HTG vs DISCO
For obvious reasons "High Tech Gays vs DISCO" is probably the best-named federal court case ever. It was a very important gay rights case and we
include this separate section in this High Tech Gays web site to provide
information about that lawsuit - a federal lawsuit that High Tech Gays became
co-defendants in 1984. The suit was oficially called “High Tech Gays v. Defense Investigative Security Clearance Office (High Tech Gays vs D.I.S.C.O).” Most of the historical information presented below originated from our HTG newsletters and San Francisco bay area newspapers.
The suit initially culminated in a very positive ruling by US
District Court Judge Henderson in August 1987 supporting the rights of
gays and lesbians to be treated the same as heterosexuals in the
security clearance process. Unfortunately the 9th Circuit Court of
Appeals overturned that ruling in February of 1990. Thankfully that
reversal was made irrelevant in 1995 by Executive Order of President
Clinton, who barred the Federal government from denying security
clearances on the basis of sexual orientation. But in that 1990 9th
Circuit Court reversal another antigay ruling was added to
opponent’s arsenal against gay rights. Specifically part of 9th Circuit
ruling was: “homosexuals do not
constitute a suspect or quasi-suspect class entitled to greater than
rational basis scrutiny.” So, in other words, as ruled by the 9th
people are not a "suspect class," a group subject to discrimination or
in summary since they “don’t exist”, civil rights for them do not
apply, meaning, the security clearance process can be handled
differently for them. Of course also added was the usual "gay
people can be blackmailed".
In July 2012 when the repeal of Proposition 8 (California’s anti gay marriage
initiative) was being debated in the Supreme Court, the above mentioned ruling of that 9th Court
HTG vs DISCO was used as an argument against gay rights by our
opponents to re-instate the anti gay marriage
proposition 8 in California. Fortunately the Supreme Court did not agree and
Proposition 8 was overturned and gay marriage was legal in California.
Here is the wording of the argument that failed at the Supreme Court: "To the extent Proposition 8 draws a
distinction based on sexual orientation, it is subject only to rational
basis review under the Equal Protection Clause. Like every other
federal court of appeals to address the issue, the Ninth Circuit has
squarely held that “homosexuals do not constitute a suspect or
quasi-suspect class entitled to greater than rational basis scrutiny.”
E.g., High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d
563, 574 (9th Cir. 1990). Specifically, it has held that suspect or
quasi-suspect classification requires a showing that a group (1) has
suffered a history of discrimination, (2) is defined by an immutable
characteristic, and (3) is politically powerless, and that gays and
lesbians do not satisfy the second and third requirements."
HTG vs DISCO Lawsuit Early History:
The federal lawsuit High Tech Gays v. Defense Investigative Security
Clearance Office (DISCO) began in 1984 and initially culminated in a
very positive ruling by US District Court in August 1987 supporting the
rights of gays and lesbians to be treated the same as heterosexuals in
the security clearance process. As stated above the 9th Circuit Court
of Appeals overturned the ruling in February of 1990. The court also
ruled that the Defense Department’s discrimination was permissible
because “counterintelligence agencies target homosexuals.” That
conclusion was based on “evidence,” supplied by the department itself,
that sexuality was one of several “human weaknesses, indiscretions and
vices,” along with alcohol and drug abuse and financial problems, that
foreign governments had consistently sought to exploit.
Of course there had been a long history of federal and state
discrimination against gay Americans and negative decision in 1990 of
the 9th Circuit Court of Appeals was no surprise.
Chronological history of the High Tech Gays vs DISCO from HTG newsletters and newspaper articles:
At the May 1984 High Tech Gays meeting
one of the speakers was Timothy Dooling, an HTG member. Tim was a
former officer in the United States Army and was one of the first
victims of the new DoD policy on homosexuality. He told us about
encountering harassment from the Defense Investigative Service and
DoD in the processing of a secret security clearance request made by
his employer, Lockheed Missiles and Space Company, Inc., a company that
required a secret clearance as a condition of employment. The reason he
was being harassed was that the Defense Industrial Security Clearance
Office (DISCO), which had recently undergone a change in leadership,
contended that, solely because he is gay, he was an extortion risk.
Tim wanted to challenge the DoD's discriminatory policies, and
requested our assistance in finding other gay applicants for security
clearances who had encountered delays in
the processing of their
clearances, or who were being denied clearances, regardless of level,
solely on the basis of being gay, or
in cases where denial or delay
was primarily related to sexual preference.
The challenge could
be in the form of a class action lawsuit if others
joined the suit, and, to provide the widest possible application of any
judgment obtained in our favor, it would be necessary to have as many
different specific cases to point to in order that the pattern of
discrimination specifically be established and clearly shown for what
At a later HTG meeting,
HTG members John Greer and Tim Dooling continued the discussion of DoD
security clearances and what it was like to go through the screening
procedure. Tim had retained gay civil rights lawyer Richard (Dick)
Gayer to bring suit against the Defense Industrial Security Clearance
Office ("DISCO") over Tim’s failure to obtain a security clearance in a
reasonable length of time. HTG invited Richard Gayer, Tim
Dooling's lawyer, to our August meeting to continue the discussion.
Many HTG members worked for defense contractors that required security
clearances, so we planned at our August 12th meeting to review the suit
and determine HTG's position relative to joining as "lead plaintiff."
Some background on Dick Gayer: Mr. Gayer was the lawyer responsible for
the creation and litigation of the 1979 California Supreme Court
decision entitled "Gay Law Students Association v. Pacific Telephone
& Telegraph Company", in which the Court ruled that out front gay
people are protected from private employment discrimination under
California Labor Code provisions on political activities. He formed the
Gay Law Students Association at Hastings College. He had litigated a
class action lawsuit against the CIA regarding its refusal to grant
special access security clearances to known or suspected gay people.
August 12, 1984, Dick
Gayer, reviewed with us Tim’s failure to obtain a security clearance in
a reasonable length of time. Gayer said that DISCO normally runs a
simple computer check to see if the applicants have prior criminal
records and then grants the security clearance.
however, the agency always refers them to the Defense Investigation
Service for review. Investigators working for that service use a manual
that specifically singles out homosexuals for discrimination. The
manual asserted that homosexuals are security risks, more subject to
blackmail than other people. Gayer argued that the Defense Department
knows that homosexuals are not more subject to black- mail. A study
done for the secretary of the Navy in 1957 found no proof that
homosexuals are a security risk and noted that the number of blackmail
cases against them had been "negligible," he said Defense Department
representatives have dented discrimination against homosexuals, Gayer
said "They've said that for a long time though."
This inequality was the basis of the suit. Dick and Tim asked for HTG's
support by joining in the suit as co-plaintiff, and after heated
debate, HTG voted to join the suit. The name would become High Tech
Gays VS D.I.S.C.O. High Tech Gays, et al. v. Defense Industrial
Security Clearance Office.
Wednesday, August 29, 1984
Dick Gayer filed the formal complaint against DoD and the Defense
Industrial Security Clearance Office (DISCO), followed by a formal news
conference in the press room of the San Francisco Federal Building.
They (Tim Dooling, Rick Rudy representing HTG and Dick Gayer) received
coverage on Channel 4 news at 6 and 11 pm as well as news stories in
the Examiner, Chronicle, S.J. Mercury, Peninsula Times Tribune, and
Aug 30, 1984 Peninsula Times News:
DISCO grants all needed security clearances to employees of companies
that work on Defense Department contracts. The Defense Investigation
Service is the agency that investigates questionable applications for
clearance. Officials of the agency could not be reached to comment on
The year-and-a-half- old High Tech Gays group, which be described as
"basically a social organization" of about 100 Silicon Valley
employees, decided to sue this time because DISCO named the group in
its written decision delay and investigate Dooling's application.
Security clearance application forms do not ask applicants whether they
are born homosexual. They ask applicants to list the organizations they
Gayer said DISCO could have known Dooling was homosexual either by his
affiliation with High Tech Gays. Richard Rudy, president of High Tech
Gays, said delays in getting a security clearance could jeopardize
people's job security. "Someone like Tim gets hired by Lockheed to do a
secured task." Rudy said. "If delays drag on and on, he cannot do the
security work for which he was hired."
Companies, however, sometimes must let people go if they cannot get security clearance quickly enough.
San Jose Mercury Aug 31,1984 By S.1- Wykes Kett:
A group of Silicon Valley gays is suing an agency of the Defense
Department to stop it from refusing security clearances to gays.
The suit, filed Wednesday in U.S. District court in San Francisco,
claims that the Defense Industrial Security Clearance Office in
Columbus Ohio, treats clearance applications from gays in the same
manner as it would applications from "alcoholics criminals and
psychotics," said attorney Rickard Gayer.
Gayer is representing High Tech Gays, a social organization of over 100
electronics and engineering professionals. DISCO processes Security
clearances for private companies working on classified Defense
Department projects. Gayer said that the agency's consistent denial of
clearance to homosexuals permanently brands them a federal index as
“unreliable and untrustworthy employees”.
The suit also names so a defendant Defense Investigative Services, a
Defense Department arm that investigates applicants for secret and top
secret clearances and refers its findings to DISCO.
In particular the suit claims discrimination against Tim Dooling, a
member of High Tech Gays who is a nuclear fusion engineer with Lockheed
Missiles and Space Co. in Sunnyvale.Dooling was granted a security
clearance from the Army less than a year before applying for a similar
clearance through Lockheed.Defense Department regulations allow
conversion of Army clearances to industrial security clearances. But
Dooling says that instead of verifying that clearance, DISCO began an
extensive and unjustifiable investigation of his background, normally
only for the highest level of security clearance.
The suit claims that a memorandum from DISCO referred Dooling's case to
a higher review board and recommended be not be granted the clearance
because he had disclosed that “he belongs to a gay organization (High
Tech Gays) that he has homosexual activity with casual acquaintances
that he intends to continue his homosexual lifestyle. Dooling was
granted clearance by that higher review board.
“What we have here is a tradition that says 'we don’t like gays because
we don’t like gays,' - said Gayer. 'What DISCO wanted is for homosexual
applicants to go straight.”
The 27-yearold Dooling is an ex-Army intelligence officer who was
discharged from the service after be revealed his homosexuality.
“In the army they grant clearances to 18 year olds who don’t even
shave,” he said "I was raised to believe that you judged people we
their merits — that if you worked hard, you would be rewarded."
Official at DISCO declined to comment on the suit until they had been able to review it. The agency has 60 days to respond.
San Francisco Chronicle Aug 30, 1984:
Silicon Valley Gays Sue U.S. Over Red Tape. A group of Silicon
Valley high-tech specialists sued a branch of the Department of Defense
yesterday to speed security clearances for gay people.
The suit, filed in U.S District Court in San Francisco by an
organization called High Tech Gays claims the Defense Industrial
Security Clearance Office causes delays of up to a year in granting a
secret security clearance to gays, a process that usually takes six
The suit charges that the clearance delay causes some private employers
with defense contracts to hesitate to hire or keep gay employees.
The suit says such a long delay violates gays' rights to freedom of
speech and association, equal protection and due process of law.
Nov 84 HTG Newsletter: On
August 29 HTG and Tim Dooling filed suit against the Department of
Defense DISCO group for discrimination in granting Secret and Top
Secret security clearances to gay people. The Feds had 60 days to
respond to the suit.
Last week the Government attorneys contacted our attorney, Richard
Gayer, to request an extension of the time to respond. Dick decided
this was a good moment to negotiate, and agreed to a thirty day
extension if we would be allowed to add the Secretary of Defense
(Casper Weinberger) to the defendants in our suit. This was agreed to
by both parties.
Dick expects the Feds to move for dismissal on Nov 30, and a court
hearing has been set, in anticipation of such a move, for December 31 .
Jan 1985 HTG Newsletter: In December, U.S. Attorney Joseph P.
Russoniello and Assistant U.S. Attorney Stephen L. Schrile submitted a
23 page response to our class action suit, requesting dismissal of our
The crux of their argument is summarized as follows: "Plaintiff's
complaint should be dismissed with prejudice. First, plaintiffs lack
standing to bring this class action since neither named plaintiff
alleges direct, actual injury. Plaintiff Dooling remained continuously
employed at Lockheed throughout the time his application was being
reviewed, and after this review, he received his industrial security
clearance. Similarly, plaintiff High Tech Gays fails to allege actual
injury either to itself or any of its members. Second, plaintiffs have
failed to allege the prerequisites for invoking this court's equity
jurisdiction - irreparable injury and an inadequate legal remedy.
Third, the doctrine of separation of powers bars plaintiffs' claims
because the broad equitable relief sought by plaintiffs is an
inappropriate intrusion by the judiciary into the security clearance
functions o f the executive. Forth, sovereign immunity defeats
plaintiffs' claims because the United States has not consented to this
suit and the relief sought would place an intolerable burden on the
government. In any event, plaintiffs' fail to establish a
constitutional violation since the policies alleged are supported by a
Each of the points is copiously annotated with legal precedents. The
court has set February 4 for a hearing to decide whether to hear the
suit or dismiss it.
Our attorney says that there is a skirmish going on now to pick a judge
to hear this issue. Judge Thelton Henderson was selected, but the case
may be turned over to Judge Samuel Conti since he has ruled on gay
rights issues (unfavorably) before. If Judge Conti takes over and rules
to dismiss, we will appeal to the Ninth Circuit Court which is
notoriously liberal and often reverses Judge Conti's rulings. And you
thought this was a piece of cake! Dick Gayer still seems confident, so
we are standing tall beside him. More to follow as it happens . . .
February 1985 HTG Newsletter:
Our suit against the Department of Defense DISCO took a turn for the
better recently when Judge Samuel Conti refused to take over the case
from Judge Henderson. Had Judge Conti taken the case, he probably would
have dismissed it out of hand, requiring us to go through the various
As it stands now, our case will get its first hearing on Monday
February 4 at 10:00 AM in the San Francisco Federal Court Building. At
that time, the US Attorney will move for dismissal and Judge Henderson
will hear arguments from both sides. Interested HTG members are welcome
to attend the hearing.
March 1985 HTG Newsletter: DISCO
Update: Our attempt to qualify HTG as a suitable co-plaintiff was
unsuccessful. We were unable to identify a sufficient number of members
who had also experienced discrimination obtaining security clearances
from DISCO. As an alternative strategy, our attorney Dick Gayer is
amending our complaint to qualify HTG under a different premise.
On the bright side, the suit has been joined by two individual
co-plaintiffs: Joel Crawford and Bob Weston. This will help strengthen
our case. The interrogatories are due March 20. More news to come...
April 1985 Newsletter: DISCO
Update: Only one of the six members who volunteered to help establish
suitability for HTG as a co-plaintiff was acceptable. Therefore, our
attorney Dick Gayer is making a new application under a different
premise. On the brighter side, DISCO has expressed a willingness to
settle out of court. The members at the March HTG meeting approved a
motion giving Dick the authority to conduct such negotiations.
Aug 1985 Newsletter: Judge
Thelton Henderson granted a motion to grant class action status to our
suit. The class consists of "all gay persons who, since January 1982,
have applied for, or are applying for, or may in the future apply for
Secret or Top Secret industrial clearances from DISCO in any of the
eight regions in the country, and all gay persons who, since January
1982, have held, now hold, or may in the future hold such clearances."
In addition, Judge Henderson ruled to keep High Tech Gays in the title
of the suit, even though we are no longer plaintiffs in the case.
Congratulations to Dick Gayer on this important victory!
As named plaintiff in this suit, HTG has received substantial
publicity. However, we have not really helped the cause. All gay people
will benefit from a favorable ruling. We have come too far to loose
now! Your help is needed. Lawsuits are expensive. At the August 8th
meeting we will be collecting your contributions. Any amount you can
afford ($5, $10, $20) will help. The money will be channeled through
Dick Gayer to cover legal expenses. Please be generous. We really do
need your assistance.
In other legal action, Dick Gayer has been retained by HTG member
Robert Weston in a suit against Lockheed Missies and Space Company. The
suit charges Lockheed with failure to forward Robert's application for
a Top Secret clearance to the government for review. It alleges that
Lockheed discriminates against gay people by secretly withholding their
paperwork without proper cause. HTG's PABAC sent a letter to Lockheed
concerning this matter in May. We received no reply.
Sept 1985 HTG Newsletter:
During the last meeting, a collection was taken for HTG's Social Action
Fund. Several "ushers" walked through the audience collecting $586.00.
A motion was passed to contribute an additional $300.00 from HTG's
general fund. This money will be used for legal expenses in the DSICO
suit. Thank you for your generosity. This is an important case in the
fight for gay rights. Your assistance is both needed and appreciated.
Tim Dooling's employment at Lockheed was terminated recently for
reasons which Lockheed claims are independent of Tim's sexuality. Tim
filed a complaint under California's Labor Code (1102), which has been
used to protect the rights of gay employees by equating 'coming out' at
work to making a political statement.
Oct 1987 Newsletter: In
papers filed in Federal District Court on September 2, 1987, US
Attorney Joseph Russoniello moved for reconsideration of High Tech Gays
vs DISCO. Russoniello cited new evidence, including recently released
testimony by convicted Marine Corps spy Sgt Clayton Lonetree, as
justification for a rehearing.
In a ringing defense of civil liberties, Judge Thelton Henderson on
August 19 had ordered that the Government cease "subjecting [gays] to
expanded investigations [for security clearances]... based upon sexual
orientation, homosexual activity or membership in a gay organization."
Plaintiff Tim Dooling had been denied his clearance, in part, because
of admitted membership in High Tech Gays.
In his order, Henderson stated that there was no evidence that gays
were especially subject to entrapment by foreign agents because of
their homosexuality. Russoniello submitted statements from Sgt
Lonetree, a convicted spy, John Donnelly, Assistant Deputy of Defense
for Counterintelligence and Security Policy, and John Barron, a
government "expert" on Soviet intelligence operations, all attempting
to refute Judge Henderson.
Lonetree is quoted as saying, "[the KGB] also asked me about the other
Marines...[they] wanted to know what Marines had problems with alcohol
or drugs or those who were homosexual." But no homosexual activity was
ever mentioned as being relevant to the Lonetree spy case; heterosexual
activity, however, was.
John Donnelly submitted a declaration in which he states, "I am aware
of the established 'modus operandi' of hostile intelligence services...
"Hostile intelligence efforts directed at the recruitment of
individuals often involve the exploitation of what those agencies
consider to be human weaknesses, indiscretions and vices. Hostile
intelligence agencies, with great consistency, consider sexuality to be
a potentially exploitable vulnerability. This does not mean that
hostile intelligence always seek out homosexuals to target. Rather,
they usually spot individuals with the desired access and then assess
them in order to determine the most effective approach... "Blackmail
may sometimes be used after the person is already compromised, but
generally the initial efforts of exploitation center around enticing
the targeted individual with money..."
Not much of a convincing argument against gays.
He also cited a case of a member of the US military whom the KGB
threatened to expose because they discovered she was a homosexual.
However Donnelly concedes "the subject refused to cooperate and,
instead, contacted the proper US authorities."
Donnelly also admitted that an ongoing study has been unable to develop
a satisfactory "profile" for a potential spy. In total, Donnelly's
arguments seemed to bolster HTG's case rather than harm it, and nowhere
was there any sup- port for his conclusion that "the court's order
creates a substantial potential for grave harm to our national
John Barron's testimony is reported via Francis R. Short, US Marine
Corps Judge Advocate. "The KGB will attempt to identify those who are
ideologically sympathetic, experiencing career difficulties,
unsuccessful in social relationships, or experiencing problems with
narcotics, alcohol, homosexuality, or marital difficulties." Barron
also cited a Canadian Ambassador to the Soviet Union who had been
entrapped by the KGB through the exploitation of a homosexual
Russoniello argues that these fact are new and sufficient cause for
reconsideration. However, should Henderson deny the request,
Russoniello also prepared papers requesting a stay of the Order pending
a decision from the Solicitor General on whether or not to appeal the
Dick Gayer, attorney for High Tech Gays, will submit written arguments
opposing Russoniello's motions in mid September. When questioned, Gayer
stated that the submitted declarations support the position that
heterosexuals need more scrutiny than gays. He expects Judge Henderson
will neither reconsider his Order nor grant a stay, forcing the US
Attorney to seek the stay from the Ninth Circuit Court which would have
to hear the appeal, if one is filed.
San Jose Mercury News, Aug 20, 1987: A
federal judge has banned additional investigations of homosexuals who
seek Defense Department security clearances for civilian jobs.
"We couldn't be more pleased," said Rick Rudy, speaking for High Tech
Gays, a Silicon Valley organization that filed a lawsuit in 1984
seeking a court order to stop the expanded investigations.
In his ruling Wednesday, U.S. District Judge Thelton Henderson granted
the group's request, rejecting a series of government rationales for
its policy. The judge said there was "no rational basis for subjecting
all gay applicants to expanded investigations while not doing the same
for all straight applicants."
The department's policy is "founded upon deep-seated prejudice,"
perpetuates "archaic stereotypes" and "casts gay people as innately
inferior," said Henderson.
Richard Gayer, a lawyer for High Tech Gays, said the ruling was "a
landmark" that could immediately affect as many as 1,000 homosexuals
The Defense Department refers all applications from homosexuals for
secret or top-secret clearances for civilian jobs to a special office
for expanded review. Even if a clearance is ultimately granted,
Henderson said, the process typically takes much longer.
"A long delay in the granting of clearance is just as good as a denial
because a gay person cannot get a clearance in a reason-able time. the
employer Is likely to lay him or her off." said Gayer
“Many people had avoided public disclosure that they are homosexual to
avoid the government checks,” said Rudy, whose organization has about
700 members with 10 percent of them requiring security clearances."It
was a but depend on the individual and on the company." he said.
Applications are not necessarily denied on the basis at homosexuality
but Henderson said two of the three individual plaintiffs in the case
were unable to get security clearances, the third plaintiff, Lockheed
employee Timothy Dooling, had his clearance approved after a year, but
by then the company had laid him off.
In his ruling, the judge said there was no evidence that homosexuals
were "particularly subject t o blackmail " He said no such evidence was
produced by the FBI or the Defense Intelligence Agency at a1985 Senate
hearing, out of 40 significant espionage cases described at the
hearing, only two involved homosexuals and neither was blackmailed,
He also said the government had no grounds to argue that those who
concealed homosexual conduct or preference might be bad security risks.
All people have a part of their lives that they prefer to keep private,
Henderson said, In addition, he said, under the government policy,
failure to volunteer information about homosexual conduct is considered
The government's contention that homosexuals disapproval is based on
stereo- types that have been rejected by modern psychology, Henderson
He also said the department violated the constitutional right to
freedom of association by ordering an expanded investigation for an
applicant because of his member ship in a gay organization.
January 1988 HTG Newsletter:
On November 24, U.S. Attorney Joseph Russoniello filed a formal Notice
of Appeal to the 9th Circuit Court of Appeals in the case of High Tech
Gays vs. DISCO (Defense Investigative Security Clearance Organization),
confirming our expectation that the government would appeal the
decision from Judge Henderson last August.
Attorney Dick Gayer expects the Federal briefs to be submitted in
February or March; our response in April; their counter brief in May;
oral hearing together; and a ruling possibly by January, 1989.
We will keep you up to date!
Feb 1988 HTG Newsletter: An
article by Lou Chibbaro in The Washington Blade brings us news about
some changes in DISCO policy brought about by the HTG v. DISCO suit.
According to the story, a memorandum written by John F. Donnelly,
Assistant Deputy Under Secretary of Defense for Counterintelligence and
Security, dated October 23, 1987, orders DOD investigators to comply
with Judge Thelton Henderson's ruling not to enquire into the sex lives
of gay applicants for security clearances.
"Investigative personnel simply must refrain from questioning
homosexuals concerning irrelevant details of their sexual activities...
Obviously, criminal or notorious activities must be pursued to a
logical conclusion, but details concerning such things as positions and
'who-did-what-to-whom' are of no consequence to any of the adjudicative
criteria in the DOD Personnel Security Program and could present a
significant threat to forthcoming or future litigation," the memo said.
Donnelly specifically cited the Aug 19, 1987, ruling in High Tech Gays
v. DISCO as reason for this new policy, even though the DOD has
appealed the decision to the 9th Circuit Court of Appeals.
The memorandum was obtained through a "leak" by Frank Kameny,
Washington, DC, gay rights activist, who passed it on to The Washington
Part of the February 2, 1990 The 9th Circuit Court of Appeals Ruling:
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,
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