Homosexuals and the Military: Strange Bedfellows
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1. INTRODUCTION
In Watkins v.United States Army,' the United States Court of Appeals for
the Ninth Circuit held that the Army's regulations mandating discharge and non-
reenlistment of homosexuals2 from the service violated the equal protection clause
of the fifth amendment to the United States Constitution. The court determined
that homosexuals constituted a suspect class under the equal protection doctrine.,
The court then applied strict scrutiny as the standard under which the regulations
were to be tested.' The court found no compelling interests on the Army's part
sufficient to justify the regulations.
I!. BACKGROUND
Until this decision, no federal or state court had elevated homosexuals to
suspect class status.6 Although several courts had considered the status of homo-
sexuals under the equal protection doctrine, most had concluded summarily that
homosexuals as a class did not meet the criteria for suspectness.7 In previous
decisions, the courts defined the class of homosexuals by their homosexual conduct
rather than by their sexual orientation.8 In addition, several cases in both United
States circuit courts-of appeal and the United States Supreme Court have held that
homosexual conduct is not a fundamental right under that branch of the equal
protection doctrine.9
1. 837 F. 2d 1428 (9th Cir. 1988).
2. Throughout this Note, the term homosexual is used to describe those of either sex who
engage in homosexual conduct for their sexual gratification.
3. Watkins, 837 F.2d at 1448.
4. Id.
5. Id. at 1451.
6. See, e.g., Belier v. Middendorf, 632 F.2d 788, 809-810 (9th Cir. 1980), cert. denied, 452 U.S.
905 (1981) (Most federal courts ... have understood the holding [in Doe v. Commonwealth's Attorney,
425 U.S. 901 (1976)] to be that homosexual conduct does not enjoy special protection under the due
process clause.)
7. The Supreme Court has enumerated several criteria for suspect class status: the class must
have suffered from a history of purposeful discrimination, the discrimination must be invidious, the
characteristic that defines the group must be generally immutable, and the class must be a discrete and
insular minority. Immutability of the defining factor is relevant, but less so than the other factors in
that recent advances in medical science such as skin pigmentation and sex-change operations have
lessened the literal immutability of some classes. See infra notes 8 and 9.
8. See, e.g., Padula v. Webster, 822 F.2d 97 (D.C. Cir. 1987); Hatheway v. Secretary of the
Army, 641 F.2d 1376 (9th Cir.), cert. denied, 454 U.S. 864 (1981).
9. Bowers v. Hardwick, 478 U.S. 186 (1986); Hatheway, 641 F.2d at 1376; Belier, 632 F.2d at
788.](ViewImageLocal?handle=hein.journals/umkc57&div=11&collection=journals&method=preview&ext=.png&size=3)
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Homosexuals and the Military: Strange Bedfellows
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