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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 government 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 Court, LGBT 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 
the 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 it is.

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. 
For homosexuals, 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 B.A.R. newspapers.

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 suit.

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 belong to.

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 weeks.
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 motion.

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 rational basis."

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 . . . stay tuned.

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 appeals procedures.

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 security."

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 relationship.

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 decision.

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 nationwide

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, Henderson said.

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 concealment.

The government's contention that homosexuals disapproval is based on stereo- types that have been rejected by modern psychology, Henderson said.

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 Black.

9th Court Ruling February 2, 1990 link to the full ruling.

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, Defendants-Appellants.
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.




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