finding that the government had a legitimate state interest (i.e., the maintenance of cohesion among troops)(20) and that its chosen means were rationally related to that interest.(21) The court rejected the argument that a mere statement of homosexual status is not rationally related to the interest in prohibiting homosexual conduct, finding that a declaration of homosexual orientation indicates a likely propensity toward homosexual conduct.(22) The court disposed of the First Amendment claim on similar grounds: It held that the "don't ask/don't tell" policy targets not the speech itself, but the conduct of which the speech is probative evidence, and that the First Amendment is therefore "not implicated."(23)

Many have questioned the application of the speech-as-evidence framework on the grounds that one cannot infer homosexual conduct from the words "I am gay."(24) This argument does not attack the use of speech as evidence generally--clearly, oral admissions of guilt may be used as evidence in court--but denies that a serviceperson's statement of homosexual orientation has any bearing on whether he or she will violate the military's prohibition on homosexual conduct. This argument fails largely because of the military's definition of homosexual conduct, a definition that includes the "propensity" to engage in homosexual acts.(25) It is a potentially problematic definition; in other (criminal) contexts, the Supreme Court has held it unconstitutional for the government to penalize someone criminally for her status absent identifiable criminal acts.(26) But as long as homosexual conduct is thus defined, it seems reasonable to treat a statement of homosexual orientation as bearing on the likelihood of such conduct.

Nonetheless, accepting that statements of homosexual orientation bear on the likelihood of homosexual conduct does not mean that the First Amendment is "not implicated." Wayte v. United States,(27) for example--a case cited for its speech-as-evidence rationale by all three of the other circuit courts that examined the military's policy(28)--addressed the First Amendment in detail. In Wayte, the government pursued a "passive enforcement" policy in prosecuting people who failed to register for the Selective Service: It prosecuted only those who communicated their intention not to register. Although the Court eventually determined, in part on a speech-as-evidence basis,(29) that this practice was permissible, it did not make this determination summarily. Instead, it recognized that any government practice that claims to target the nonspeech aspects of an expressive act must pass the test articulated in United States v. O'Brien.(30) This is equally true in the context of [Sections] 654(b)(2). The statement "I am gay" may have nonspeech value as evidence of conduct, but it clearly has speech value as well, and so the O'Brien test must be applied.

The premise of the O'Brien test is that "a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms."(31) The four-prong test the Court used to implement this standard contains the requirement that the governmental interest involved be "unrelated to the suppression of free expression."(32) At a minimum, then, the government must have an "important or substantial" interest that would remain even if the combined speech/nonspeech act were stripped of its expressive elements. In many cases, this inquiry will be an exercise in judicial imagination, since acts like burning a draft card (the act at issue in O'Brien) cannot be accomplished without an expressive component. But a court can still assert, as the O'Brien Court did, that the government would have an interest in preventing the destruction of a draft card even if this were a wholly noncommunicative act.(33) Similarly, in Wayte, the government would have an interest in the efficient enforcement of the registration requirement even if refusal to register did not communicate a point of view.

Would the government have a substantial interest in penalizing expressions of homosexual orientation if these expressions were stripped of their communicative element? In other words, would its interest in the evidence remain if the evidence were not expressive in nature? The answer, of course, depends largely on what the government's interest in the evidentiary component is. Because the Holmes court did not subject [Sections] 654(b)(2) to the O'Brien test, it did not require the government to state its interest in the evidentiary statements. It is only logical, however, to assume that the government's interest in responding to evidence of conduct is the same as its interest in prohibiting the conduct in the first place--an interest the government has repeatedly defined as the preservation of unit cohesion among military troops.(34) The question then must be: If the statement "I am gay" were stripped of its expressive, communicative element, would penalizing such a statement advance the government's interest in preserving unit cohesion?

Both logic and legislative history dictate an answer of no. A propensity to engage in homosexual acts that is in no way communicated to the unit does not, and logically cannot, affect the unit's morale. This simple intuition is confirmed by a glance at the testimony on which Congress relied in enacting the legislation. The report of the Association of the United States Army, for example, stated that "[h]eterosexual animosity toward known homosexuals can cause latent or even overt hostility, resulting in degradation of team or unit esprit."(35) General H. Norman Schwartzkopf testified that "the introduction of an open homosexual into a small unit immediately polarizes that unit."(36) General John P. Otjen stated that disruption occurs "when somebody identifies themselves [sic] as a homosexual."(37) These statements show that the expression of a serviceperson's propensity toward homosexual behavior is fundamental to the unit disruption such a propensity might cause. Where the confession is necessary to complete the crime,(38) it is more than just evidence. It is expression.

Framed in this way, [Sections] 654(b)(2) clearly fails the third prong of the O'Brien test. If this section of the statute is to survive a First Amendment challenge, therefore, it cannot be on the grounds that it is unrelated to the restriction of free expression.

III

What lessons can be drawn from this conclusion?First, acknowledging that expression of homosexual conduct is key to the asserted harm has ramifications for other, facially nonspeech sections of the statute. Section 654(b)(1), for example, flatly prohibits engaging in homosexual acts. Of course, before the government can penalize such acts, they must be somehow "expressed." This is not a function of [Sections] 654(b)(1) in particular; as a practical matter, any illegal act must be communicated to others in some way before it can be penalized. A baseline quantity of expression is thus implicated in all restrictions on conduct--it is just too clearly "incidental" to require O'Brien analysis. But is it so clearly incidental in the case of [Sections] 654(b)(1)? The above analysis of [Sections] 654(b)(2) suggests that the expression of these acts--expression which must have occurred in order for the inquiry to arise in the first place--may be necessary not just for the prosecution of the crime, but for the crime itself. If this is the case, there has been a strange twist: Rather than expression serving as a proxy for conduct (the government's claim regarding the "don't tell" provision), conduct in [Sections] 654(b)(1) serves as a proxy for expression.

The conclusion that [Sections] 654(b)(2) and [Sections] 654(b)(1) deliberately restrict expression, however, does not guarantee the unconstitutionality of the military policy. The government may admit to treating statements of homosexual orientation (and even homosexual conduct itself) as expressive acts and still argue that it has a compelling reason to penalize such acts, given their effect on military cohesion. It might advance some kind of a yelling-"fire"-in-a-crowded-theater argument;(39) it would surely invoke the courts' traditional deference to the military in all matters,(40) including those implicating the First Amendment.(41) But in doing so, it would face the proper level of scrutiny demanded by government actions that directly target expression. Moreover, it could no longer promulgate the myth that the military's policy does not have serious implications for free expression. By uncritically accepting the speech-as-evidence framework, the Holmes court missed the opportunity to explode that myth.

(1.) 124 F.3d 1126 (9th Cir. 1997).

(2.) The military's policy on homosexuals is codified at 10 U.S.C. [Sections] 654 (1994). The statute provides for dismissal of servicemembers who "demonstrate a propensity or intent to engage in homosexual acts," id. [Sections] 654(a). This demonstration may be made by engaging in homosexual acts, stating that one is homosexual or bisexual, or marrying a person of the same biological sex, see id. [Sections] 654(b)(1)-(3). This language differs only slightly from the former military policy; the main difference is that the previous policy was articulated in administrative regulations only and was not codified.

The part of the military's policy that departs in substance from the former policy--the "don't ask" provision--is contained not in the statute, but in the Defense Department's implementing regulations. See DOD Directives Nos. 1304.26, 1322.18, 1332.14, 1332.30, and DOD Instruction No. 5505.8. The substance of these directives is not mandated by the statute. Thus, the "don't ask" prong may be altered or dropped at the Defense Department's discretion.

(3.) 80 F.3d 915 (4th Cir. 1996) (en banc).

(4.) 97 F.3d 256 (8th Cir. 1996).

(5.) See Holmes, 124 F.3d at 1132; Richenberg, 97 F.3d at 260 & n.5; Thomasson, 80 F.3d at 928.

(6.) See Holmes, 124 F.3d at 1133-34; Richenberg, 97 F.3d at 261-262; Thomasson, 80 F.3d at 928-930.

(7.) See Holmes, 124 F.3d at 1133; Richenberg, 97 F.3d at 261-62; Thomasson, 80 F.3d at 929.

(8.) See Holmes, 124 F.3d at 1136; Richenberg, 97 F.3d at 262-63; Thomasson, 80 F.3d at 931-32; see also Able v. United States, 88 F.3d 1280, 12.94-96 (2d Cir. 1996) (holding that the policy does not violate the First Amendment and remanding on the question of whether it violates the Equal Protection Clause).

(9.) See Able, 88 F.3d at 1292-96; Thomasson, 80 F.3d at 931-34.

(10.) See Richenberg, 97 F.3d at 263.

(11.) See Holmes, 124 F.3d at 1136.

(12.) See Able, 88 F.3d at 1295.

(13.) See infra text accompanying notes 31-33.

(14.) 10 U.S.C. [Sections] 654(b)(2) (1994).

(15.) See Watson v. Perry, 918 F. Supp. 1403 (W.D. Wash. 1996), aff'd sub nom. Holmes, 124 F.3d 1126 (9th Cir. 1997).

(16.) See id. at 1414.

(17.) See id. at 1415-16, 1417.

(18.) See Holmes v. California Army Nat'l Guard, 920 F. Supp. 1510, 1527-28, 1534-36 (N.D. Cal. 1996), rev'd, 124 F.3d 1126 (9th Cir. 1997).

(19.) See Holmes, 124 F.3d at 1128.

(20.) See id. at 1133-34.

(21.) See id. at 1134-36.

(22.) See id. at 1135.

(23.) Id. at 1136.

(24.) At the judicial level, the most cogent exposition of this argument is Judge Wald's dissent in Steffan v. Perry, 41 F.3d 677, 710 (D.C. Cir. 1994) (Wald, J., dissenting).

(25.) See 10 U.S.C. [Sections] 654(a)(15) (1994).

(26.) See, e.g., Robinson v. California, 370 U.S. 660 (1962) (holding that the mere status of being a narcotics addict may not be criminalized); see also Taylor Flynn, Of Communism, Treason, and Addiction: An Evaluation of Novel Challenges to the Military's Anti-Gay Policy, 80 IOWA L. REV. 979, 1000-01 (1995) (outlining the argument that propensity relates to status, not conduct).

(27.) 470 U.S. 598 (1985).

(28.) See Richenberg v. Perry, 97 F.3d 256, 263 (8th Cir. 1996); Able v. United States, 88 E3d 1280, 1295 (2d Cir. 1996); Thomasson v. Perry, 80 F.3d 915, 932 (4th Cir. 1996) (en banc).

(29.) See Wayte, 470 U.S. at 612 ("[T]he letters written to Selective Service provided strong, perhaps conclusive evidence of the nonregistrant's intent not to comply.--one of the elements of the offense.").

(30.) 391 U.S. 367 (1968), cited in Wayte, 470 U.S. at 611.

(31.) Id. at 376 (emphasis added).

(32.) Id. at 377.

(33.) See id. at 382 ("For this noncommunicative impact of his conduct, and for nothing else, he was convicted.").

(34.) See supra text accompanying note 6.

(35.) H.A.S.C. 103-18, at 337 (emphasis added).

(36.) S. Hrg. No. 103-845, at 595-96 (statement of General H. Norman Schwartzkopf) (emphasis added).

(37.) S. Hearing No. 103-845, at 780 (statement of Gen. John P. Otjen).

(38.) The crime analogy is, of course, only an analogy; the statute does not subject those with propensities toward homosexual conduct to criminal sanctions.

(39.) See Schenck v. United States, 249 U.S. 47, 52 (1919).

(40.) See, e.g., Rostker v. Goldberg, 453 U.S. 57, 70 (1981) (noting that judicial deference "is at its apogee" when reviewing congressional acts that pertain to the military).

(41.) See, e.g., Brown v. Glines, 444 U.S. 348, 354 (1980) ("[W]hile members of the military services are entitled to the protections of the First Amendment, `the different character of the military community and of the military mission requires a different application of those protections.'" (quoting Parker v. Levy, 417 U.S. 733, 758 (1974))).

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