Sergeant Perry WATKINS, Plaintiff-Appellee, v. UNITED STATES ARMY, Et Al., Defendants-Appellants

concurring:

When Staff Sergeant Perry Watkins enlisted in the Army in 1967, he openly declared that he was homosexual. He then invested fourteen years of his life pursuing a career in the military, while never hiding his sexual preference. His performance as a soldier was exemplary, as Judge Choy states. Indeed, one officer called Sgt. Watkins the best clerk he had ever known. To their credit, his superior officers judged his performance on merit and promoted him rapidly, disregarding his homosexuality as irrelevant to their evaluations.

The Army rewarded Sgt. Watkins’ years of outstanding service by destroying his chosen career. When he needed only five more years to qualify for retirement benefits, he was discharged solely because the Army decided to purge all homosexuals from its ranks by changing its regulations to make discharge of homosexuals mandatory rather than discretionary. In my view, this regressive policy demonstrates a callous disregard for the progress American law and society have made toward acknowledging that an individual’s choice of life style is not the concern of government, but a fundamental aspect of personal liberty. See, e.g., Griswold v. Connecticut,…

In this action for declaratory and injunc-tive relief, a serviceman with an exemplary performance record was not allowed to reenlist solely because he is an admitted homosexual. It is clear that the Army knew of Watkins’ sexual preference very early in his fourteen years with the service. However, in 1981 the Army promulgated new regulations requiring the discharge of any homosexual soldier notwithstanding the soldier’s performance record or character of service. The district court held that the Army was estopped from using those regulations as a bar to Watkins’ reenlistment, and enjoined the Army from refusing to reenlist Watkins on that ground. The Army has appealed under 28 U.S.C. § 1292 (a)(1).

It is not our function to question the wisdom of those who changed Army regulations from those merely authorizing separation for homosexuality to regulations that mandate discharge. Absent a determination that the regulations cannot be given legal effect, however, the district court has no power to force Watkins’ superiors to disobey them. We therefore reverse and remand.

I. STATEMENT OF FACTS

As the facts of this case are more fully set forth in the reported opinion of the district…

721 F.2d 687 37 Fair Empl.Prac.Cas. 594 , 37 Empl. Prac. Dec. P 35,276 Sergeant Perry WATKINS, Plaintiff-Appellee, v. UNITED STATES ARMY, et al., Defendants-Appellants. No. 82-3681. United States Court of Appeals, Ninth Circuit. Argued and Submitted Sept. 12, 1983. Decided Dec. 9, 1983. Alfred R. Mollin, Washington, D.C., for defendants-appellants. James E. Lobsenz, Seattle, Wash., for plaintiff-appellee. Appeal from the United States District Court for the Western District of Washington. Before CHOY and NORRIS, Circuit Judges, and CURTIS, * District Judge. CHOY, Circuit Judge: 1 In this action for declaratory and injunctive relief, a serviceman with an exemplary performance record was not allowed to reenlist solely because he is an admitted homosexual. It is clear that the Army knew of Watkins' sexual preference very early in his fourteen years with the service. However, in 1981 the Army promulgated new regulations requiring the discharge of any homosexual soldier notwithstanding the soldier's performance record or character of service. The district court held that the Army was estopped from using those regulations as a bar to Watkins' reenlistment, and enjoined the Army from…