Holmes

Opinion by Judge WIGGINS; Dissent by Judge REINHARDT.

We review the constitutional challenges of two service members to the military’s current “don’t ask/don’t tell” policy on homosexuals. 1 Pursuant to the policy, Lieutenant Richard P. Watson was discharged from the United States Navy and First Lieutenant Charles Andrew Holmes was discharged from the California Army National Guard (“GANG”) and the United States Army National Guard (“USANG”). With respect to Watson, the district court granted summary judgment in favor of the Navy, holding that his discharge was essentially based on homosexual conduct and, therefore, the “don’t ask/ don’t tell” policy was constitutional as it applied to him. Watson v. Perry, 918 F.Supp. 1403 (W.D.Wash.1996). With respect to Holmes, the district court granted summary judgment in Holmes’s favor as to his claims for violation of his constitutional rights to equal protection and free speech, holding that his discharge was unconstitutional because it was based solely on his statement that he is homosexual. Holmes v. California Army Nat’l Guard, 920 F.Supp. 1510 (N.D.Cal.1996).

Watson and the defendants in Holmes appeal the respective district court…

dissenting.

I respectfully dissent. I believe that discharging a serviceman on the basis of the statement “I am a homosexual,” “I am gay,” or “I am a lesbian” impermissibly burdens rights guaranteed by the First Amendment. 1 Accordingly, I would hold that 10 U.S.C. § 654 (b)(2) and its implementing regulations are unconstitutional.

I recognize that we are bound by this court’s recent decision that the military may discharge service members who engage in homosexual conduct. See Philips v. Perry, 106 F.3d 1420 (9th Cir.1997). Athough I must follow that decision here, I note that it is necessarily rooted in Bowers v. Hardwick, 478 U.S. 186 , 106 S.Ct. 2841 , 92 L.Ed.2d 140 (1986), a decision that I have previously described as similar in its bias and prejudice to Plessy v. Ferguson, 163 U.S. 537 , 16 S.Ct. 1138 , 41 L.Ed. 256 (1896). I remain confident that someday a Supreme Court with a sense of fairness and an adequate vision of the Constitution will repudiate Bowers in the same way that a wise and fair-minded Court once repudiated Plessy . Indeed, I hope that day will not be long in coming. 3 In my view of the Constitution, there is no more justification for discrimination…