The position staked out last week by a federal appeals court barring the Army from excluding homosexuals is, in the view of several constitutional scholars, a lonely beachhead of legal theory certain to draw heavy fire in the months ahead.
In an unprecedented ruling, a three-judge panel of the U.S. 9th Circuit Court of Appeals accepted the proposition that homosexuals are entitled to the same kind of special legal protection that courts have previously afforded only to racial and ethnic minorities.
Specifically, the judges held in a 2-1 decision that laws and regulations that distinguish between homosexuals and heterosexuals are inherently suspect. To justify such distinctions, the court said, the government must produce the same kind of compelling reasons required for laws that distinguish on the basis of race or nationality.
An Open Question
Whether that view is eventually accepted by the U.S. Supreme Court as the law of the land is an open question.
"It's way ahead of the pack," added Robert C. Post, a constitutional scholar who is a professor of law at UC Berkeley's Boalt Hall.
"I'm not able to find in the history of the 14th Amendment a suitable professional ground to suddenly treat the sexual disposition toward persons of one's own gender . . . on the same basis as race," said William Van Alstyne, Perkins professor of constitutional law at Duke University School of Law.
Despite his support of the decision, "There's a good chance, I would think, of reversal," said Father Robert F. Drinan, a former Massachusetts congressman who is secretary of the American Bar Assn.'s section on individual rights and responsibilities.
The 9th Circuit's decision in the case of Watkins v. U.S. Army, several scholars said, seems to run against the grain of a 1986 case in which the U.S. Supreme Court ruled that states have the authority to make homosexual sodomy a crime. In that case, Bowers v. Hardwick, the court specifically declined to decide whether states have the same power to ban heterosexual sodomy, even though the Georgia statute involved made no distinction.
The 9th Circuit's ruling also appears to buck a longstanding tradition in which the federal courts have given the military wide latitude to conduct its affairs, several scholars said.
Despite those concerns, several legal theorists said they believe that Judge William A. Norris, who wrote the majority opinion for the appellate court, ruled correctly in what is likely to become a landmark case, however it is resolved.
"The most significant thing is the conclusion that government action based solely on prejudice against homosexuals is invidious discrimination in the very same sense that action based on prejudice of a racial kind is invidious discrimination," said Laurence H. Tribe, a professor at Harvard Law School and a leading liberal scholar in the field of constitutional law. Tribe unsuccessfully argued the Hardwick case before the Supreme Court.
"If this became the law of the land," Tribe added, "it would mean that although the government has the power to regulate conduct, including homosexual conduct, it does not have the power, without very compelling justification, to exclude or discriminate against people because of their sexual orientation."
The debate over the Watkins decision hinges on the distinction between government's authority to regulate specific conduct and its power to control attitudes or desires.
Involved are two distinct constitutional principles--equal protection of the law, which guided the 9th Circuit in the Watkins case, and the right to privacy, which the Supreme Court used in making the Hardwick decision.
In the Watkins case, the appellate court overturned a lower court's ruling that had upheld the Army's 1982 decision to refuse re-enlistment to Sgt. Perry J. Watkins, 39, of Tacoma, Wash., because of his homosexuality. After a series of legal maneuvers, Watkins was finally separated from the service in 1984, after an exemplary 16-year career during which he repeatedly received outstanding ratings from his superiors.
Two Sets of Army Rules
Watkins was excluded on the basis of two sets of Army regulations promulgated in 1981. One barred the re-enlistment of any soldier or officer "who desires bodily contact between persons of the same sex . . . with the intent to obtain or give sexual gratification." A second set of regulations required the discharge of Army personnel who fell into the same category.
Watkins admitted his homosexuality from the start, first acknowledging "homosexual tendencies" in a pre-induction medical questionnaire before his enlistment in August, 1967. But the Army never proved that Watkins had committed any homosexual acts while in the service.
After deciding that homosexuals are entitled to the special legal protection of "strict scrutiny" by the courts, Norris concluded that the Army had not demonstrated that permitting homosexuals to serve would necessarily create morale and discipline problems.