Dismissal of Lesbian and Gay Military Personnel

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Mary Roseann Saal performed her job so well that her superiors repeatedly showered her with superlative evaluations for her work in the high-stress, highly-specialized position of Navy air traffic controller at the Alameda Naval Air Station between 1971 through 1974. The one thing she did not do correctly, at least in the eyes of the Navy, was enter into a relationship with another woman. Despite Saal's obvious talents and commitment, (her final job performance evaluation covering the last five months of service concluded: "Highly recommended for advancement and reenlistment), the Navy summarily discharged her because of her sexual orientation. Saal filed a lawsuit challenging the Navy's orders, which were based on the assumption that all homosexuals were unfit to serve because they would be "military liabilities who cannot be tolerated in a military organization."

Irrational Targeting of Gay Service Members

In February 1977, in a decision remarkable for its time, a trial judge ruled in Saal's favor and dismissed the Navy's arguments that gay individuals should summarily be dismissed, despite their superior job performance, because of potential problems such as "tensions and hostilities" between homosexuals and heterosexuals and undue influence or chain of command challenges due to emotional/romantic relationships between gay personnel. The judge ruled that the potential problems concerning the Navy could be caused by any member of the service, heterosexual or homosexual, and it was therefore irrational to target gay service men and women only on the basis of sexual orientation.

When Saal's case, along with the cases of two other gay military personnel, reached the Ninth Circuit Court of Appeals, however, the higher court overruled the trial judge's decision and held that the Navy's policy of blanket dismissal of homosexuals, regardless of job performance, was rational. Writing for the appellate court, Judge Anthony Kennedy (later appointed to the United States Supreme Court by President Ronald Reagan) pointed out the unique role of the military when commenting,: "Regulations which might infringe constitutional rights in other contexts may survive scrutiny because of military necessities."

Rationalizing the Targeting of Gay Service Members

In a subtle echo of the reasoning used to justify the forced exclusion and incarceration of Japanese Americans during World War II, the appeals court panel ruled that the military's special need for order and discipline, coupled with the impracticality of determining whether each individual gay soldier would cause some of the problems envisioned, made it rational for the Navy to maintain its policy of blanket dismissal for gay personnel.

A Double Standard?

At the same time, though, Kennedy wrote that if the Navy's dismissal policy were based on race or gender, the court would have rejected it outright and that the government was teetering on the edge of serious constitutional violations by prying into the private and consensual sexual activities of gay soldiers.

Twenty-three years after this decision, Kennedy, as a Supreme Court justice, would write the opinion in Lawrence v. Texas, which struck down sodomy laws criminalizing homosexuality.

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