Sergeant Perry J. Watkins v. United States Army

In August 1967, at the age of 19, Perry Watkins enlisted in the United States Army. In filling out the Army’s pre-induction medical form, he candidly marked “yes” in response to a question whether he had homosexual tendencies. The Army nonetheless considered Watkins “qualified for admission” and inducted him into its ranks. Watkins served fourteen years in the Army, and became, in the words of his commanding officer, “one of our most respected and trusted soldiers.” Excerpt of Record [ER] at 26d.

Even though Watkins’ homosexuality was always common knowledge, Watkins v. United States Army, 551 F.Supp. 212, 216 (W.D.Wash.1982), the Army has never claimed that his sexual orientation or behavior interfered in any way with military functions. 1 To the contrary, an Army review board found “there is no evidence suggesting that his behavior has had either a degrading effect upon unit performance, morale or discipline, or upon his own job performance.” ER at 26c.

In 1981 the Army promulgated new regulations which mandated the disqualifica *1331 tion of all homosexuals from the Army without regard to the length or quality of their military service. Pursuant to these new regulations, the…

dissenting.

With great reluctance, I have concluded that I am unable to concur in the majority opinion. 1 Like the majority, I believe that homosexuals have been unfairly treated both historically and in the United States today. Were I free to apply my own view of the meaning of the Constitution and in that light to pass upon the validity of the Army’s regulations, I too would conclude that the Army may not refuse to enlist homosexuals. I am bound, however, as a circuit judge to apply the Constitution as it has been interpreted by the Supreme Court and our own circuit, whether or not I agree with those interpretations. Because of this requirement, I am sometimes compelled to reach a result I believe to be contrary to the proper interpretation of constitutional principles. This is, regrettably, one of those times.

I.

In this case we consider the constitutionality of a regulation which bars homosexuals from enlisting in the Army. Sergeant Perry Watkins challenges that regulation under the Equal Protection Clause. The majority holds that homosexuals are a suspect class, and that the regulation cannot survive strict scrutiny. Because I am compelled by recent Supreme Court and Ninth…

847 F.2d 1329 2 Indiv.Empl.Rts.Cas. 1836 Sergeant Perry J. WATKINS, Plaintiff-Appellant, v. UNITED STATES ARMY, et al., Defendants-Appellees. No. 85-4006. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 22, 1987. Decided Feb. 10, 1988. As Amended June 8, 1988. Rehearing en banc ordered June 8, 1988. * James E. Lobsenz, Wolfe & Cullen, Seattle, Wash., for plaintiff-appellant. E. Roy Hawkens, Asst. U.S. Atty., Civil Div., Washington, D.C., for defendants-appellees. Appeal from the United States District Court for the Western District of Washington. Before CANBY, NORRIS and REINHARDT, Circuit Judges. NORRIS, Circuit Judge: 1 In August 1967, at the age of 19, Perry Watkins enlisted in the United States Army. In filling out the Army's pre-induction medical form, he candidly marked "yes" in response to a question whether he had homosexual tendencies. The Army nonetheless considered Watkins "qualified for admission" and inducted him into its ranks. Watkins served fourteen years in the Army, and became, in the words of his commanding officer, "one of our most respected and trusted soldiers." Excerpt of Record [ER] at 26d. 2 Even though Watkins' homosexuality…