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, 381 U.S. 479 , 85 S.Ct. 1678 , 14 L.Ed.2d 510 (1965) (striking state statute banning use of contraceptives because it infringed on fundamental right of privacy); Eisenstadt v. Baird, 405 U.S. 438 , 92 S.Ct. 1029 , 31 L.Ed.2d 349 (1972) (striking statute prohibiting sale of contraceptives to unmarried person because fundamental right of privacy not limited to what transpires in the marital relationship). After the change in regulations, Sgt. Watkins’ superior officers could not save his military career, despite his exemplary record. As a consequence, our nation has lost a fine soldier, and Sgt. Watkins has suffered a manifest injustice.

Today, however, I have no choice but to concur in the majority’s disposition of Sgt. Watkins’ appeal. We are bound as a regular three-judge panel to follow Beller v. Middendorf, 632 F.2d 788 (9th Cir.1980), in which this court upheld the constitutionality of similar regulations adopted by the Navy. In so holding, our court abdicated one of its primary duties: to safeguard individual rights against intrusions engendered by governmental insensitivity or bigotry. To me, the Army’s current bias against homosexuals is no less repugnant to fundamental constitutional principles than was its long-standing prejudice against minority servicemen.

In dissenting from the refusal of the court to rehear Beller en banc, I discussed my reasons for believing that these pernicious military regulations cannot withstand judicial scrutiny and that the importance of the issue justifies en banc review. Miller v. Rumsfeld, 647 F.2d 80 (9th Cir.1981) (Norris, J., dissenting from order denying suggestion of rehearing en banc). Those views remain unchanged.