Hybrid. Ruth Colker

under this broader exception. In addition, Beller, the “avowed bisexual” discharged under the first definition of homosexual could probably have fit under the exception.

      These regulations no longer permitted the military to discharge an individual entirely on the basis of his or her association with homosexuals, or his or her receipt of information about homosexuals. There would have to be a positive statement of identity through public acknowledgment of homosexuality or marrying someone of the same sex. These public statements would put the individual into the category of a “true homosexual.”

      These regulations, however, did not end the military’s legal troubles, because they continued to treat someone adversely based on status rather than conduct. The attempt to criminalize the status of an individual’s sexual orientation poses grave constitutional problems.³³ The government, however, did not want to limit itself to cases in which there was known homosexual conduct because it was threatened by individuals, such as benShalom, who were willing to publicly state their status as homosexuals. Those individuals were apparently more threatening to the military than individuals who engaged in homosexual conduct but expressed disdain at such conduct. Thus, the military created fewer status exceptions than conduct exceptions.

      The new regulations continued to give the military First Amendment problems in the “status” cases where there was evidence of identification but no evidence of homosexual conduct. Three cases raised that problem. In Woodward v. United States,³⁴ Watkins v. United States Army,³⁵ and the second round of benShalom v. Marsh,³⁶ individuals were discharged from the military because of their sexual status rather than sexual conduct. In each of these cases, there was no proof that the individual had engaged in homosexual acts. The only proof was that he or she identified as a homosexual. James Woodward acknowledged that he was sexually attracted to members of his own sex and sought the company of gay officers, but there was no finding that he had engaged in homosexual conduct.³⁷ Miriam benShalom publicly acknowledged she was a lesbian but there was no finding that she had engaged in homosexual acts.³⁸ Finally, Perry Watkins had always acknowledged that he was a homosexual but there was no finding that he had engaged in homosexual conduct.³⁹ The military wanted to discharge these individuals because they belonged to the ranks of the “true homosexual” but there was no evidence of homosexual conduct.

      In Woodward’s case, the military achieved its desired end by discharging him for reasons other than his homosexuality. Disciplinary proceedings were brought against Woodward because he visited an officer’s club in the company of an enlisted man who was awaiting discharge from the Navy because of homosexuality.⁴⁰ Woodward never acknowledged engaging in homosexual acts but did acknowledge that he identified as a homosexual.⁴¹

      On the basis of those statements, Woodward was recommended for discharge. The discharge, however, was not processed and, instead, Woodward was made available for reassignment or release from active duty. His file was then reviewed by a personnel officer. As a result of this review (which would not have taken place but for the allegation of homosexuality), the Navy determined that Woodward’s record placed him below the cutoff point for retaining a reservist.⁴² These “nonhomosexual” reasons were used to release him from reserve status. The Navy therefore did not have to defend its right to discharge him solely on the basis of his homosexual status by finding another explanation for his discharge.

      In the case of Sergeant Perry Watkins, the military did not resolve the status problem as successfully. It had known of Sergeant Watkin’s homosexuality for more than a decade, had no current evidence of homosexual conduct, and had no reason to 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