By striking down Army regulations barring homosexuals from military service, the U.S. Court of Appeals for the 9th Circuit has tried to vindicate both the rights of homosexuals and the widely accepted view that sexual orientation, like the color of one's skin, is fixed at birth. Gay-rights activists have hailed the 2-1 ruling, the first of its kind, as a major victory in their struggle against discrimination.
What the court majority has done, in essence, is to decree that laws that discriminate between heterosexuals and homosexuals, just like statutes that distinguish between blacks and whites, are presumed to violate the Constitution's equal-protection clause. Under rules constructed over the years by the U.S. Supreme Court, such laws can then be upheld only if the authorities can justify them as "necessary to promote a compelling governmental interest."
In the case of Sgt. Perry J. Watkins, the clerk who served with distinction for 14 years before the Army refused to let him reenlist, the appeals court could find no "compelling governmental interest" among the rationales that the Army offered for ridding its ranks of gays.
The Army insisted that the presence of homosexuals would bring ridicule on the service and hinder recruitment; it also argued that the "tensions between known homosexuals" and other soldiers "who despise or detest homosexuality" would erode morale and discipline. To that the majority firmly replied that the Army should not "cater to private biases."
Though the decision strikes a blow for perhaps the most maligned minority in our society, it may not survive. Watkins' case is almost certain to be appealed to the Supreme Court, a tribunal that lately has taken a very pinched view of equal protection under the law. The justices, for example, have never ruled that laws that discriminate against women are presumptively invalid.
The appeals court's ruling also runs counter, at least in spirit, to a 1986 Supreme Court decision upholding a Georgia sodomy law and rejecting the argument that homosexual activity between consenting adults is protected by privacy rights. The two rulings were based on different sections of the Constitution, so the appeals court could contend that its hands were not tied by the Supreme Court decision.
But, practically, there is not much distinction between the two cases--and precious little comfort for Watkins and others like him in the military. The Army may not be able to discharge a homosexual because of his orientation, but under the Supreme Court's rule it could still court-martial him if he engages in a single act of sodomy--a crime under military law.
We continue to believe that the Supreme Court erred in refusing to decriminalize private homosexual acts between consenting adults. And perhaps there is some chance that the court's newest justice, Anthony Kennedy, could produce a different result when Watkins' case is appealed; he replaces retired Justice Lewis Powell, part of the five-member majority in the Georgia case.
But gay-rights activists, in the military and elsewhere, are more likely to find vindication of their rights in Congress, in state legislatures and in city councils. Slowly, ever so slowly, lawmakers are being persuaded to support statutes that ban discrimination against homosexuals and recognize that they ought not to be penalized for what happens behind bedroom doors.