At the age of 13, Perry Watkins acknowledged his homosexuality. Six years later, in 1967, he applied for enlistment in the U.S. Army. He confronted a direct question: ''Do you have homosexual tendencies?'' He answered ''Yes.'' Nevertheless he was accepted; he rose through the ranks to become a respected sergeant. Now the Army wants to keep him out.
The Watkins case provides a classic example, as old as Antigone and Creon, of the conflict between the rights of an individual and the powers of the state. Last week the Ninth U.S. Circuit Court of Appeals grappled with the issue and came down 2-1 on the side of the individual. Watkins must be permitted to reenlist unless the Army can show reasons for rejecting him that do not involve his sexual orientation.
The Ninth Circuit's decision raises something of a landmark. By extension, the ruling could have a significant impact not only upon the armed services but also upon many areas of public and private life. In effect the court held that being homosexual, for constitutional purposes, is like being black. Absent some ''compelling'' state purpose, discrimination against homosexuals merely because of their sexual orientation cannot be permitted.
In his 60-page opinion, Circuit Judge William A. Norris drew what he called a ''critical distinction'' between sexual orientation and sexual conduct. The same kind of distinction is familiar in First Amendment law. It is one thing to advocate the overthrow of the government; it is quite another thing to hurl a bomb.
In the case at hand, the evidence established unequivocally that Watkins has been an exemplary soldier. He scored a perfect 85 on his most recent evaluation; an Army review board found ''no evidence suggesting that his behavior has had a degrading effect upon unit performance, morale or discipline, or upon his own job performance.'' His commanding officer described him as ''one of our most respected and trusted soldiers.''
Nevertheless, under a regulation adopted by the Army in 1981, the Army ordered him discharged, not subject to reenlistment. Other branches of the service have substantially the same regulations. In 1980 the same Ninth Circuit upheld the Navy's discharge of three homosexuals. The unanimous opinion in that case was written by Judge Anthony Kennedy -- the same Judge Kennedy who now joins the U.S. Supreme Court.
The 1980 case, Beller v. Middendorf, involved different facts, and it arose under different constitutional provisions. The three plaintiffs in the Beller case had admitted homosexual acts; they contended that by summarily discharging them, the Navy had deprived them of their constitutional ''liberty'' without due process of law. By contrast, the Watkins case involves only sexual orientation, and Watkins contends that he was denied equal protection of the law.
The government's view is that the armed services are special. The Constitution gives Congress power ''to make rules for the government and regulation of the land and naval forces.'' As the Supreme Court many times has said, that power is entitled to unusual deference. Two years ago the high court reiterated that doctrine in a case involving a Jewish doctor in the Air Force. He asserted a First Amendment right to wear a yarmulke on duty. The court rejected his appeal: the military's power to enforce a uniform dress code superseded his right to the free exercise of his religion.
In the Watkins case, the Army defended its regulation against homosexuals as one of compelling importance. Many straight soldiers despise homosexuals; their presence in a barracks creates -- or could create -- tensions that would undermine discipline and morale; their admitted orientation clearly implies a desire for sexual gratification through sodomy. The Ninth Circuit brushed these contentions aside. Some of these same arguments once were used to justify the segregation of blacks. A vague ''desire'' to engage in sodomy is not enough. It is only the criminal act that could justify dismissal from the armed services.
By declaring homosexuals to be a ''suspect class'' in terms of constitutional doctrine, the Ninth Circuit opens a wide door. In times past, blacks, aliens and religious and ethnic minorities have been so classed. Laws relating to them must pass ''strict scrutiny.'' The effect of the Watkins decision, if upheld on appeal, could be far-reaching.
Notice that Sgt. Watkins did not contend for some constitutional right of privacy to engage in sodomy. The Supreme Court has ruled flatly that there is no such right. He contended only that homosexuals, as a class, are subjected to invidious discrimination because of an immutable characteristic, like skin color, that is irrelevant in constitutional law. I would have to concur.
1988, Universal Press Syndicate