which are set forth in the First Amended Complaint as plaintiff's first through sixth claims for relief. These claims are dismissed without prejudice to plaintiff bringing said claims in the appropriate state forum.
III. Federal Claims
Both the California and Federal defendants' respective motions seek dismissal of plaintiff's federal claims, while plaintiff's cross-motion seeks summary adjudication of those claims in his favor. The Court will address the merits of plaintiff's federal claims by first analyzing the arguments germane only to the California defendants. Following that discussion, the Court will discuss the merits of each of plaintiff's individual federal claims.
A. Defenses Raised By the California Defendants
1. Overview of the National Guard
To place the California defendants' arguments in context, the Court will briefly review the structure of the CANG and its relationship to the USANG.
The National Guard is the modern-day equivalent of the "militia." Maryland v. United States, 381 U.S. 41, 46, 14 L. Ed. 2d 205, 85 S. Ct. 1293, vacated on other grounds, 382 U.S. 159 (1965). The Constitution authorizes Congress to "provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions." U.S. Const., art. I, § 8, cl. 15. The Constitution also gives Congress the power to "provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress." U.S. Const., art. I, § 8, cl. 16. These clauses are commonly described as the "Militia Clauses." Perpich v. Department of Defense, 496 U.S. 334, 337 n.3, 110 L. Ed. 2d 312, 110 S. Ct. 2418 (1990).
From 1903 to 1933, Congress passed a series of acts and amendments which completely overhauled the state militia system. See id. at 341-45. Those acts established the National Guard system, which consists of "'two overlapping but distinct organizations' . . . the National Guard of the various States and the National Guard of the United States." Id. at 345. "Since 1933 all persons who have enlisted in a State National Guard unit have simultaneously enlisted in the National Guard of the United States." Id. Thus, National Guardsmen "now must keep three hats in their closets -- a civilian hat, a state militia hat, and an army hat -- only one of which is worn at any particular time." Id. at 348.
Officers are first commissioned in a state National Guard. "Selection and appointment of [state] Army National Guard officers is solely a state responsibility." MacFarlane v. Grasso, 696 F.2d 217, 226 n.4 (2d Cir. 1982) (emphasis added). "Upon appointment in the Army National Guard of a State . . . an individual has a State status under which he can function." Id. An officer commissioned as an officer into the state national guard may become an officer in the USANG upon a grant of federal recognition. 32 U.S.C. § 307(d); Dehne v. United States, 970 F.2d 890, 891 (Fed. Cir. 1992). "Federal recognition is the acknowledgement by the Federal Government that an officer [of the state militia] appointed, promoted, or transferred to an authorized grade or position vacancy in the Army National Guard [of the United States] meets the prescribed laws and regulation[s] governing the [appointment, promotion, or transfer]." Frey v. State of Cal., 982 F.2d 399, 400 n.3 (9th Cir.), cert. denied, 509 U.S. 906, 113 S. Ct. 3000, 125 L. Ed. 2d 693 (1993).
State National Guards receive federal funding by maintaining federally-recognized units; "states that fail to comply with federal regulations risk forfeiture of federal funds allocated to organize, equip and arm state Guards." Charles v. Rice, 28 F.3d 1312, 1315-316 (1st Cir. 1994) (citing 32 U.S.C. §§ 101, 107, 108, 501 and Knutson v. Wisconsin Air Nat'l Guard, 995 F.2d 765, 767 (7th Cir. 1993), cert. denied, 510 U.S. 933, 114 S. Ct. 347, 126 L. Ed. 2d 311 (1993)). Therefore, most, if not all, states primarily commission those individuals who meet federal qualifications. MacFarlane, 696 F.2d at 226 n.4; see Cal. Mil. & Vet. Code § 222 ("Persons to be commissioned in the National Guard shall be selected from those eligible for federal recognition . . . ."). The USANG is composed of all the federally-recognized members of the state Army National Guards. 32 U.S.C. § 101(4)(D). When not in the active service of the United States, such units are predominantly state entities and are under the command of the governor. MacFarlane, 696 F.2d at 226 n.4.
Once a state officer receives a federal commission, his "capacity and general fitness" to retain his federal recognition can be investigated at any time by an efficiency board composed of commissioned officers of the Regular Military, USANG or both. 32 U.S.C. § 323(b). The findings and recommendations of such boards are reviewed by the Chief of the National Guard Bureau ("NGB"), a joint bureau of the Department of the Army and the Department of the Air Force. If the NGB agrees with a negative report from the efficiency board, the officer loses his federal recognition.
2. Plaintiff's Claims Are Not Moot
Article III of the Constitution limits federal judicial power to "Cases" and "Controversies." United States Parole Comm'n v. Geraghty, 445 U.S. 388, 395, 63 L. Ed. 2d 479, 100 S. Ct. 1202 (1980). Under this limitation, "a case becomes moot when the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome." Murphy v. Hunt, 455 U.S. 478, 481, 71 L. Ed. 2d 353, 102 S. Ct. 1181 (1982) (citing Geraghty, 445 U.S. at 396); accord Western Oil and Gas Ass'n v. Sonoma County, 905 F.2d 1287, 1290 (9th Cir. 1990), cert. denied, 498 U.S. 1067, 112 L. Ed. 2d 846, 111 S. Ct. 784 (1991). When a matter becomes moot, the Court no longer has jurisdiction over the action. County of Los Angeles v. Davis, 440 U.S. 625, 631, 59 L. Ed. 2d 642, 99 S. Ct. 1379 (1979).
In the instant case, the California defendants maintain that this action should be dismissed as moot because plaintiff has admitted that he has engaged in homosexual acts, and hence, cannot regain his federal recognition. (Cal. Defs.' Mot. to Dismiss at 4-5.) This contention lacks merit. The California defendants cite no authority, evidentiary or otherwise, to support this assertion. In fact, the only "act" which plaintiff has engaged in is acknowledging that he is gay.
Since plaintiff is challenging the constitutionality of the military's policy which effectively equates an acknowledgement of status with proscribed conduct, the issues before the Court are "live" for jurisdictional purposes. The Court therefore rejects the California defendants' mootness argument.
3. The California Defendants' Preemption Defense Lacks Merit
The California defendants next contend that they cannot be held liable for Holmes' discharge because they were bound by the Federal defendants' decision to withdraw Holmes' federal recognition, and that their discharge of plaintiff was simply a "ministerial" act. (See Cal. Defs.' Mot. to Dismiss at 2, 5-8.) In support of this contention, the California defendants' rely primarily on 32 U.S.C. § 324(a), which they assert directly compels the states to discharge National Guard officers who lose their federal recognition. They also cite 10 U.S.C. § 654(b) as necessarily preempting state regulation of the National Guard members -- even when the Guard is in state service.
a. 32 U.S.C. § 324(a)(2)
Section 324(a) provides that "an officer of the National Guard shall be discharged when . . . his Federal recognition is withdrawn." 32 U.S.C. § 324(a)(2). It is not readily apparent to which National Guard (in this case, CANG or USANG) the statute refers. Nevertheless, the California defendants assert that "loss of federal recognition means automatic discharge from the California National Guard." (Cal. Defs.' Mot. to Dismiss at 6.)
At first blush, the definitions applicable to Title 32 arguably support the California defendants' interpretation. The United States Code defines "'National Guard' [to mean] the Army National Guard and the Air National Guard." 32 U.S.C. § 101(3). "'Army National Guard' means that part of the organized militia of the several States. . . ." 32 U.S.C. § 101(4) (emphasis added). The Army National Guard is distinguished from the "Army National Guard of the United States." 32 U.S.C. § 101(5). Thus, the California defendants correctly state that section 324(a) can be read to regulate the discharge of officers from state National Guards.
Notwithstanding the above, the Court disagrees with the California defendants that state compliance with section 324(a) is necessarily compelled by the Supremacy Clause. "The termination of the appointment of a commissioned officer of the National Guard is a function of the State authorities." 32 U.S.C. § 1101.5. Consistent with this authority, this Circuit in Frey explicitly recognized that the power of appointing or terminating a state National Guard officer is a matter left to the states. Frey, 982 F.2d at 402 (citing cases and statutes); see also U.S. v. Dern, 74 F.2d 485, 487 (D.C. Cir. 1934) ("The United States has not appointed, and constitutionally cannot appoint or remove (except after being called into federal service), officers of the National Guard . . . .") (emphasis added). Although the loss of federal recognition precludes the officer's membership in the National Guard of the United States, the officer may still be a member of the National Guard of the state. See MacFarlane, 696 F.2d at 226 n.4.
Indeed, direct federal control over state militia personnel decisions, through the granting and withdrawing of "federal recognition," would completely eviscerate the appointment power reserved to the states in the Militia Clauses. Therefore, section 324(a) would be constitutionally infirm if, as the California defendants urge, it requires the discharge of a state-appointed officer in state service merely for losing federal recognition.
Section 324(a) does not purport to preempt state law. Rather, it regulates the states only indirectly, as part of a conditional spending program. "State control in administering matters such as training, personnel, logistics, doctrine, and military justice has been eliminated by a system of federal conditional spending. " P. T. Mullins, The Militia Clauses, the National Guard, and Federalism: A Constitutional Tug of War, 57 Geo. Wash. L. Rev. 328, 343 (1988) (emphasis added).
The only effective control exercised by the federal government and the regular armed forces relative to organizing, equipping, training and policies of the National Guard of any of the States comes from the control of the funds which may be granted to or withheld from the National Guard units pursuant to granting or withdrawing federal recognition.
Don't Ruin Our Park v. Stone, 749 F. Supp. 1386, 1388 (M.D. Pa. 1990) (emphasis added); 32 U.S.C. § 108 (President may withhold federal funds if state fails to comply with any Title 32 provision); accord Charles, 28 F.3d at 1315; Mullins, supra, at 343 ("This purse string has been used to put the states in a 'catch-22' situation -- retain autonomy and lose funding or accept funding and submit to federal control.").
Through the federal recognition system, Congress has effectively circumvented the Militia Clauses' limitation on federal control of militia personnel. Unable or unwilling to forego federal funding, states have voluntarily restrained the exercise of their appointment power by primarily commissioning individuals who are eligible for federal recognition. Thus, even though federal recognition ostensibly does not occur until after the state has appointed an officer, in practical effect, federal recognition determines who may receive a state commission. Similarly, states are effectively forced to discharge or transfer officers who lose their federal recognition in order to preserve federal recognition and funding of the officers' units. Nonetheless, at least with respect to personnel decisions, states ultimately choose to comply with federal National Guard policies.
At the risk of losing funding, states are free to break from § 324(a) and to retain in state service officers who lose their federal recognition.
See MacFarlane, 696 F.2d at 226 n.4.
This fact is illustrated by the experience of at least one National Guard officer who lost his federal recognition but continued to serve in the California military. In Frey, 982 F.2d 399, Colonel Archer Frey brought suit against the state under federal age discrimination laws after being discharged for reaching a state-imposed mandatory retirement age. Frey lost his federal recognition in 1985 because he had attained 30 years of commissioned service. However, "from 1985 until his mandatory retirement [in 1991], Frey served . . . as a military officer in the California National Guard." Id. at 400.
The court noted, "As in Frey's case, one may be a member of the State National Guard, but not a member of the Army or Air National Guard of the United States." Id. at 400 n.2. The court described the effects of loss of federal recognition:
The loss of federal recognition means that the officer no longer participates in federally-paid duty status, which includes activities such as drills, annual training, or service schools at any cost to the federal government, nor may he be called into active federal service.
Id. at 400 n.3. Significantly absent from this list of consequences is "automatic discharge." Such a consequence would in fact render the enumerated consequences irrelevant.
Frey directly contradicts the California defendants' assertion that they must invariably follow and mechanically apply § 324(a). Colonel Frey's experience demonstrates that loss of federal recognition is not an absolute bar to service in California's National Guard. See 11 Ops. Cal. Att'y Gen. 253, 261 (1948) ("Withdrawal of federal recognition does not deprive the officer of his state commission."). Indeed, California law authorizes the commissioning of certain previously-discharged officers who "are no longer eligible for federal recognition." Cal. Mil. & Vet. Code § 222. In contrast, no California statute expressly requires the discharge of an officer who loses federal recognition.
The California defendants fail to appreciate the role of conditional spending in Congress' regulation of the state Guards, and their interpretation of § 324(a) burdens the statute with a serious constitutional infirmity. Furthermore, the California defendants' position is contradicted by a recent example of noncompliance with § 324(a). Therefore, the Court rejects the California defendants' argument that section 324(a) left them with no choice but to discharge Holmes.
b. 10 U.S.C. § 654(b)
The California defendants also contend that they had no control over Holmes' discharge because the federal government's anti-homosexual policy (10 U.S.C. § 654(b)) controls "in both the state and federal 'halves' of the National Guard . . . ." (Cal. Defs.' Reply at 16.) For this proposition, they apparently rely on Johnson v. Orr, 617 F. Supp. 170 (E.D. Cal. 1985), aff'd, 787 F.2d 597 (9th Cir. 1986). In Johnson, a lesbian member of the California National Guard was discharged, pursuant to the federal military regulations that preceded the present policy, after informing her commander of her sexual orientation. The district court, without citing any authority other than the text of the Militia Clauses, ruled that federal regulations applied to National Guard officers even in their state capacity by virtue of Congress' power to "discipline" the militia. Johnson, 617 F. Supp. at 177 (emphasis added). The Ninth Circuit affirmed in an unpublished decision. See 787 F.2d 597 (9th Cir. 1986).
More recent Supreme Court and Ninth Circuit cases, however, suggest that Johnson is no longer reliable authority. In Gilliam v. Miller, 973 F.2d 760 (9th Cir. 1992), two plaintiffs brought suit after being discharged from the Oregon Army National Guard ("ORARNG") for failing to comply with federal military weight control regulations.
Attempting to state a claim under the federal Administrative Procedures Act, the plaintiffs argued that the Oregon Adjutant General acted as a federal agent when he applied the regulations and removed them from the ORARNG. A magistrate judge recommended, and the district court initially approved, a finding favorable to the plaintiffs.
The Adjutant General moved for reconsideration after the Supreme Court, in its Perpich decision, provided a new analysis of the National Guard system. The district court granted the motion and found, pursuant to the conceptual framework articulated in Perpich, that the Adjutant General had been wearing his "state militia hat" when he discharged the plaintiffs. The court reversed its initial finding and dismissed the complaints for failure to state a claim.
The Ninth Circuit affirmed. Rejecting the argument that federal, not state, law controlled, the court held that the regulations were applicable to the plaintiffs not because they preempted state law, but because the state voluntarily incorporated them into state law. Id. at 761 n.2 and 763. Thus, "the adoption of federal training requirements for members of ORARNG by the Oregon Legislature was not a sham," as it would have been if those requirements had already preempted state law. Id. at 763. When the Adjutant General discharged the plaintiffs from state service, he did so "solely in the capacity of a state actor," "fulfilling his role under state law," and not "under federal control." Id. at 764; see Zitser v. Walsh, 352 F. Supp. 438, 440 (D.C. Conn. 1972) (where Connecticut Army National Guard colonel used a federally-promulgated regulation to determine officer's qualifications, "state law commanded him to apply that regulation").
Gilliam cannot be reconciled with the Ninth Circuit's decision in Johnson. Those cases squarely reach opposite conclusions on the question of whether regulation of the National Guard when not in federal service is a state or federal function. In addition to being a more recent case, Gilliam more likely expresses the Ninth Circuit's present position because it followed, and expressly relied on, the Supreme Court's analysis of the National Guard system in Perpich. See id. at 763-64. Therefore, this Court finds that Gilliam controls and that Perpich and Gilliam together have implicitly overruled Johnson.
In light of Gilliam, the California defendants cannot maintain that they acted only "ministerially" in following 10 U.S.C. 654(b); rather, they acted under color of state law. The California defendants were required to enforce the policy only because, and indeed if, California has adopted that policy.
The Court therefore rejects the California defendants' claim that § 654(b) preempted their authority over Holmes' service.
4. Plaintiff's Federal Claims Are Not Barred By the Doctrine of Sovereign Immunity
Finally, the California defendants argue that the doctrine of sovereign immunity under the Eleventh Amendment bars plaintiff's federal claims for relief alleged against them. The Court rejects this argument. Under the Ex parte Young exception, a suit against a state official seeking relief from unconstitutional state action is not a suit against the state, even if the state is the real party in interest. Ex parte Young, 209 U.S. at 160; Kentucky, 473 U.S. at 167 n.14. "The Ex Parte Young exception is necessary to permit the federal courts to vindicate federal rights and hold state officials responsible to the supreme authority of the United States." Almond Hill School v. U.S. Dept. of Agriculture, 768 F.2d 1030, 1034 (9th Cir. 1985) (internal quotation marks and citations omitted). Since plaintiff is seeking prospective injunctive relief preventing the California defendants from violating his rights under the United States Constitution, plaintiff may proceed on his federal claims against the California defendants. Demery v. Kupperman, 735 F.2d 1139, 1146 (9th Cir. 1984), cert. denied sub. nom, 469 U.S. 1127 (1985).
B. Equal Protection
In his Sixth and Seventh Claims for Relief, Lt. Holmes alleges that the disparate treatment of homosexual and heterosexual service members under the Act and Directives constitutes a violation of his right to equal protection under the United States Constitution. As will be set forth below, the Court finds merit to this claim and concludes that the Act and Directives: (1) impermissibly discriminate against homosexual service members on the basis of sexual orientation as opposed to homosexual conduct; (2) fail to rationally further a legitimate governmental interest; and (3) are irrational as a matter of law because they are founded on and give effect to the prejudices and biases of others. These issues will be discussed seriatim.
1. The Rational Basis Test
The Equal Protection Clause of the Fourteenth Amendment commands that no State shall "deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. am. XIV § 1. This is essentially "a direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439, 87 L. Ed. 2d 313, 105 S. Ct. 3249 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216, 72 L. Ed. 2d 786, 102 S. Ct. 2382 (1982)); Jackson Water Works v. Public Utils. Comm'n, 793 F.2d 1090, 1092 (9th Cir. 1986), cert. denied, 479 U.S. 1102, 94 L. Ed. 2d 184, 107 S. Ct. 1334 (1987). Although the Fourteenth Amendment expressly applies only to the states, the protections afforded thereunder apply equally to federal legislation, albeit through the Due Process Clause of the Fifth Amendment. Cecelia Packing Corp. v. U.S. Dept. of Agriculture, 10 F.3d 616, 623-24 (9th Cir. 1993).
There are three levels of judicial review applicable to equal protection challenges: strict scrutiny, heightened scrutiny, and rational basis review. High Tech Gays v. Defense Indus. Security Clearance Office, 895 F.2d 563, 571 (9th Cir.), reh'g denied, 909 F.2d 375 (9th Cir. 1990). This Circuit has previously held that gays are not a suspect class, and therefore, classifications affecting homosexuals as a class are subject only to rational basis review. Id.
Under a rational basis framework, the relevant inquiry with respect to an equal protection challenge is whether the challenged action "rationally furthers a legitimate state purpose or interest." San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 55, 36 L. Ed. 2d 16, 93 S. Ct. 1278 (1973); United States v. Harding, 971 F.2d 410, 412 (9th Cir. 1992), cert. denied, 506 U.S. 1070, 122 L. Ed. 2d 170, 113 S. Ct. 1025 (1993). "If there is a rational relationship between the disparity of treatment and some legitimate governmental purpose," the discriminatory classification is presumed valid and must be sustained. Heller v. Doe, 509 U.S. 312, 113 S. Ct. 2637, 2642, 125 L. Ed. 2d 257 (1993). Notwithstanding the strong presumption of validity, "the standard of rationality . . . must find some footing in the realities of the subject addressed by the legislation." Id. at 2643.
The Court recognizes that in undertaking its analysis of plaintiff's equal protection claim, the judiciary must give deference to the military's judgment; the "military decisions by the Army are not lightly overruled by the judiciary." Pruitt v. Cheney, 963 F.2d 1160, 1166 (9th Cir. 1991), cert. denied, 506 U.S. 1020, 121 L. Ed. 2d 581, 113 S. Ct. 655 (1992); Rostker v. Goldberg, 453 U.S. 57, 65, 69 L. Ed. 2d 478, 101 S. Ct. 2646 (1980) ("it is difficult to conceive of an area of governmental activity in which the courts have less competence.") (quoting Gilligan v. Morgan, 413 U.S. 1, 10, 37 L. Ed. 2d 407, 93 S. Ct. 2440 (1973)). However, while military decisions are entitled to substantial deference, such deference should not be construed "to say that Congress is free to disregard the Constitution when it acts in the area of military affairs." Rostker, 453 U.S. at 67. The military is not the final arbiter of the constitutionality of its policies, and it must operate within the parameters established by statute and the Constitution. Id. ; Goldman v. Weinberger, 475 U.S. 503, 523, 89 L. Ed. 2d 478, 106 S. Ct. 1310 (1986) (Brennan, J., dissenting) ("It is not the province of the federal courts to second-guess the professional judgments of the military services, but we are bound by the Constitution to assure ourselves that there exists a rational foundation for assertions of military necessity.").
2. The Policy Unconstitutionally Discriminates on the Basis of Status
a. Conduct is Equated With Status
The threshold issue presented with respect to plaintiff's equal protection claim is whether the policy excludes service members only on the basis of homosexual conduct, or whether it discriminates against homosexuals based on their status (i.e., sexual orientation). In the context of military service, the Ninth Circuit has recognized that it is "constitutionally permissible" to exclude service members based on "homosexual conduct." Meinhold v. U.S. Dept. of Defense, 34 F.3d 1469, 1477 (9th Cir. 1994). This Circuit, however, has also held that a discharge based on the service member's "status as a homosexual" states an equal protection claim. Pruitt, 963 F.2d at 1164 (emphasis added); Meinhold, 34 F.3d at 1477.
The Federal defendants assert that the new policy addresses homosexual conduct, not homosexual status or orientation.
Yet, the actual language of the policy belies this assertion. The Directives define "sexual orientation " as "an abstract sexual preference for persons of a particular sex, as distinct from a propensity or intent to engage in sexual acts." DOD Directive 1332.30 at 1-2 (emphasis added). "Propensity to engage in homosexual acts means more than an abstract preference or desire to engage in homosexual acts; it indicates a likelihood that a person engages in or will engage in homosexual acts." Id. at 1-1 (emphasis added).
However, the policy further provides that a service member's or officer's statement "that he or she is a homosexual" by itself "demonstrates a propensity or intent to engage in homosexual acts, . . ." Id. at 2-1, 2-2. In other words, acknowledging one's homosexual orientation is equated with a "propensity" to engage in homosexual acts, which, in turn, is deemed sufficient to warrant expulsion from the military. The policy thus collapses that which it purports to treat as distinct. Certainly, if "orientation" or "status" and "propensity" are genuinely distinct concepts under the new policy, the former would not be used to define the latter. "Neither the Act nor the Directives explain how to differentiate an 'orientation' from a 'propensity,' although the Act's avowed policy to insure that 'homosexual orientation' not be treated as a 'bar' to service would seem to make such differentiation crucial." Able v. United States, 880 F. Supp. 968, 975 (E.D.N.Y. 1995) (emphasis added).
Tellingly, the military apparently recognizes the questionable nature of the distinction the policy attempts to create between status and conduct. During the Senate Committee hearings, the military conceded that the possibility that a service member can "have the orientation without the propensity" is only a "hypothetical" one. S. Hrg. 103-845 at 800. The military further recognized that a mere declaration of sexual orientation, such as "I am gay," is tantamount to homosexual conduct, even though there is no evidence of such conduct:
Senator COHEN: Okay. So let me come back to the final point. We have a situation, then, where a mere declaration that one is a homosexual, that is "conduct," under your interpretation of the rule that is going to be adopted.