discharge him other than his homosexuality. Nonetheless, his public acknowledgment of his homosexuality made him a “true homosexual” whom the military wanted to discharge.
This case was very difficult for the courts because Watkins fit the category of a “true homosexual” yet the military had tolerated his homosexuality. Moreover, the only indication that Watkins had engaged in homosexual activity was quite old. In 1968, Watkins admitted engaging in homosexual acts with two other soldiers, actions that occurred fourteen years before the Army tried to discharge him.43 Thus, he would seem to have met the New Hampshire Supreme Court’s “temporal exception” but for his refusal to repudiate his homosexuality. His unwillingness to repudiate his homosexuality, coupled with the military’s lack of knowledge of recent homosexual acts, made his case one that squarely challenged the military’s power to create penalties solely on the basis of status.
When the Ninth Circuit heard this case for the first time, it viewed the case as one requiring it to determine whether the military could constitutionally penalize someone entirely on the basis of his status.44 Proceeding from that assumption, the Ninth Circuit concluded that such action violated the constitutional ideal of equal protection of the laws:
we conclude that allowing the government to penalize the failure to change such a central aspect of individual and group identity would be abhorrent to the values animating the constitutional ideal of equal protection of the laws.45
The court disallowed the military to discharge an individual such as Watkins whose homosexuality was known solely on the basis of statements rather than conduct.
The Ninth Circuit’s original decision, however, was not as pathbreaking as it might first appear, because it proceeded on the dominant assumption that homosexuality is immutable and bipolar. In other words, we are either fixed as homosexual or heterosexual:
Scientific proof aside [about the immutability of sexual orientation], it seems appropriate to ask whether heterosexuals feel capable of changing their sexual orientation. Would heterosexuals living in a city that passed an ordinance banning those who engaged in or desired to engage in sex with persons of the opposite sex find it easy not only to abstain from heterosexual activity but also to shift the object of their sexual desires to persons of the same sex? It may be that some heterosexuals and homosexuals can change their sexual orientation through extensive therapy, neurosurgery or shock treatment. . . . But the possibility of such a difficult and traumatic change does not make sexual orientation “mutable” for equal protection purposes.46
This passage was strikingly bipolar because the court assumed that individuals have either exclusive heterosexual or exclusive homosexual innate sexual feelings. In the court’s words, shock treatment is the only way to get people to move outside these bipolar categories. Bisexuals, therefore, do not exist. If the court were to recognize the existence of bisexuals, its reasoning might falter because it then would have to ask whether it is reasonable or constitutional for the government to try to affect the conduct of people who do not have an exclusive preference. The court’s argument relied on the presumption of immutability and bipolarity. Thus, it had its own understanding of the “true homosexual” which rendered bisexuals invisible. Its understanding of the true homosexual simply differed from that of the military.
The Ninth Circuit’s modest attempt to redefine the “true homosexual” was ultimately unsuccessful, as its reasoning was overturned by the entire panel of the Ninth Circuit when it sat to reconsider the case. The Ninth Circuit decided the case on estoppel grounds (i.e., not applying a rule on grounds of equity) rather than on equality grounds. It refused to permit the Army to discharge Watkins in the 1980s on an estoppel theory because the military had “affirmatively misrepresented in its official records throughout Watkins’ fourteen-year military career that he was qualified for reenlistment.”47 Because of this affirmative misrepresentation, the Army was estopped from refusing to reenlist Watkins on the basis of his homosexuality.48
The Watkins decision sent out a clear message to the military: discharge a soldier as soon as he or she acknowledges his homosexuality. Do not tolerate the “true homosexual” at all if you want to maintain the integrity of your own regulations. Rather than creating more protection for individuals who may identify as homosexuals or engage in homosexual conduct, the Ninth Circuit’s decision served as a reprimand to the Army for failing to comply with its own regulations to weed out “true homosexuals.” Watkins was a homosexual whom the military and the court found had a “nonwaivable disqualification for reenlistment.”49 By treating that disqualification as discretionary rather than mandatory, the military took the risk of undermining its ability to weed out the “true homosexual.” Watkins was therefore the exceptional “true homosexual” who was allowed to stay in the military only because of repeated attempts by the Army not to strictly enforce its own rules. The military’s definition of the “true homosexual” was left unchanged.
Because of the Army’s fourteen-year history of failing to enforce its own regulations against Watkins, the Ninth Circuit did not have to resolve the issue of whether the military could seek to discharge someone solely on the basis of status. That issue ultimately arose in the second round of benShalom v. Marsh.50 As discussed above, a district court had ruled in 1980 that benShalom’s discharge under the second set of regulations violated the First Amendment. The Army did not appeal that order and eventually reinstated benShalom for the eleven-month balance of her original enlistment.51 Meanwhile, the Army modified its regulation. While serving the final period of her initial enlistment, benShalom sought to reenlist for another full six-year term under the old rules. The army notified benShalom that she was barred from reenlistment because of her acknowledgment that she was a lesbian.52 In 1988, a new district court judge ruled that the Army was continuing to discriminate unconstitutionally against benShalom in violation of the First Amendment, because it was her statements about her sexual orientation that were precluding her from being reenlisted in the Army. The court granted benShalom’s request for a preliminary injunction.53
That decision was overturned on appeal. The Seventh Circuit Court of Appeals concluded that the military had eliminated the problematic passage when it deleted the “desires or interest” language from the prior regulation.54 The court saw no difficulty with the remaining language because it concluded that benShalom’s admission that she was a homosexual implied, “at the very least, a ‘desire’ to commit homosexual acts.”55 Using that interpretation of the regulation, the court was able to avoid the status/conduct issue that had been raised by the first Ninth Circuit panel to hear the Watkins case.56 It was able to resolve the constitutional dilemma that had plagued the Ninth Circuit by allowing the military to discharge or refuse to reenlist the “true homosexual” who was defined solely on the basis of status, not conduct. This finding that conduct and desire are synonymous (so that there is no such thing as a celibate homosexual) was similar to the Sixth Circuit’s conclusion in the Cincinnati case that one cannot identify a homosexual other than on the basis of conduct. The court conflated status and conduct to uphold the military’s regulation.
Fourth Definition: Don’t Ask, Don’t Tell, and Disavow
The third definition, which conflates status and conduct, however, did not end the military’s attempts to define the “true homosexual” it wanted to exclude from military service. In a highly publicized dispute with President Clinton, who wanted to end discrimination against gay men, lesbians, and bisexuals in the military, Congress decided to codify its own version of who should be excluded from military service based on homosexuality.
Under the new rules, which for the first time were codified by statute, a member of the armed forces shall be separated if:
(1) the member has engaged in, attempted to engage
