Log Cabin Republicans v. United States of America et al

Filing 83

ORDER by Judge Virginia A. Phillips: granting in part and denying in part defendants' 29 Motion to Dismiss Case. The Court DENIES the Motion insofar as it attacks Plaintiff's standing to bring suit; DENIES the Motion as to Plaintiff's substantive due process claim; GRANTS the Motion as to Plaintiff's equal protection claim; and GRANTS IN PART and DENIES IN PART the Motion as to Plaintiff's First Amendment claim. (See document for further specifics) (mrgo)

Log Cabin Republicans v. United States of America et al

Doc. 83

1 2 3 4 5 6 7 8 9 10 11 LOG CABIN REPUBLICANS, a ) non-profit corporation, ) 12 ) Plaintiff, ) 13 ) v. ) 14 ) UNITED STATES OF AMERICA ) 15 and DONALD H. RUMSFELD, ) SECRETARY OF DEFENSE, in ) 16 his official capacity, ) ) 17 Defendants. ) ________________________ ) 18 19 Case No. CV 04-8425-VAP (Ex) [Motion filed on June 12, 2006] ORDER DENYING IN PART AND GRANTING IN PART MOTION TO DISMISS UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

Defendants United States of America and Donald

20 Rumsfeld's ("Defendants") Motion to Dismiss ("Motion") 21 came before the Court for hearing on March 9, 2009. 22 After reviewing and considering all papers filed in 23 support of, and in opposition to, the Motion, as well as 24 the arguments advanced by counsel at the hearing, the 25 Court grants the Motion in part and denies it in part. 26 27 Log Cabin Republicans, ("Plaintiff" or "Plaintiff 28 association"), a nonprofit corporation whose membership

Dockets.Justia.com

1 includes current, retired, and former homosexual1 members 2 of the U.S. armed forces, challenges as "restrictive, 3 punitive . . .discriminatory," and unconstitutional the 4 "Don't Ask Don't Tell" policy ("DADT") of Defendants, 5 including both the statute codified at 10 U.S.C. section 6 654 and the implementing regulations appearing at 7 Department of Defense Directives ("DoDD" or "implementing 8 regulations") 1332.14, 1332.30, and 1304.26. 9 Amended Complaint ("FAC") ¶ 6.) 11 Court. 2 12 13 14 A. 15 16 Facts 1. Plaintiff and its members Assuming all the facts in Plaintiff's FAC are true, I. BACKGROUND (First Defendants' Motion to

10 Dismiss ("Motion") Plaintiff's FAC is now before the

17 as the Court must when considering a motion to dismiss 18 under Rule 12(b)(6), Plaintiff is a nonprofit corporation 19 dedicated to the interests of homosexuals and organized 20 under the laws of the District of Columbia. (FAC ¶ 10.) 21 Plaintiff's members include current, retired, and former 22 members of the U.S. armed forces who seek to serve 23 "without fear of investigation, discharge, stigma, 24 The Court uses the term "homosexual" for the sake of consistency with the Ninth Circuit's opinion in Witt v. 26 Dep't of the Air Force, 527 F.3d 806 (9th Cir. 2008). 2 The case was transferred to this Court's docket on 27 October 8, 2008, upon the resignation of the Honorable 28 George P. Schiavelli. 25
2
1

1 forfeiture of fundamental liberties, harassment and other 2 negative repercussions" imposed in connection with their 3 homosexuality. 4 5 6 a. Current members of the armed forces Plaintiff association includes homosexual persons (FAC ¶¶ 8, 12, 17.)

7 currently in the armed forces, among them "John Doe," 8 ("Doe") a homosexual man, who submitted a declaration in 9 support of the FAC. (FAC ¶¶ 17-21.) DADT prevents Doe 10 from "communicat[ing] the core of his emotions and 11 identity to others" and from exercising his 12 "constitutionally protected right to engage in private, 13 consensual homosexual conduct without intervention of the 14 government." 15 16 Doe fears that making his name public in connection (FAC ¶ 21.) 17 with this action will subject him to "investigation and 18 discharge" as well as "other possible harm." 19 20 21 b. Retired members of the armed forces They remain subject to Plaintiff's members also include retired armed forces (FAC ¶ 20.)3

22 personnel who are homosexuals.

23 DADT and "fear exercising their constitutional rights. . 24 . or making public their own names" as they fear 25 26 27 Plaintiff does not define "private, consensual 28 homosexual conduct."
3
3

1 Defendants might deny them retirement benefits. 2 22.) 3 4 5 c. Former members of the armed forces

(FAC ¶

Those separated from the armed forces pursuant to (FAC ¶¶ 6, 7,

6 DADT, including John Alexander Nicholson ("Nicholson"), 7 are also members of Plaintiff association. 8 12.) Nicholson is homosexual, fluent in several He enlisted in the U.S. Army

9 languages, including Arabic, and has a Bachelor's degree 10 in International Relations. 12 collection. (FAC ¶ 13.) 11 in 2001 and received training in human intelligence While in the Army, pursuant to 13 DADT, Defendants denied him the ability to communicate 14 his emotions and identity to others as well as the right 15 to engage in private, consensual sexual conduct with the 16 sex to whom he is attracted without the government's 17 intervention. 19 discharged. (FAC ¶ 14.) (FAC ¶¶ 14.) Nicholson became subject to His discharge caused Nicholson DADT continues to (FAC ¶ 18 separation proceedings pursuant to DADT in 2002 and was 20 emotional distress. 22 16.) 23 24 25 2. DADT DADT includes both the statutory language appearing (FAC ¶ (FAC ¶ 14.)

21 prevent Nicholson from returning to the Army.

26 at 10 U.S.C. section 654 and the implementing regulations 27 appearing as DoDDs 1332.14, 1332.30, and 1304.26. 28
4

1 28.)

DADT can be triggered by three kinds of "homosexual

2 conduct:" (1) by "homosexual acts"; (2) statements that 3 one "is a homosexual"; or (3) marriage or an attempt to 4 marry a person of the same biological sex. 6 7 8 a. "Homosexual acts" First, Defendants may initiate separation proceedings 10 U.S.C. § 5 654 (b); DoDD 1332.14 at E3.A4.2.4; 1332.30 at 1-1.

9 if a service member engages in a "homosexual act," 10 defined as "(A) any bodily contact, actively undertaken 11 or passively permitted, between members of the same sex 12 for the purpose of satisfying sexual desires; and (B) any 13 bodily contact which a reasonable person would understand 14 to demonstrate a propensity or intent to engage in an act 15 described in subparagraph (A)." 16 (f)(3)(A)-(B). 17 kissing. 19 20 21 b. Statements one "is a homosexual" Second, Defendants may initiate separation if a 10 U.S.C. § 18 E3.A4.1.2.4.1.) 10 U.S.C. §§ 654 (b)(1), Such acts include holding hands and

(FAC ¶ 31 citing DoDD 1332.14 at

22 service member makes a statement "he or she is a 23 homosexual . . . or words to that effect." 24 654(b)(2). These words create a presumption the service

25 member is a "person who engages in, attempts to engage 26 in, has a propensity to engage in, or intends to engage 27 in homosexual acts." 28
5

10 U.S.C. § 654(b).

A propensity

1 is "more than an abstract preference or desire to engage 2 in homosexual acts; it indicates a likelihood that a 3 person engages or will engage in homosexual acts." 4 1332.14 at E3.A1.1.8.1.2.2. 5 6 7 8 c. Marriage or attempted marriage to a person of the same sex The third route to separation under DADT, marriage or DoDD

9 attempted marriage to a person of the same sex, is self10 explanatory. 11 12 13 d. Discharge Once Defendants find a service member has engaged in

14 "homosexual conduct," as defined above, Defendants will 15 discharge him or her unless the service member can 16 demonstrate, by a preponderance of the evidence, that, 17 inter alia, such acts are not his or her usual or 18 customary behavior and that he or she has no propensity 19 to engage in "homosexual acts." 21 22 23 3. Congressional findings of fact They state, in Congress made 15 factual findings in connection with (FAC ¶¶ 30-33); 10 20 U.S.C. § 654(b)(1); DoDD 1332.14 at E3.A1.1.8.1.2.

24 the statutory embodiment of DADT. 25 relevant part: 26 27 28
6

1! 2 3 4! 5 6 7 8 9 10 11 ! 12 13 14 15 16 17 18 ! 19 20 21 22 23 24 25 26 28

"There is no constitutional right to serve in the armed forces." 10 U.S.C. § 654 (a)(2).

"Military life is fundamentally different from civilian life in that . . . the military society is characterized by its own laws, rules, customs, and traditions, including numerous restrictions on personal behavior, that would not be acceptable in civilian society." 10 U.S.C. § 654(a)(8)(B).

"The standards of conduct for members of the armed forces regulate a member's life for 24 hours each day beginning at the moment the member enters military status and not ending until that person is discharged or otherwise separated from the armed forces." U.S.C. § 654(a)(9). "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." 4. Impact of DADT 10 U.S.C. § 654(a)(15). 10

According to Plaintiff, pursuant to DADT Defendants

27 have discharged nearly 10,000 members of the U.S. armed
7

1 forces, including those in non-combat positions. 2 34-36.)

(FAC ¶

Nevertheless, Defendants have discharged 40% (FAC ¶ 36.)

3 fewer persons pursuant to DADT since the outbreak of the 4 wars in Afghanistan and Iraq. 5 6 B. 7 Procedural History Plaintiff filed its Complaint on October 12, 2004.

8 On December 13, 2004, Defendants moved to dismiss the 9 Complaint, alleging, inter alia, that Plaintiff lacked 10 standing. The Honorable George P. Judge Schiavelli 11 granted the motion to dismiss the Complaint with leave to 12 amend on March 21, 2006. 13 14 On April 28, 2006, Plaintiff timely filed its FAC, 15 attaching the declaration of Nicholson, a current member 16 of Plaintiff organization and a former member of the U.S. 17 Army. According to the FAC, DADT violates the First and 18 Fifth Amendments to the U.S. Constitution by violating 19 guarantees to: (1) substantive due process; (2) equal 20 protection; and (3) freedom of speech. On June 11, 2007, 21 Plaintiff filed the declaration of Doe, a current member 22 of Plaintiff organization, a homosexual, and a current 23 U.S. Army reservist on active duty. 24 25 On June 12, 2006, Defendants filed their Motion; After conducting 26 Plaintiff opposed; Defendants replied. 28
8

27 a hearing on the Motion and receiving supplemental

1 authorities from both sides, the Court entered an order 2 staying this action on May 23, 2008 in light of the Ninth 3 Circuit's May 21, 2008 decision in Witt v. Dep't of the 4 Air Force, 527 F.3d 806. 5 6 After the case was transferred to this Court in late 7 2008, it held a status conference on January 28, 2009, 8 lifted the stay, set a hearing date for the Motion, and 9 permitted the parties to submit additional authority 10 regarding the substantive due process challenge. 11 Defendants filed their supplemental brief addressing the 12 issue of substantive due process on February 17, 2009 13 ("Defs.' Supp'l Br.") and Plaintiff filed its submission 14 on February 27, 2009 ("Pl.'s Supp'l Br."). 15 16 17 II. LEGAL STANDARD Under Rule 12(b)(6), a party may bring a motion to As a general matter, the Federal Rules

18 dismiss for failure to state a claim upon which relief 19 can be granted. 20 require only that a plaintiff provide "'a short and plain 21 statement of the claim' that will give the defendant fair 22 notice of what the plaintiff's claim is and the grounds 23 upon which it rests." Conley v. Gibson, 355 U.S. 41, 47 24 (1957) (quoting Fed. R. Civ. P. 8(a)(2)); Bell Atlantic 25 Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1964 26 (2007). 28
9

In addition, the Court must accept all material

27 allegations in the complaint ­ as well as any reasonable

1 inferences to be drawn from them ­ as true.

See Doe v.

2 United States, 419 F.3d 1058, 1062 (9th Cir. 2005); ARC 3 Ecology v. U.S. Dep't of Air Force, 411 F.3d 1092, 1096 4 (9th Cir. 2005). 5 6 "While a complaint attacked by a Rule 12(b)(6) 7 motion to dismiss does not need detailed factual 8 allegations, a plaintiff's obligation to provide the 9 'grounds' of his 'entitlement to relief' requires more 10 than labels and conclusions, and a formulaic recitation 11 of the elements of a cause of action will not do." 12 Atlantic, 127 S. Ct. at 1964-65 (citations omitted). 13 Rather, the allegations in the complaint "must be enough 14 to raise a right to relief above the speculative level." 15 Id. at 1965. 16 17 Although the scope of review is limited to the 18 contents of the complaint, the Court may also consider 19 exhibits submitted with the complaint, Hal Roach Studios, 20 Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 21 (9th Cir. 1990), and "take judicial notice of matters of 22 public record outside the pleadings," Mir v. Little Co. 23 of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988). 24 25 26 28
10

Bell

III. DISCUSSION Defendants move for dismissal of Plaintiff's FAC on

27 four grounds: (1) Plaintiff lacks standing to bring suit

1 on behalf of current members of the armed forces; and 2 Plaintiff fails to state a claim for violation of the 3 constitutional guarantees to (2) substantive due process; 4 (3) equal protection; and (4) freedom of speech. 5 6 A. 7 Standing Plaintiff brings suit on behalf of its members who Pursuant to Hunt v. Washington State Apple

8 are homosexuals and current or former members of the 9 armed forces. 10 Advertising Commission, 432 U.S. 333, 343 (1977), 11 Plaintiff, as an association that has not suffered any 12 injury itself, may assert associational standing to sue 13 in a representative capacity for injuries to its members 14 by showing: (1) at least one member would have standing, 15 in his or her own right, to present the claim asserted by 16 the association; (2) the interests sought to be protected 17 are germane to the association's purpose; and (3) neither 18 the claim asserted nor the relief requested requires that 19 the members participate individually in the suit. 20 Hunt, 432 U.S. at 343, 376-79. 21 22 23 1. Standing asserted under Complaint The Court dismissed the original Complaint for lack See

24 of standing because Plaintiff failed to allege compliance 25 with the first prong of the Hunt test: Plaintiff 26 "fail[ed] to identify a single individual who is (1) an 27 active member of [Plaintiff]; (2) has served or currently 28
11

1 serves in the Armed Forces; and (3) has been injured by 2 the policy." (March 2006 J. Schiavelli Order ("2006 The Court required Plaintiff "to 3 Order") 15:11-14.)

4 identify, by name, at least one of its members injured by 5 the subject policy if it wishes to proceed with this 6 action." 7 8 The Court explicitly rejected Plaintiff's contention 9 it ought to be able to bring suit on behalf of current 10 members of the military without naming them because they 11 fear discharge pursuant to DADT. 12 13 14 2. Standing asserted under the FAC It submits the declarations of Nicholson and Doe, Defendants (Mot. Plaintiff's FAC properly alleges standing to bring (2006 Order 16.) (2006 Order 17:9-10.)

15 suit.

16 current members of Plaintiff organization.

17 assert Plaintiff nevertheless cannot assert the claims in 18 the FAC on behalf of current service members.4 19 7:8-9.) 21 forces. Defendants argue the 2006 Order requires The plain text of the Order, however, requires

20 Plaintiff to name a currently serving member of the armed 22 Plaintiff only to name a current member of Plaintiff 23 association, not a current member of the armed forces. 24 (Mot. 8; 2006 Order 17:8-10.) 25 In its most recent briefing Defendants did not reiterate their challenge to Plaintiff's standing to sue 27 on behalf of former service persons. Plaintiff produced the declaration of Nicholson, a former service member 28 discharged pursuant to DADT. 26
12
4

Accordingly, the Court

1 denies the Motion insofar as it is based on the claimed 2 failure to amend in compliance with the 2006 Order. 3 4 Defendants also contend Plaintiff cannot assert 5 claims on behalf of currently active service members 6 because the 2006 Order granting leave to amend did not 7 permit Plaintiff to bring suit on behalf of anonymous 8 members or former members of the armed forces, despite 9 their professed fear of investigation, discharge, and 10 loss of retirement benefits. 11 9.) 12 13 The Court declines to find Plaintiff's new First, 14 allegations insufficient to justify standing. (2006 Order 16-17, Mot. 8-

15 this is "the 'unusual case' where nondisclosure of the 16 party's identity 'is necessary . . . to protect a person 17 from harassment, injury, ridicule or personal 18 embarrassment." 20 1981). 21 22 Even leaving aside the issue of the propriety of 23 pseudonyms, however, the allegations are sufficient. 24 Pursuant to Associated General Contractors of California, 25 Inc. v. Coalition for Economic Equity, 950 F.2d 1401, 26 1406-07 (9th Cir. 1991), the declaration of one member of 27 an association that he suffered a harm, coupled with 28
13

(Contra Mot. 9.)

Does I Thru XXXIII v.

19 Advanced Textile Corp., 214 F.3d 1058, 1068 (9th Cir.

1 general assertions that other members would suffer 2 similar harm, suffices to confer standing on an 3 association. Associated Gen'l Contractors, 950 F.2d at 4 1406-07 (declaration one member was discouraged from 5 bidding on contract enough to confer standing on 6 organization to challenge ordinance regulating 7 preferences in bidding). (Opp'n 4.) Here, as in 8 Associated General Contractors, Plaintiff furnishes the 9 declaration of a named member of the organization, 10 Nicholson, stating he has been harmed, and asserts other 11 members of the association will suffer similar fates. 12 This satisfies the first prong of the Hunt test. 14 432 U.S. at 333, 341-43. See 13 Associated Gen'l Contractors, 950 F.2d at 1406-07; Hunt, Accordingly, the Court finds 15 Plaintiff has standing to bring suit on behalf of current 16 and former homosexual members of the armed forces. 17 18 B. 19 Substantive Due Process Plaintiff asserts DADT violates the substantive due Defendant moves the Court Plaintiff relies on Witt, where

20 process rights of its members. 21 to dismiss this claim.

22 the Ninth Circuit remanded the case for an as-applied 23 substantive due process review, and Lawrence v. Texas, 24 where the Supreme Court held a Texas criminal sodomy law 25 violated substantive due process. Witt, 527 F.3d at 821; In contrast, 26 Lawrence, 539 U.S. 558, 578-79 (2003). 28
14

27 Defendants cite older Ninth Circuit precedent,

1 particularly Holmes v. California Army National Guard, 2 124 F.3d 1126, 1132-36 (9th Cir. 1997) and Philips v. 3 Perry, 106 F.3d 1420, 1425-29 (9th Cir. 1997), in which 4 the Ninth Circuit upheld DADT. 5 6 7 1. Witt's heightened scrutiny In its 2008 Witt decision, the Ninth Circuit adopted

8 a "heightened scrutiny" standard to assess whether DADT 9 comports with the substantive due process guarantee of 10 the U.S. Constitution. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Witt, 527 F.3d at 821. The Ninth 11 Circuit adopted the following test: when the government attempts to intrude upon the personal and private lives of homosexuals, in a manner that implicates the rights identified in Lawrence, the government must advance an important governmental interest, the intrusion must significantly further that interest, and the intrusion must be necessary to further that interest. In other words, for the third factor, a less intrusive means must be unlikely to achieve substantially the government's interest. Witt, 527 F.3d at 819. In the same discussion, the Ninth Circuit also explicitly "h[e]ld that this heightened scrutiny analysis is as-applied rather than facial, . . ." and the Ninth Circuit emphasized "we must determine not whether DADT has some hypothetical, posthoc rationalization in general, but whether a justification exists for the application of the policy as applied to Major Witt."
15

The

1 as-applied inquiry "is necessary to give meaning to the 2 Supreme Court's conclusion that 'liberty gives 3 substantial protection to adult persons in deciding how 4 to conduct their private lives in matters pertaining to 5 sex.'" 6 7 The parties dispute the effect and application of Defendants claim it limits all substantive (Defs.' Supp'l Br. 7.) Plaintiff argues 8 Witt here. Witt, 527 F.3d at 819.

9 due process challenges to DADT to as-applied rather than 10 facial attacks. 11 it has the right to choose its own litigation strategy, 12 including a facial challenge, and points out the 13 congruity between association standing and a facial 14 challenge. 15 16 Witt expresses a strong preference for as-applied For example, 17 challenges and clearly limits the heightened scrutiny 18 standard it announces to such challenges. 19 the decision stresses consideration of "the facts of the 20 individual case," an inquiry impossible in a facial 21 challenge. 22 8.) Witt, 527 F.3d at 819; (see Defs.' Supp'l Br. Nevertheless, Defendants do not direct the Court to (Pl.'s Supp'l Br. 5.)

23 language forbidding facial challenges or forbidding 24 associations from challenging DADT. 25 26 28
16

Accordingly, nothing in Witt bars Plaintiff from

27 asserting a facial challenge to DADT, although in doing

1 so it will not be able to rely upon Witt's heightened 2 scrutiny standard as the Ninth Circuit limited this 3 standard to as-applied challenges. 4 Br. 3.) 5 6 7 2. Lawrence's impact on Holmes As Witt does not compel the Court to deny the Motion, (Contra Pl.'s Supp'l

8 we turn next to whether Lawrence or Holmes5 provides 9 guidance here. 10 11 According to Defendants, Lawrence is not pertinent, 12 because it discusses application of a criminal statute in 13 a civilian setting, and is irrelevant to the validity of 14 Holmes . (See Reply 5 citing Galbraith v. County of Santa 15 Clara, 307 F.3d 1119, 1123 (9th Cir. 2002) (discussing 16 the application of Supreme Court opinions to Ninth 17 Circuit precedent) and Miller v. Gammie, 335 F.3d 889, 18 900 (9th Cir. 2003) (en banc) (same).) 19 20 22 23 24 25 26 27 28 Holmes upheld DADT in the face of a substantive due process challenge. See Holmes, 124 F.3d at 1136. (Mot. 19.) Defendants also rely on Philips for the proposition that DADT is not based on mere negative attitudes and that it responds to the unique needs of military life. However, Philips discusses equal protection concerns, not substantive due process. (See Mot. 19; Reply 5); Philips, 106 F.3d at 1429.
17
5

Defendants rely on Holmes in vain.

The Holmes Court

21 relied on Bowers v. Hardwick, 478 U.S. 186 (1986), which

1 Lawrence overturned.

Holmes, 124 F.3d at 1136;6 It ought

2 Lawrence, 539 U.S. at 578 ("Bowers was not correct when 3 it was decided, and it is not correct today. 4 not to remain binding precedent. 5 should be and now is overruled"). 7 which Holmes rested. 8 at 578.) 9 10 As the foundation on which Holmes rested was 11 dissolved by Lawrence, the Court cannot conclude 12 Plaintiff's substantive due process claim lacks merit. 13 The Court DENIES the Motion as to the substantive due 14 process claim. 15 16 C. 17 Equal Protection Plaintiff claims DADT violates the Fifth Amendment's Bowers v. Hardwick Lawrence unequivocally

6 overruled Bowers; therefore, it removed the foundation on (Opp'n 5 citing Lawrence, 539 U.S.

18 equal protection clause because (1) it treats homosexual 19 service persons differently than similarly-situated 20 heterosexual persons based on impermissible 21 considerations and because (2) homosexuals either are 22 23 24 25 26 27 28 At page 1136, the Holmes court relies on Schowengerdt v. United States, 944 F.2d 483, 490 (9th Cir. 1991) where the court found plaintiff's "substantive due process claim with respect to the old" pre-DADT policy was "foreclosed by Bowers v. Hardwick, 478 U.S. 186. . .". Holmes also relies on High Tech Gays v. Defense Industrial Security Clearance Office, 895 F.2d 563 (9th Cir. 1990) which in turn relied on Bowers for the proposition that persons do not have a fundamental right to engage in intimate homosexual conduct. High Tech Gays, 895 F.2d at 571.
18
6

1 part of a suspect class or exercise a fundamental right. 2 (Opp'n 16.) 3 4 Defendants assert Plaintiff does not state an equal 5 protection claim, as homosexuals are not a suspect or a 6 quasi-suspect class according to Ninth Circuit precedent 7 undisturbed by Lawrence, which was not decided on equal 8 protection grounds. (See Mot. 20); Witt, 527 F.3d 806 The Ninth Circuit upheld DADT 9 (discussing Lawrence).

10 under rational basis review in Holmes, 124 F.3d at 1132 11 ("homosexuals do not constitute a suspect or quasi12 suspect class"), Philips, 106 F.3d at 1425-29, and High 13 Tech Gays v. Defense Industrial Security Clearance 14 Office, 895 F.2d 563, 571, 576-78 (9th Cir. 1990) 15 (relying on Bowers for proposition "homosexual activity 16 is not a fundamental right" and "homosexuals cannot 17 constitute a suspect or quasi-suspect class"). 18 19 Plaintiff offers three reasons why the Court should Plaintiff first asserts 20 depart from this precedent.

21 Lawrence "established a fundamental right to engage in 22 intimate, consensual physical acts and relationships with 23 persons of the same gender." (Opp'n 17.) Witt 24 foreclosed this interpretation, by finding Lawrence did 25 not discuss equal protection and did not disturb 26 Philips's holding that DADT complies with the 27 28
19

1 Constitution's guarantee of equal protection. 2 527 F.3d at 821. 3 4

See Witt,

Second, Plaintiff relies on Karouni v. Gonzales, 399

5 F.3d 1163 (9th Cir. 2005), in which the Ninth Circuit 6 considered the asylum claim of a homosexual Lebanese man. 7 Karouni is distinguishable on its facts as an asylum 8 case. 9 10 Third, Plaintiff asserts it should be permitted to As Plaintiff has not 11 conduct discovery and present evidence at the appropriate 12 stage of the case on this issue. 13 succeeded in stating an equal protection claim under 14 existing law, however, it has not shown how discovery 15 would cure the legal infirmity. 17 claim. 18 19 D. 20 First Amendment Plaintiff claims DADT violates its members' First Accordingly, the Court 16 GRANTS the Motion as to Plaintiff's equal protection

21 Amendment rights because it is "likely to chill the 22 exercise of constitutionally protected speech" and is 23 "overbroad," applying to "every facet" of Plaintiff's 24 members' lives. (Opp'n 19, 21, 22.) Plaintiff 25 challenges two ways Defendants use speech to discharge 26 service members: (1) statements of sexual orientation as 27 admission of propensity to engage in "homosexual acts"; 28
20

1 (2) statements of homosexual orientation not used as 2 admissions. 3 4 5 6 7 1. Statements of homosexual orientation as admission of propensity to engage in "homosexual acts" The Ninth Circuit has upheld Defendants' use of a

8 service member's statement he is homosexual as an 9 admission of his likelihood to engage in "homosexual 10 acts." (Mot. 21-22 citing Holmes, 124 F.3d at 1136 and Holmes found this 11 Philips, 106 F.3d at 1430; Reply 14.)7

12 use of homosexual persons' statements did not implicate 13 the First Amendment while the Philips court did not reach 14 the issue. Holmes, 124 F.3d at 1136 ("because 15 [plaintiffs] were discharged for their conduct and not 16 for speech, the First Amendment is not implicated"); 17 Philips 106 F.3d at 1430 (approving "the district court's 18 restraint in declining unnecessarily to reach" the First 19 Amendment issue). While the Court cannot rely on Holmes 20 for its holding rested on Bowers, Lawrence did not 21 disturb Holmes' holdings about the use of speech as 22 admissions. Instead, the proposition that it is 23 permissible to use protected speech as an admission in 24 criminal prosecutions remains good law; according to 25 Defendants, this principle extends to non-criminal 26 discharge proceedings. 27 28
7

(Mot. 22-23 citing

Wisconsin v.

Witt did not address a First Amendment claim.
21

1 Mitchell, 508 U.S. 476, 489 (1993) and Wayte v. United 2 States, 470 U.S. 598 (1985).) 3 4 In Wayte, the Supreme Court upheld the government's 5 use of a young man's letters addressed to the government, 6 in which he stated he had not registered for military 7 service and had no intention to do so, to prosecute him 8 for nonregistration for military service. 9 598-601, 614. 11 prosecution. 12 13 Accordingly, Wayte permits Defendants to use service 14 members' statements they are homosexual as admission of 15 their propensity to engage in "homosexual acts." 16 17 Plaintiff's contention DADT is overbroad and over(See 18 inclusive, regulating even private speech, is unavailing: 19 private speech can be employed as an admission. 20 Opp'n 21-22.) So long it is constitutional for 470 U.S. at The Court found his exercise of his First Id. at 614.

10 Amendment rights did not confer immunity from

21 Defendants to regulate "homosexual acts" that take place 22 anywhere through DADT, it is constitutional for 23 Defendants to use admission of homosexual orientation as 24 showing a likelihood to engage in "homosexual acts." 25 Court GRANTS the Motion to the extent Plaintiff's FAC 26 seeks to mount a First Amendment challenge to DADT's use 27 of certain statements as admissions. 28
22

The

1 2

2.

Other uses of statements In

Plaintiff claims the First Amendment bars Defendants

3 from discharging service members for speech alone.

4 other words, Plaintiff asserts Defendants cannot lawfully 5 use service members' statements they are homosexual for 6 uses other than showing a tendency to engage in 7 "homosexual acts." 8 rule on this issue. The Holmes and Philips courts did not (Opp'n 21;) Holmes, 124 F.3d at 1136

9 ("because [plaintiffs] were discharged for their conduct 10 and not for speech, the First Amendment is not 11 implicated"); Philips, 106 F.3d at 1430 (plaintiff "was 12 discharged because . . . he had engaged in homosexual 13 acts. . . [his] statements were used as evidence, not the 14 reason for discharge"; approving "the district court's 15 restraint in declining unnecessarily to reach" the First 16 Amendment issue). Discharge on the basis of statements 17 not used as admissions of a propensity to engage in 18 "homosexual acts" would appear to be discharge on the 19 basis of speech rather than conduct, an impermissible 20 basis. 22 23 This Court cannot determine from the face of the FAC The FAC does not allege 24 whether Nicholson was, or Doe could yet be, discharged 25 based on statements alone. 26 Nicholson or Doe was discharged, or is subject to 27 discharge, merely for a self-identifying statement 28
23

(See Opp'n 25 citing Holmes, 124 F.3d at 1138

21 (Reinhardt, J., dissenting).)

1 regarding his homosexuality.

Nevertheless, construing

2 the facts in favor of the non-moving party, the Court 3 cannot conclude Plaintiff will not be able to show these 4 facts. Accordingly, the Court DENIES the Motion insofar 5 as Plaintiff founds its FAC on service members' 6 statements alone. 7 8 9 IV. CONCLUSION For the reasons above, the Court DENIES the Motion

10 insofar as it attacks Plaintiff's standing to bring suit; 11 DENIES the Motion as to Plaintiff's substantive due 12 process claim; GRANTS the Motion as to Plaintiff's equal 13 protection claim; and GRANTS IN PART and DENIES IN PART 14 the Motion as to Plaintiff's First Amendment claim. 15 16 17 18 19 Dated: June 9, 2009 20 21 22 23 24 25 26 27 28
24

VIRGINIA A. PHILLIPS United States District Judge