Philips

dissenting:

The Navy discharged Petty Officer Mark A Philips because he said that he is gay and that he engaged in private, off-base, consensual same-sex sexual activity. Because I conclude the military’s policy of differentiating between the private sexual activities of its heterosexual and homosexual service members is not rationally related to a legitimate government interest, I respectfully dissent.

*1433 I.

The military’s “don’t ash/don’t tell” policy is not directed to prohibiting public homosexual acts or sexual misconduct by gay men and lesbians. Elaborate military regulations and the Uniform Code of Military Justice (“UCMJ”), 10 U.S.C. §§ 836-940 , already punish sexual misconduct such as sexual harassment, sexual assault, fraternization, and indecent exposure, and sodomy is prohibited under the UCMJ for both heterosexual and homosexual service members. 10 U.S.C. § 925 . However, a simple statement that one is gay, and honest answers to questions about one’s sexual activity, can mandate discharge under the policy.

Philips contends that the policy violates his right to equal protection by subjecting him to mandatory discharge for engaging in sexual acts with a man…

Pursuant to the so-called “don’t ask/don’t tell” policy regarding gays in the military, 1 the Navy discharged Petty Officer Mark A. Philips for stating that he is a homosexual, and for engaging in and saying that he will continue to engage in homosexual acts. Concluding that this circuit has held in a line of cases from Beller v. Middendorf, 632 F.2d 788 (9th Cir.1980), cert. denied, 452 U.S. 905 , 101 S.Ct. 3030 , 69 L.Ed.2d 405 (1981), through Meinhold v. U.S. Dept. of Defense, 34 F.3d 1469 (9th Cir.1994), that the military may constitutionally discharge members who engage in homosexual conduct, as distinguished from merely having a homosexual status or orientation, the district court granted the Secretary of Defense’s motion for summary judgment. 2 Inasmuch as Philips’s homosexual acts were sufficient to justify his discharge under the “acts” prong of the statute and regulations, the court declined to address the constitutionality of the Navy’s alternative basis for discharge under the “statements” prong—that Philips made a statement that he is a homosexual, and failed to rebut the presumption raised by that statement that he has a propensity to engage in homosexual acts.

We…

concurring:

In the name of the equality of all citizens to' serve in the armed forces of the United States, Mark A. Philips asks this court to reverse his honorable discharge from the United States Navy and to restore him to his rank of Petty Officer. To do so we would have to invalidate federal law and military regulations governing the armed forces. To do so we would have to take from the President and assign to ourselves a responsibility for a supervision of military discipline unknown to the Constitution and our traditions and beyond our role as judges of the United States.

The Constitution in a special way confides the care of the military services to Congress, providing in Article I, section 8, that the Congress “shall have power ... to raise and support armies ...; to provide and maintain a navy; to make rules for the government and regulation of the land and naval forces.” The Constitution in a special way rests responsibility for the military services in the President, naming him explicitly in Article II, section 2, as the “Commander in Chief of the Army and Navy of the United States.”

The Constitution does not exempt the military services from its own commands, but by…