James Lee MILLER, Plaintiff-Appellant, v. Donald H. RUMSFELD, Secretary of Defense Et Al., Defendant-Appellees

647 F.2d 80 25 Fair Empl.Prac.Cas. 1690 , 26 Empl. Prac. Dec. P 32,028 James Lee MILLER, Plaintiff-Appellant, v. Donald H. RUMSFELD, Secretary of Defense et al., Defendant-Appellees. No. 77-1671. United States Court of Appeals, Ninth Circuit. May 15, 1981. Before BROWNING, Chief Judge, KENNEDY, Circuit Judge, and CHRISTENSEN, * District Judge. ORDER The panel as constituted in the above case has voted to deny the petition for rehearing of 632 F.2d 788 . The suggestion for a rehearing en banc having been submitted to a vote of the full court, there is no majority in favor of the suggestion. The petition for rehearing is denied and the suggestion for a rehearing en banc is rejected. Among those judges of the court voting to hear the case en banc were Judges Boochever and Norris, who file the following dissents from the rejection of the en banc suggestion. BOOCHEVER, Circuit Judge, concurring in part with Circuit Judge NORRIS' dissent from the court's rejection of the suggestion for rehearing en banc: Because I believe that this case presents issues of exceptional importance, I join Judge Norris in dissenting from the court's rejection of the suggestion of rehearing en banc. I…

concurring in part with Circuit Judge NORRIS’ dissent from the court’s rejection of the suggestion for rehearing en banc:

Because I believe that this case presents issues of exceptional importance, I join Judge Norris in dissenting from the court’s rejection of the suggestion of rehearing en banc. I further agree with the substance of Part III of Judge Norris’ dissent. Assuming that the Navy’s professed interests are legitimate, they cannot survive either the strict scrutiny test applicable to fundamental rights or the “heightened solicitude” test used by the Beller panel.

NORRIS, Circuit Judge, dissenting from the court’s rejection of the suggestion for rehearing en banc:

In Beller v. Middendorf, 632 F.2d 788 (9th Cir. 1980), a panel of this court upheld as constitutional a Navy regulation which requires the mandatory discharge of any member who has engaged in an act of homosexuality, without regard to individual fitness for service. As Part I of my opinion argues, the Beller panel seriously misconstrues the proper methodology of substantive due process analysis. Part II considers the question — avoided by the Beller panel —which is crucial to the proper due process analysis:…

ORDER

The panel as constituted in the above case has voted to deny the petition for rehearing of 632 F.2d 788 .

The suggestion for a rehearing en banc having been submitted to a vote of the full court, there is no majority in favor of the suggestion.

The petition for rehearing is denied and the suggestion for a rehearing en banc is rejected.

Among those judges of the court voting to hear the case en banc were Judges Booch-ever and Norris, who file the following dissents from the rejection of the en banc suggestion.