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HIGH TECH GAYS v. DEFENSE IND. SEC. CLEARANCE OFF.
895 F.2d 563 (1990)
HIGH TECH GAYS; Timothy Dooling, and all others similarly situated; Joel Crawford; and Robert Weston, Plaintiffs-Appellees,
v.
DEFENSE INDUSTRIAL SECURITY CLEARANCE OFFICE; Director, Defense Industrial Security Clearance Office; Defense Investigative Service; Director of Defense Investigative Service; Secretary of Defense, Defendants-Appellants.
No. 87-2987.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted December 16, 1988.
Decided February 2, 1990.
Jay S. Bybee, Appellate Staff, Civ. Div., U.S. Dept. of Justice, Washington, D.C., for defendants-appellants.
Richard Gayer, San Francisco, Cal., for plaintiffs-appellees.
Matthew A. Coles, San Francisco, Cal., for amicus, American Civ. Liberties Union of Northern California, Inc.
Stephen V. Bomse, Heller, Ehrman, White & McAuliffe, San Francisco, Cal., for amicus, National Gay Rights Advocates.
Before BRUNETTI and LEAVY, Circuit Judges, and CURTIS,* Senior District Judge.
BRUNETTI, Circuit Judge: The plaintiffs-appellees challenge whether the Department of Defense's (DoD) policy of subjecting all homosexual applicants for Secret and Top Secret clearances to expanded investigations and mandatory adjudications, and whether the alleged DoD policy and practice of refusing to grant security clearances to known or suspected gay applicants, violates the equal protection component of the Fifth Amendment's Due Process Clause and the rights of free association guaranteed by the First Amendment. In analyzing the equal protection challenge, the district court concluded that "gay people are a `quasi-suspect class' entitled to heightened scrutiny," High Tech Gays v. Defense Industrial Security Clearance Office,668 F.Supp. 1361, 1368 (N.D.Cal.1987), and that the DoD security clearance regulations "must withstand strict scrutiny because they impinge upon the right of lesbians and gay men to engage in any homosexual activity, not merely sodomy, and thus impinge upon their exercise of a fundamental right." Id. at 1370. The district court rejected the reasons proffered by the DoD to justify its policies and found the absence of even a "rational basis for defendants' subjecting all gay applicants to expanded investigations and mandatory adjudications while not doing the same for all straight applicants." Id. at 1373. The district court therefore concluded that the DoD policy violates the Constitution and granted summary judgment to the plaintiffs. We reverse the part of the district court's order granting summary judgment to the plaintiffs, vacate the part denying summary judgment to the DoD, and remand to enter summary judgment in favor of the DoD. I.BackgroundA.This appeal involves a class action1 challenging the mandatory investigation of all homosexual2 applicants seeking a Secret or Top Secret clearance. The clearance process begins when the defense contractor
forwards an individual's name to the DoD for Secret or Top Secret clearance. 32 C.F.R. §§ 154.30, .31 (1987).3 For a Secret clearance, the Defense Industrial Security Clearance Organization (DISCO) conducts a National Agency Check (NAC), which consists at a minimum of a record check of the Federal Bureau of Investigation and the Defense Central Intelligence Index, but may also include a record check of the Office of Personnel Management, the Immigration and Naturalization Service, the State Department, and the Central Intelligence Agency. 32 C.F.R. § 154.3(m); DoD 5200.2-R, app. B (1979). For Top Secret clearance, the Defense Investigative Service (DIS) completes a Background Investigation (BI) for each applicant, which consists of a NAC, local records check, and interviews with personal sources.
* Honorable Jesse W. Curtis, Senior United States District Judge, Central District of California, sitting by designation. 1. The plaintiff class consists of:
All gay persons who, since January 1982, have applied for, are now applying for, or may in the future apply for Secret or Top Secret industrial clearances from DISCO, in any of the eight DIS regions in the country, and all gay persons who, since January, 1982, have held, now hold, or may in the future hold such clearances. 2. Throughout this opinion, the term "homosexual" is used synonymously with the terms "lesbian" or "gay." 3. All references to the C.F.R. are to the 1987 edition unless otherwise noted. 4. 32 C.F.R. § 154.7 provides in pertinent part:
The criteria for determining eligibility for a clearance under the security standard shall include, but not be limited to the following: (a) Commission of any act of sabotage, espionage, treason, terrorism, anarchy, sedition, or attempts thereat or preparation therefor, or conspiring with or aiding or abetting another to commit or attempt to commit any such act. (b) Establishing or continuing a sympathetic association with a saboteur, spy, traitor, seditionist, anarchist, terrorist, revolutionist, or with an espionage or other secret agent or similar representative of a foreign nation whose interests may be inimical to the interests of the United States, or with any person who advocates the use of force or violence to overthrow the Government of the United States or to alter the form of Government of the United States by unconstitutional means. (c) Advocacy or use of force or violence to overthrow the Government of the United States or to alter the form of Government of the United States by unconstitutional means. (d) Knowing membership with the specific intent of furthering the aims of, or adherence to and active participation in any foreign or domestic organization, association, movement, group or combination of persons (hereafter referred to as organizations) which unlawfully advocates or practices the commission of acts of force or violence to prevent others from exercising their rights under the Constitution or laws of the U.S. or of any State or which seeks to overthrow the Government of the U.S. or any State or subdivision therefor by unlawful means. (e) Unauthorized disclosure to any person of classified information, or of other information, disclosure of which is prohibited by statute, Executive Order or regulation. (f) Performing or attempting to perform one's duties, acceptance and active maintenance of dual citizenship, or other acts conducted in a manner which serve or which could be expected to serve the interests of another government in preference to the interests of the United States. (g) Disregard of public law, statutes, Executive Orders or regulations including violation of security regulations or practices. (h) Criminal or dishonest conduct. (i) Acts of omission or commission that indicate poor judgment, unreliability or untrustworthiness. (j) Any behavior or illness, including any mental condition, which, in the opinion of competent medical authority, may cause a defect in judgment or reliability with due regard to the transient or continuing effect of the illness and the medical findings in such case. (k) Vulnerability to coercion, influence, or pressure that may cause conduct contrary to the national interest. This may be (1) The presence of immediate family members or other persons to whom the applicant is bonded by affection or obligation in a nation (or areas under its domination) whose interest may be inimical to those of the United States, or (2) Any other circumstances that could cause the applicant to be vulnerable. (l) Excessive indebtedness, recurring financial difficulties, or unexplained affluence. (m) Habitual or episodic use of intoxicants to excess. (n) Illegal or improper use, possession, transfer, sale or addiction to any controlled or psychoactive substance, narcotic, cannabis or other dangerous drug. (o) Any knowing and willful falsification, coverup, concealment, misrepresentation, or omission of a material fact from any written or oral statement, document, form or other representation or device used by the Department of Defense or any other Federal agency. (p) Failing or refusing to answer or to authorize others to answer questions or provide information required by a congressional committee, court, or agency in the course of an official inquiry whenever such answers or information concern relevant and material matters pertinent to an evaluation of the individual's trustworthiness, reliability, and judgment. (q) Acts of sexual misconduct or perversion indicative of moral turpitude, poor judgment, or lack of regard for the laws of society. 5. The DoD guidelines at the time instructed companies not to submit Top Secret applications to the Department absent compelling need if the application contained information — including homosexuality — which would result in lengthy delays. DoD guidelines no longer instruct companies to withhold applications containing information regarding homosexuality. See Weston v. Lockheed Missiles & Space Co.,881 F.2d 814, 815 (9th Cir.1989). 6. "The Constitution, in light of Hardwick, cannot otherwise be rationally applied, lest an unjustified and indefensible inconsistency result." Ben-Shalom, 881 F.2d at 464-65. "After Hardwick it cannot logically be asserted that discrimination against homosexuals is constitutionally infirm." Woodward, 871 F.2d at 1076. "It would be quite anomalous, on its face, to declare status defined by conduct that states may constitutionally criminalize as deserving of strict [or heightened] scrutiny under the equal protection clause.... If the Court was unwilling to object to state laws that criminalize the behavior that defines the class, it is hardly open to a lower court to conclude that state sponsored discrimination against the class is invidious. After all, there can hardly be more palpable discrimination against a class than making conduct that defines the class criminal." Padula, 822 F.2d at 103 (citations omitted). 7. In Beller, in deciding whether the Navy's regulations, which provided for discharge of persons in the service engaging in homosexual activities, violated the substantive due process guarantees of the Fifth Amendment, we stated that the case was "somewhere between" the lowest tier of equal protection scrutiny — a rational relation to a legitimate government interest — and where the government seriously intrudes into matters which deserve due process protection. Beller, 632 F.2d at 808-09. We stated that in light of the authorities reviewed (at that time), the reasons which led the Supreme Court to protect certain private decisions intimately linked with one's personality suggest that some kind of government regulation of private consensual homosexual behavior may face substantial constitutional challenge. We further noted that certain cases may require resolution of whether there is a right to engage in consensual homosexual behavior, but that in the instant case (Beller) involving a military regulation which prohibited homosexual conduct of persons in the service, "the importance of the government interests furthered, and to some extent the relative impracticality at this time of achieving the Government's goals by regulations which turn more precisely on the facts of an individual case, outweigh whatever heightened solicitude is appropriate for consensual private homosexual conduct." Id. at 810. 8. After Hardwick was decided, we were presented with an equal protection challenge to the CIA's policy of allegedly discriminating against homosexuals in making security clearance determinations. Dubbs v. Central Intelligence Agency,866 F.2d 1114 (9th Cir.1989). The plaintiff in Dubbs alleged that the CIA had violated her constitutional rights by 1) enforcing a policy of refusing security clearances to all homosexuals and 2) considering homosexual conduct, but not heterosexual conduct, a negative factor in individual security clearance determinations. With regard to plaintiff's first claim, we expressed no opinion on the constitutionality of the CIA's alleged blanket policy against homosexuals. Id. at 1119. Further, since this case involves no allegation of a blanket policy of refusing to issue security clearances to homosexuals, Dubbs' resolution of this first claim is not relevant to this case. With regard to plaintiff's second claim, we reversed the district court's grant of summary judgment to the defendant because the district court had improperly refused to consider the merits of plaintiff's constitutional claim. Id. at 1119-20. However, we did not address the merits of plaintiff's constitutional challenge nor did we express an opinion on the applicable level of scrutiny. Id. Thus, Dubbs does not affect the outcome of this case. 9. In Watkins II, the majority specifically declined to reach the constitutional equal protection issues concerning homosexuality raised by the panel opinion. Watkins II, 875 F.2d at 705. We instead relied upon equitable estoppel, holding that the Army was estopped from refusing to reenlist Watkins on the basis of his homosexuality. Id. at 711.
Judge Norris' concurrence in Watkins II, joined by Judge Canby, expresses the opinion that homosexuals constitute a suspect class, arguing that the Hardwick Court's concerns about substantive due process have little or no relevance to equal protection doctrine. See id. at 716-28 (Norris, J. concurring). We disagree. As discussed in the main text of this case, under Bolling the equal protection guarantees of the Fourteenth Amendment are applied to federal statutes, regulations, and actions through the Fifth Amendment's Due Process Clause. Bolling, 347 U.S. at 499, 74 S.Ct. at 694. The two are thus intertwined for purposes of equal protection analyses of federal action. This is perhaps no more clearly seen than in Schlesinger v. Ballard,419 U.S. 498, 505-07, 95 S.Ct. 572, 576-77 42 L.Ed.2d 610 (1975), in which the Supreme Court, in considering a Fifth Amendment due process challenge, compared Frontiero v. Richardson,411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973) (federal military gender-based classification based solely upon considerations of administrative convenience violates Fifth Amendment Due Process Clause) and Reed v. Reed,404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971) (state gender-based classification based solely upon considerations of administrative convenience violates Fourteenth Amendment's Equal Protection Clause), and found that "both ... were premised on overbroad generalizations that could not be tolerated under the Constitution." Schlesinger, 419 U.S. at 507, 95 S.Ct. at 577. The Watkins II concurring opinion's conclusion that homosexuals constitute a suspect class is also based in part on an analysis distinguishing Hardwick as a "conduct" rather than an "orientation" case. However, this differentiation is not relevant to this case, as the DoD regulations challenged by the plaintiffs all relate to conduct. See DIS 20-1-M (1985). 10. For example: Wisconsin has a comprehensive statute barring employment discrimination on the basis of sexual orientation, Wis.Stat.Ann. §§ 111.31-.395 (West 1988); California has barred violence against persons or property based on sexual orientation, Cal.Civ.Code § 51.7 (West 1984); and Michigan has barred the denial of care in health facilities on the basis of sexual orientation), Mich.Comp.Laws Ann. § 333.20201(2)(a) (West 1984). Executive Orders in other states prohibit such discrimination. See e.g., N.Y.Comp.Codes R. & Regs. tit. 4, § 28 (1983) (barring discrimination in state employment or in the provision of state services and benefits on the basis of sexual orientation). Many cities and counties have also enacted anti-discrimination regulations, including New York, Los Angeles, Chicago, Washington D.C., Atlanta, Boston, Philadelphia, Seattle, and San Francisco. Developments in the Law, Sexual Orientation and the Law, 102 Harv.L.Rev. 1509, 1667-68, n. 49-51 (citations omitted). 11. We recognize that the denial of DoD's motion for summary judgment is not a final decision of the district court and thus, under normal circumstances, would not be appealable. However, because we have jurisdiction to decide DoD's appeal from the granting of plaintiffs' motion for summary judgment, we exercise our discretion to decide their claim of error in the denial of their summary judgment motion as well. See Barhold v. Rodriguez,863 F.2d 233, 237 (2nd Cir.1988). 12. Mr. Barron's qualifications are listed to include (1) considerable research in the field of KGB organization and operations, (2) the conducting of debriefings of senior members of the KGB upon their defection to the West, (3) the publication of several volumes dealing specifically with the KGB, and (4) his delivery of lectures on the subject of the KGB to professional intelligence officers of both the United States and its allies. 13. The DoD advances other justifications for its policy: a homosexual may be emotionally unstable and homosexual conduct may be criminal. Because we conclude that the targeting of homosexuals by hostile intelligence agencies is a legitimate if not compelling justification for the expanded investigations, we need not address these additional justifications. 14. Despite evidence that attitudes toward homosexual conduct have changed among some groups in society, the Navy could conclude that a substantive number of naval personnel have feelings regarding homosexuality based upon moral precepts recognized by many in our society as legitimate, which would create tensions and hostilities, and might undermine the ability of a homosexual to perform supervisory duties. Beller, 632 F.2d at 811. 15. As noted above and admitted in plaintiffs' complaint above, DISCR granted Dooling's clearance in May 1984 without further investigation or other proceedings. See Third Amended Complaint, para. 11, at 7.
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