Cammermeyer v. Aspin

Plaintiff
Margarethe Cammermeyer, Colonel
Defendants
Les Aspin, U.S. Secretary of Defense, et al.
Plaintiff's Claim
That her discharge from service in the National Guard--based solely on her statement that she is a lesbian--was in violation of her constitutional rights.
Chief Lawyers for Plaintiff
Jeffrey I. Tilden, Michael H. Himes, Mary Newcombe
Chief Defense Lawyer
David M. Glass
Judge
Thomas Zilly
Place
Seattle, Washington
Date of Decision
1 June 1994
Decision
Cammermeyer's discharge violated her equal protection and substantive due process rights but not her right to freedom of speech and association.
Significance
As the highest ranking and most highly decorated officer ever to have been discharged for homosexual status from any branch of the U.S. armed forces, Cammermeyer's case represents a milestone for those lesbians and gays who "servein silence" and for those who support their efforts.
Margarethe Cammermeyer's fitness to serve as a nurse in the U.S. military seemed completely self-evident from her record, which included a Bronze Star fordistinguished service in Vietnam. That the government ordered her dischargefollowing her statement that she was a lesbian--and ordered it over the protests of her immediate supervisors and Washington governor Booth Gardner, commander-in-chief of the Washington State National Guard--prompted intense mediaattention and public debate as to the merits of the military's exclusionary policies.
A Military Discharge
Cammermeyer applied to the Army War College in April of 1989 to receive training to further her career goal of becoming chief nurse of the National GuardBureau. During a related top secret security check, Cammermeyer--a divorced mother of four who had recently fallen in love with a female artist--was askedto disclose her sexual orientation. She answered that she was a lesbian andafterward initialed a statement explaining, "I am a Lesbian. Lesbianism is anorientation I have, emotional in nature, toward women. It does not imply sexual activity . . . "
The Washington State National Guard decided not to replace Cammermeyer as chief nurse and told her that "unless forced to do so" by the Department of theArmy in Washington, D.C., they would not pursue her discharge. The National Guard also gave Cammermeyer the opportunity to resign quietly, which she turned down.
In October, the U.S. Army began proceedings to withdraw Cammermeyer's federalrecognition of her state National Guard rank--based on Regulation AR 135-175. The regulation, which had been in effect since 1982, required the dischargefrom the military of any "member [who] has stated that he/she is a homosexual or bisexual, unless there is a further finding that the member is not a homosexual or bisexual."
Cammermeyer continued to serve as chief nurse, earning superb evaluations, while a military retention board conducted a three-year-long investigation. Although she was given several opportunities to retract her statement, she neverdid so. Telling the truth, she later explained, "was the very premise of everything I stood for in my entire life and career."
She told the truth again at a two-day hearing before the military retention board in July of 1991. At its conclusion, the board recommended that Cammermeyer's federal recognition be withdrawn. Assuming the recommendation was followed, the state National Guard would soon be forced to discharge Cammermeyer.
Colonel Patsy Thompson, former chief nurse of the National Guard Bureau, wasclearly reluctant to make this recommendation. Before reading it, she read another statement on behalf of all its members:

I truly believe that you are one of the great Americans, Margarethe. And I've admired you for along time and the work that you've done and all that you've done for the ArmyNational Guard. When I was Chief Nurse, I said many times, I am really gladwe have Margarethe Cammermeyer . . . She's doing such an outstanding job. We're really fortunate that she came to us. And I really mean that. And I stilldo mean that.

Thompson also read statements from "just a few of the people that you've touched in your thirty years of military career," including statements from one nurse who called it "a rare privilege to work under you during your tenure asChief Nurse" and another who said Cammermeyer's "ability to lead and inspireothers was obvious . . . " Nevertheless, she said, it was also her "sad duty"to read the board's official recommendation that Colonel Cammermeyer's federal recognition be withdrawn--an action that would result in her discharge.
Cammermeyer was honorably discharged on 11 June 1992, and she promptly fileda suit against the U.S. Army in the U.S. District Court, Seattle, Washington.
Summary Judgment
Cammermeyer and the U.S. government filed cross-motions for summary judgmentin the case and presented oral arguments as to these motions on 20 April 1994. The court granted Cammermeyer's motion for summary judgment regarding her Fifth Amendment equal protection and substantive due process claims.
The court also granted the government's motion for summary judgment regardingall of Cammermeyer's other claims. A motion for summary judgment is grantedwhere there is no factual dispute or where there is a "need to weigh the evidence at issue" and "the party is entitled to a judgment as a matter of law."In such cases, the court bases its ruling on the already accumulated and undisputed record, without hearing further oral argument.
Reviewing the documentation concerning Cammermeyer's service and discharge, as well as the precedent set by other courts with regard to the military and homosexuals, the court found that homosexuals were not, like members of a race, nationality, or religious group, a suspect class for equal protection purposes. Neither, District Judge Thomas Zilly wrote, were their equal protectionclaims subject to the heightened security accorded those who face discrimination based on gender. For a law that discriminates against homosexuals to survive an equal protection claim, Zilly wrote, it need only be found rationallyrelated to a legitimate purpose.
Legitimate But Not Rational
The court found that the government's stated purpose, to "maintain the readiness and combat effectiveness of its armed forces," was indeed a legitimate one. It did not, however, agree that discharging Cammermeyer was rationally related to this goal. Dismissing the government's claim that homosexuality is "incompati[ble] with military service and interfere[s] with military mission,"Zilly noted that in "Canada, Australia, France, Israel, Spain, Sweden, the Netherlands, Denmark, Finland, Norway, and Japan," homosexuals serve without incident. He also cited several studies commissioned by the U.S. government that found "the presence of homosexuals in the military is not an issue and hasnot created problems in the functioning of military units."
The court was likewise persuaded by evidence refuting the government's claimsthat homosexual service would damage discipline, good order, and morale; unit cohesion; heterosexual privacy; and its ability to recruit and retain military personnel. After dismissing these arguments, Zilly turned to polling results indicating that "40 to 79 percent of the public favors allowing homosexuals to serve in the military." However, Zilly wrote, "to the extent public disapproval of homosexual service in the military is based on prejudice, such disapproval would not be a legitimate basis for the government's policy."
Finally, Zilly cited Cammermeyer herself as the strongest argument against the government's contention that homosexuality was not compatible with militaryservice:

Certainly, the undisputed evidence in this case relating to Colonel Cammermeyer's service strongly supports the conclusion that acknowledged homosexuality is not incompatible with military service. Cammermeyerserved in the Army and the Washington State National Guard with distinction.She was a highly trained, decorated and dedicated officer in the military .. . After she disclosed her lesbian status in April 1989, she continued to perform her military duties for over three years until her discharge. Her finalevaluation, dated July 31, 1992 . . . described her as having continued to serve the Washington Army National Guard "with dedicated professionalism." Itis ironic that after over three years as an acknowledged homosexual servicemember, Cammermeyer was evaluated as having "the potential to assume responsibility at NGB level as Chief Nurse," yet she was discharged because of the alleged incompatibility of her sexual orientation with military service.

The court set aside Cammermeyer's claim that the "Constitution confers a fundamental right of privacy upon a person to be a homosexual," saying that it did not need to decide this question in order to resolve her claim. "The court," Zilly wrote, "has already held that the Army regulation challenged here isbased solely on prejudice. As such, it cannot withstand even rational basis review. Regulations based solely on prejudice are irrational as a matter of law and serve no legitimate governmental purpose."
The district court ordered that Cammermeyer be reinstated to her former position with all the rights, honors, and privileges accorded an officer of her rank. That order has been stayed pending the government's appeal, and Cammermeyer currently works in a civilian position at a veterans' hospital.
Impact
Since Cammermeyer the military has adopted a "don't ask, don't tell" (DADT) policy toward homosexuals in the military. The policy was instituted asa result of a compromise between those who wanted to lift the ban on gays inthe military and those who wanted to preserve it. President Clinton forced the compromise by bringing the issue to the nation's attention when he pledgedto lift the ban after his election in 1992. His proposal was met with considerable resistance by conservatives which resulted in the compromise. Specifically, the new policy prohibits the military from inquiring into the sexual orientation of military personnel without specific cause. However, the policy reserves the right to the military to discharge homosexuals if their behaviorundermines military capability--specifically, unit cohisiveness. In Thomasson v. Perry (1996) the federal courts ruled that the DADT policy did notviolate an individual's Fifth Amendment equal protection rights or an individual's First Amendment freedom of speech rights. Both gay activists and military traditionalists seem discontented by the compromise policy. However, forthe time being the courts and policy makers see it as the only amicable solution.
Related Cases

• Meinhold v. U.S. Dept. of Defense, 34 F.3d 1469 (1994).
  
• McVeigh v. Cohen, 983 F.Supp. 215 (1997).