Full opinion text
PREGERSON, Circuit Judge: The United States Army denied Sgt. Perry J. Watkins reenlistment solely because he is a homosexual. The Army refused to reenlist Watkins, a 14-year veteran, even though he had been completely candid about his homosexuality from the start of his Army career, even though he is in all respects an outstanding soldier, and even though the Army, with full knowledge of his homosexuality, had repeatedly permitted him to reenlist in the past. The Army did so despite its longstanding policy that homosexuality was a nonwaivable disqualification for reenlistment. The issue before the en banc court is whether the Army may deny reenlistment to Watkins solely because of his acknowledged homosexuality. I. FACTUAL AND PROCEDURAL BACKGROUND In August 1967, at the age of 19, Perry Watkins was drafted into the United States Army. In filling out the Army’s preinduction medical form, he marked “yes” in response to a question asking whether he had homosexual tendencies. The Army nonetheless found Watkins “qualified for admission” and inducted him into its ranks. During Watkins’ initial three-year tour of military duty, he served in the United States and Korea as a chaplain’s assistant, personnel specialist, and company clerk. A year after his induction, in 1968, Watkins signed an affidavit stating that he had been a homosexual from the age of 13 and that, since his enlistment, he had engaged in sodomy with two other servicemen, a crime under military law. The Army, which received this affidavit as part of a criminal investigation into Watkins’ sexual conduct, dropped the investigation because of insufficient evidence. When his first enlistment period expired in 1970, Watkins received an honorable discharge, but his reenlistment eligibility code was listed as “unknown.” In 1971, Watkins requested correction of the reenlistment designation and the Army corrected the code to category 1, “eligible for reentry on active duty.” Shortly thereafter, he reenlisted for a second three-year term. In 1972, Watkins was denied a security clearance because of his homosexuality, and the Army again investigated him for allegedly committing sodomy and again terminated the investigation for insufficient evidence. Following another honorable discharge in 1974, the Army accepted Watkins’ application for a six-year reenlistment. In 1975, the Army convened a board of officers to determine whether Watkins should be discharged because of his homosexual tendencies. On this occasion his commanding officer, Captain Bast, testified that Watkins was “the best clerk I have known,” that he did “a fantastic job — excellent,” and that Watkins’ homosexuality did not affect the company. A sergeant testified that Watkins’ homosexuality was well-known but caused no problems and generated no complaints from other soldiers. The four officers on the board unanimously found that “Watkins is suitable for retention in the military service” and stated, “In view of the findings, the Board recommends that SP5 Perry J. Watkins be retained in the military service because there is no evidence suggesting that his behavior has had either a degrading effect upon unit performance, morale or discipline, or upon his own job performance. SP5 Watkins is suited for duty in administrative positions and progression through Specialist rating.” The board’s recommendation became the final decision of the Secretary of the Army. In November 1977, the United States Army Artillery Group (the USAAG) granted Watkins a security clearance for information classified as “Secret.” His application for a position in the Nuclear Surety Personnel Reliability Program (the PRP), however, was initially rejected because his records — specifically, his own admissions— showed that he had homosexual tendencies. After this initial rejection, Watkins’ commanding officer in the USAAG, Captain Pas tain, requested that Watkins be requali-fied for the position. Captain Pastain stated, “From daily personal contacts I can attest to the outstanding professional attitude, integrity, and suitability for assignment within the PRP, of SP5 Watkins. In the 6 months he has been assigned to this unit SP5 Watkins has had no problems what-so-ever in dealing with other assigned members. He has, in fact, become one of our most respected and trusted soldiers, both by his superiors and his subordinates.” An examining Army physician concluded that Watkins’ homosexuality appeared to cause no problem in his work, and the decision to deny Watkins a position in the Nuclear Surety Personnel Reliability Program was reversed. Watkins worked under a security clearance without incident until he again stated, in an interview on March 15, 1979, that he was homosexual. This prompted yet another Army investigation which, in July 1980, culminated in the revocation of Watkins’ security clearance. As the notification of revocation makes clear, the Army based this revocation on Watkins’ 1979 admission of homosexuality, on medical records containing Watkins’ 1968 affidavit stating that he had engaged in homosexual conduct, and on his history of performing (with the permission of his commanding officer) as a female impersonator in various revues. The Army did not rely on any evidence of homosexual conduct other than Watkins’ 1968 affidavit. In October 1979, the Army accepted Watkins’ application for another three-year reenlistment. In 1981 the Army promulgated Army Regulation (AR) 635-200, chpt. 15, which mandated the discharge of all homosexuals regardless of merit. Pursuant to this new discharge regulation, another Army board convened to consider discharging Watkins. Although this board explicitly rejected the evidence before it that Watkins had engaged in homosexual conduct after 1968, the board recommended that Watkins bé separated from the service “because he has stated that he is a homosexual.” Major General Elton, the discharge authority overseeing the board, approved this finding and recommendation and directed that Watkins be discharged. In May 1982, after the Army board voted in favor of Watkins’ discharge, but before the discharge actually issued, District Judge Rothstein enjoined the Army from discharging Watkins on the basis of his statements admitting his homosexuality. 541 F.Supp. at 259. The district court reasoned that the discharge proceedings were barred by the Army’s regulation against double jeopardy, AR 635-200, ¶ l-19(b), because they essentially repeated the discharge proceedings of 1975. Id. at 258-59. During oral argument before the district court, counsel for the Army declared that if the Army were enjoined from discharging Watkins, it would deny Watkins reenlistment, pursuant to AR 601-280, ¶ 2-21(c), when his current tour of duty expired in October 1982. This reenlistment regulation, which was promulgated in 1981 along with the discharge regulation AR 635-200, chpt. 15, is simply a clarification of the earlier regulation which had always made homosexuality a nonwaivable disqualification for reenlistment. The district court nonetheless enjoined Watkins’ discharge, and the Army fulfilled its promise by rejecting Watkins’ reenlistment application “[bjecause of self admitted homosexuality as well as homosexual acts.” On October 5, 1982, the district court enjoined the Army from refusing to reenlist Watkins because of his admitted homosexuality, holding that the Army was equitably estopped from relying on the non-waivable disqualification provisions of AR 601-280, ¶ 2-21(c). Watkins v. United States Army, 551 F.Supp. 212, 223 (W.D.Wash.1982). The Army reenlisted Watkins for a six-year term on November 1, 1982, with the proviso that the reenlistment would be voided if the district court’s injunction were not upheld on appeal. While the Army’s appeal of the district court injunction was pending, the Army rated Watkins’ performance and professionalism. He received 85 out of 85 possible points. His ratings included perfect scores for “Earns respect,” “Integrity,” “Loyalty,” “Moral Courage,” “Self-discipline,” “Military Appearance,” “Demonstrates Initiative,” “Performs under pressure,” “Attains results,” “Displays sound judgment,” “Communicates effectively,” “Develops subordinates,” “Demonstrates technical skills,” and “Physical fitness.” His military evaluators unanimously recommended that he be promoted ahead of his peers. The Army’s written evaluation of Watkins’ performance and potential stated: SSG Watkins is without exception, one of the finest Personnel Action Center Supervisors I have encountered. Through his diligent efforts, the Battalion Personnel Action Center achieved a near perfect processing rate for SIP-DERS transactions. During this training period, SSG Watkins has been totally reliable and a wealth of knowledge. He requires no supervision, and with his “can do” attitude, always exceeds the requirements and demands placed upon him. I would gladly welcome another opportunity to serve with him, and firmly believe that he will be an asset to any unit to which he is assigned. SSG Watkins should be selected to attend ANCOC and placed in a Platoon Sergeant position. [Rater’s Evaluation of Watkins’ performance and potential.] SSG Watkins’ duty performance has been outstanding in every regard. His section continues to set the standard within the Brigade for submission of accurate, timely personnel and financial transactions. Keeping abreast of ever-changing personnel regulations and directives, SSG Watkins has provided sound advice to the commander as well as to the soldiers within the command. His suggestion to separate S-l and Personnel Action Center functions and to colocate the Personnel Action Center with the Company Orderly Rooms was adopted and immediately resulted in improved service by both offices. SSG Watkins’ positive influence has been felt throughout the Battalion and will be sorely missed. SSG Watkins’ potential is unlimited. He has consistently demonstrated the capacity to manage numerous complex responsibilities concurrently. He is qualified for promotion now and should be selected for attendance at ANCOES at the earliest opportunity. [Indorser’s Evaluation of Watkins’ performance and potential.] On appeal, a panel of this court reversed the district court’s injunction. Watkins v. United States Army, 721 F.2d 687, 691 (9th Cir.1983) [hereinafter Watkins I]. The panel reasoned that the equity powers of the federal courts could not be exercised to order military officials to violate their own regulations absent a determination that the regulations were repugnant to the Constitution or to the military’s statutory authority. Id. On remand, the district court held that the Army’s regulations were not repugnant to the Constitution or to statutory authority and accordingly denied Watkins’ motion for summary judgment and granted summary judgment in favor of the Army. Watkins again appealed and a divided panel of this court reversed the district court’s ruling. The panel held that the Army’s reenlistment regulations violate the constitutional guarantee of equal protection of the laws because they discriminate against persons of homosexual orientation and because the regulations are not necessary to promote a legitimate compelling governmental interest. Watkins v. United States Army, 847 F.2d 1329, 1352-53 (9th Cir.1988) [hereinafter Watkins II]. The full court granted review to address the issues raised in Watkins I and Watkins II. We hold that the Army is estopped from barring Watkins’ reenlistment on the basis of his homosexuality. Accordingly, Watkins I no longer states the law of this circuit. Moreover, it is unnecessary to reach the constitutional issues raised in Watkins II. II. EXHAUSTION OF REMEDIES Before considering Watkins’ estoppel claim, we must determine the preliminary question whether Watkins has exhausted available intraservice remedies. Watkins submitted a timely application for reenlistment to his commanding officer, Captain Scott, on July 26, 1982. Following an interview with Watkins, Captain Scott denied his reenlistment request on July 28, 1982 because of Watkins’ admitted homosexuality. The Army’s position is that Watkins is ineligible for reenlistment due to a nonwaivable disqualification. Any further pursuit of intraservice remedies would therefore be fruitless. See Watkins, 551 F.Supp. at 217. As the district court stated, “This court will not require plaintiff to exhaust futile remedies.” Id. at 218. See Southeast Alaska Conservation Council, Inc. v. Watson, 697 F.2d 1305, 1309 (9th Cir.1983) (“Exhaustion of administrative remedies is not required where administrative remedies are inadequate or not efficacious, [or] where pursuit of administrative remedies would be a futile gesture_”). Because we find that Watkins has exhausted all effective intraservice remedies, we now proceed to review the merits of his estoppel claim. III. EQUITABLE ESTOPPEL A. Reviewability This circuit and others have noted that not all actions by the military are reviewable in the courts. See Note, “Judicial Review of Constitutional Claims Against the Military,” 84 Colum.L.Rev. 387, 397-403 (1984). In Mindes v. Seaman, 453 F.2d 197, 201 (5th Cir.1971), the Fifth Circuit articulated a test for ascertaining whether a particular internal military decision should be reviewed. Mindes cautioned that a court should not review internal military affairs in the absence of (a) an allegation of the deprivation of a constitutional right, or an allegation that the military has acted in violation of applicable statutes or its own regulations and (b) exhaustion of available intraservice corrective measures. Id. If the plaintiff meets both prerequisites, the court must weigh several factors to determine whether to grant review. These factors are (1) the nature and strength of the plaintiff’s claim; (2) the potential injury to the plaintiff if review is refused; (3) the extent of interference with military functions; and (4) the extent to which military discretion or expertise is involved. Id. We have adopted in part the Mindes test for judicial reviewability of internal military affairs. See Wallace v. Chappell, 661 F.2d 729, 733 n. 4 (9th Cir.1981), rev’d on other grounds, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983). In Wallace, we applied the Mindes factors to constitutional claims, but declined to hold that the Mindes factors should be weighed in considering nonconstitutional claims. We stated that “[w]e express no view as to whether the Mindes test should govern federal nonconstitutional claims.” Id. at 733 n. 5. Because in this case the district court found in favor of Watkins on the nonconsti-tutional ground of equitable estoppel, we are now faced with the question whether the Mindes test is applicable to equitable estoppel. In Watkins I, a panel of this court applied the Mindes doctrine to hold, in effect, that the only issues that can be reviewed in a suit against the military are claims that the Constitution, a statute, or a regulation has been violated. See Watkins v. United States Army (Watkins I), 721 F.2d 687, 690 (9th Cir.1983). Watkins I, which no longer states the law of this circuit, held that our district courts may not use equitable estoppel principles to decide a case on its particular facts when the application of a statute or regulation is challenged as to one individual. Such an extension of the Mindes reviewability doctrine to bar equitable relief would improperly require cases against the military to be decided on the broadest possible grounds rather than on the narrowest. In this case, the panel’s decision in Watkins I caused the district court and the three-judge panel to reach constitutional issues when the case could have been decided narrowly under the doctrine of equitable estoppel. Accordingly, we conclude that the Mindes doctrine should not be extended to bar equitable estoppel against the military. The special factors that must be found before equitable estoppel can be applied against the government protect the same interests that the Mindes test was designed to protect. See Helm v. State of California, 722 F.2d 507, 509-10 (9th Cir.1983) (applying the Mindes test to a constitutional claim against the military but not applying it to an assertion of equitable estoppel). The Mindes test was created to shield the military from unnecessary disruption. The estoppel doctrine, like the Mindes test, addresses the concerns of comity, prudence, and deference. To estop an agency of the government a court must find affirmative misconduct by the government and must also find that the government’s conduct will cause a serious injustice and that estoppel will not cause undue harm to the public interest. Wagner v. Director, Federal Emergency Management Agency, 847 F.2d 515, 519 (9th Cir.1988) (quoting Morgan v. Heckler, 779 F.2d 544, 545 (9th Cir.1985)). The stringent requirements that must be satisfied before the government will be estopped safeguard the military from unjustified interference by the courts. Thus where estoppel obtains, there is simply no need to apply the reviewability factors of the Mindes test. The facts of the instant case support this conclusion. To estop the Army from denying Sgt. Watkins reenlistment on the basis of his homosexuality would not disrupt any important military policies or adversely affect internal military affairs. It would simply require the Army to continue to do what it has repeatedly done for fourteen years with only positive results: reenlist a single soldier with an exceptionally outstanding military record. B. Equitable Estoppel Against the Government The Supreme Court has expressly left open the issue whether estoppel may run against the government, refusing to hold “that there are no cases in which the public interest in ensuring that the Government can enforce the law free from estoppel might be outweighed by the countervailing interest of citizens in some minimum standard of decency, honor, and reliability in their dealings with their Government.” Heckler v. Community Health Services of Crawford County, Inc., 467 U.S. 51, 60-61, 104 S.Ct. 2218, 2224, 81 L.Ed.2d 42 (1984). It is well settled, however, that the government may not be estopped on the same terms as a private litigant. Id. at 60, 104 S.Ct. at 2224. Our court has held that “ ‘where justice and fair play require it,’ estoppel will be applied against the government....” Johnson v. Williford, 682 F.2d 868, 871 (9th Cir.1982) (quoting United States v. Lazy FC Ranch, 481 F.2d 985, 988-89 (9th Cir.1973)). Our eases indicate that the principles allowing estoppel against the government also apply to the military when justified by the facts. See, e.g., Helm v. State of California, 722 F.2d 507 (9th Cir.1983); Jablon v. United States, 657 F.2d 1064 (9th Cir.1981); Lavin v. Marsh, 644 F.2d 1378 (9th Cir.1981). Before the government will be estopped, however, two additional elements must be satisfied beyond those required for traditional estop-pel. First, “[a] party seeking to raise estoppel against the government must establish ‘affirmative misconduct going beyond mere negligence’; even then, ‘estop-pel will only apply where the government’s wrongful act will cause a serious injustice, and the public’s interest will not suffer undue damage by imposition of the liability.’ ” Wagner v. Director, Federal Emergency Management Agency, 847 F.2d 515, 519 (9th Cir.1988) (quoting Morgan v. Heckler, 779 F.2d 544, 545 (9th Cir.1985)). In the instant case, we must first determine whether the two threshold requirements for estopping the government are satisfied before deciding whether the traditional elements of estoppel are present. 1. Affirmative Misconduct There is no single test for detecting the presence of affirmative misconduct; each case must be decided on its own particular facts and circumstances. Lavin v. Marsh, 644 F.2d at 1382-83 n. 6. Affirmative misconduct does require an affirmative misrepresentation or affirmative concealment of a material fact by the government, United States v. Ruby Co., 588 F.2d 697, 703-04 (9th Cir.1978), cert. denied, 442 U.S. 917, 99 S.Ct. 2838, 61 L.Ed.2d 284 (1979), although it does not require that the government intend to mislead a party. Jablon v. United States, 657 F.2d at 1067 n. 5. Finally, it is well settled that the government is not bound by the unauthorized acts of its agents. Saulque v. United States, 663 F.2d at 976 (citing Utah Power & Light Co. v. United States, 243 U.S. 389, 409, 37 S.Ct. 387, 391, 61 L.Ed. 791 (1917)); see also Federal Crop Insurance Co. v. Merrill, 332 U.S. 380, 384, 68 S.Ct. 1, 3, 92 L.Ed. 10 (1947). Here, the Army affirmatively misrepresented in its official records throughout Watkins’ fourteen-year military career that he was qualified for reenlistment. On the one occasion when the record was unclear, Watkins sought clarification and his classification was immediately changed from “unknown” to “eligible for reentry on active duty.” During this entire fourteen-year period, the Army’s policy was that homosexuality constituted a nonwaivable disqualification for reenlistment. The Army has acknowledged, both in its brief in Watkins II and at oral argument before the en banc panel, that “[t]he 1981 regulations now in effect [AR 601-280, 112-21], which expressly bar enlistment or reenlistment of homosexuals, are regarded as a clarification, and not a change, of Army policy.” Army’s Brief in Watkins I at 6. Thus, the Army affirmatively acted in violation of its own regulations when it repeatedly represented that Watkins was eligible to reenlist, as well as when it reenlisted him time after time. This case is readily distinguishable from Lavin v. Marsh, 644 F.2d 1378 (9th Cir.1981), where we refused to estop the Army from denying an Army Reserve officer’s entitlement to pension benefits. In Lavin, the court found that while the Army had failed to determine Lavin’s pension eligibility status or to counteract any misunderstanding resulting from recruiters’ representations that benefits would be available to Lavin, this conduct did not amount to a “pervasive pattern of false promises” for which the government could be estopped. Id. at 1383. The court reasoned that although the Army’s conduct was perhaps negligent, the “mere failure to inform or assist does not justify application of equitable estoppel.” Id. at 1384 (citing INS v. Hibi, 414 U.S. 5, 8-9, 94 S.Ct. 19, 21-22, 38 L.Ed.2d 7 (1973)). In addition, we stated that persons dealing with the government assume the risk that government agents may exceed their authority and provide misinformation, and observed that “Lavin chose trust over caution and he never attempted to confirm his eligibility.” Id. at 1383. In the present case, the Army’s conduct went far beyond a mere failure to inform or assist. As the district court noted, the Army did not stand aside while Watkins reenlisted or accepted a promotion; it plainly acted affirmatively in admitting, reclassifying, reenlisting, retaining, and promoting Watkins. 551 F.Supp. at 221. Furthermore, this case does not merely involve misinformation provided by government agents. Rather, it involves ongoing active misrepresentations by Army officials acting well within their scope of authority. “Without Army approval [Watkins] would not have been able to enter, remain or progress in the Army. The defendants point out that reenlistment is exclusively the Secretary’s function, Here he exercised his authority three times.... To satisfy the element of affirmative misconduct the court need look no further.” Id. 2. Weighing the Injustice to Watkins against the Possibility of Damage to the Public Interest Even when affirmative misconduct has been shown, the government cannot be estopped unless its acts also threaten to work a serious injustice and the public’s interest will not be unduly damaged by the imposition of estoppel. Johnson, 682 F.2d at 871. This requirement involves a balancing of interests in individual cases. See Note, Equitable Estoppel of the Government, 79 Colum.L.Rev. 551, 551 (1979); see also, e.g., Johnson, 682 F.2d at 871-72 (where a prisoner was erroneously paroled, his subsequent successful reintegration into the community showed that his continuation on parole release did not seriously threaten the public interest. Furthermore, the frustration of the prisoner’s expectation to continue, during good behavior, on parole release would be a serious injustice); Gestuvo v. District Director of INS, 337 F.Supp. 1093, 1102 (C.D.Cal.1971) (estopping INS from refusing to revalidate approval of an immigrant’s third preference classification partly because “[a]ny disruption of the nation’s immigration policies that might result from the admission of this single individual into the country would, in short, be miniscule in comparison to the hardship to which he would be subjected by a failure to estop the Service”). The record in the instant case shows that Sgt. Watkins has greatly benefitted the Army, and therefore the country, by his military service. Even the Army’s most recent written evaluation of Watkins, completed during the course of this legal action, contains nothing but the highest praise, describing Watkins’ duty performance as “outstanding in every regard” and his potential as “unlimited.” In addition, Watkin’s homosexuality clearly has not hurt the Army in any way. In the words of an Army review board, “there is no evidence suggesting that [Watkins’] behavior has had either a degrading effect upon unit performance, morale or discipline, or upon his own job performance.” As the district court aptly concluded: The injury to plaintiff from having relied on the Army’s approval of his military career — and being denied it now — is the loss of his career. The harm to the public interest if reenlistment is not prevented is nonexistent. Plaintiff has demonstrated that he is an excellent soldier. His contribution to this Nation’s security is of obvious benefit to the public. Furthermore, when the government deals “carefully, honestly and fairly with its citizens,” the public interest is likewise benefited. 551 F.Supp. at 223 (citation omitted). C. Traditional Elements of Estoppel Having concluded that this is a case in which estoppel may be asserted against the government, we must now decide whether the traditional elements of estoppel are present. Traditional estoppel requires the following: (1) The party to be estopped must know the facts; (2) he must intend that his conduct shall be acted on or must so act that the party asserting the estoppel has a right to believe it is so intended; (3) the latter must be ignorant of the true facts; and (4) he must rely on the former’s conduct to his injury. United States v. Wharton, 514 F.2d 406, 412 (9th Cir.1975) (quoting United States v. Georgia-Pacific Corp., 421 F.2d 92, 96 (9th Cir.1970)). We adopt district judge Roth-stein’s thorough analysis of this question as follows. 1. Did the Army know the facts? The district court recited the following as evidence that the Army knew about Watkins’ homosexuality throughout his entire military career. At his preinduction physical examination in August 1967 plaintiff checked the box on his medical history chart indicating that he had homosexual tendencies. The examining psychiatrist apparently did not believe plaintiff and designated plaintiff as qualified for admission. In November 1968 plaintiff admitted his homosexuality to an Army Criminal Investigation Division agent. Plaintiff was honorably discharged in May 1970 and his reenlistment code was listed as “unknown.” Plaintiff requested correction of that code. The Army reclassified plaintiff as eligible for reentry on active duty, and in June 1971 plaintiff reenlisted for three years. In January 1972 plaintiff was denied a security clearance based on his 1968 admission of homosexuality. After another honorable discharge, in March 1974 plaintiff reenlisted for a six year term. In 1975 plaintiff’s commander initiated discharge proceedings against plaintiff for unsuitability due to homosexuality. A four member board composed of a Major, two Captains and a First Lieutenant heard testimony establishing that plaintiff was homosexual. Plaintiff’s commander, Captain Albert J. Bast III testified that plaintiff, who had told Bast he was homosexual, was "the best clerk I have known.” First Sergeant Owen Johnson testified that everyone in the company knew plaintiff was homosexual and that plaintiff’s homosexuality had not caused any problems. As noted earlier, the board recommended retention. In November 1977 plaintiff was granted a security clearance for information classified as “Secret.” Plaintiff then applied for a position in the Nuclear Surety Personnel Reliability Program. Plaintiff was initially rejected because his medical records reflected his homosexuality. Plaintiff appealed. His commanding officer, Captain Dale E. [Pastain], wrote in support of plaintiff's appeal, requesting that plaintiff be requalified notwithstanding plaintiff’s record. An examining physician concluded that plaintiff’s homosexuality caused no problems in his work. The Army requalified plaintiff for admission into the Program in July 1978. In October 1979 plaintiff reenlisted for three years. 551 F.Supp. at 220. Based on these undisputed facts, the district court stated that the Army’s position that Army personnel responsible for Watkins’ enlistment and re-enlistments did not know that he was homosexual was “patently absurd.” Id. “For the Army to acknowledge that it is aware of plaintiff’s homosexuality when it comes to conducting criminal investigations, holding discharge proceedings, and revoking security clearances, but maintain that it is ignorant when four enlistments are at issue, suggests bad faith.” Id. The district court concluded that the Deputy Chief of Staff for Personnel, who is primarily responsible for Army reenlistment, cannot be deemed to be unaware of the contents of Watkins’ personnel file. Id. 2.Did the Army Intend that Watkins Act in Reliance on its Conduct, or Did the Army Act so that Watkins Had a Right to Believe the Army so Intended? The district court found that this element of estoppel was satisfied because, regardless of what the Army actually intended, Watkins had a right to believe the Army intended him to rely on its acts. 551 F.Supp. at 221-22. The district court rejected the Army’s contention that Watkins had assumed the risk that his Army career would be discontinued at any time because of his homosexuality. Id. at 222. In light of Watkins’ candor from the beginning about his homosexuality and the Army’s ongoing acts in violation of its regulations, the district court found that “[tjaken together, over a career spanning more than 14 years, those acts amounted almost to a policy of ignoring this service-member’s homosexuality. As a matter of law, the court concludes that the second element of plaintiff’s estoppel claim has been satisfied.” Id. See also Johnson, 682 F.2d at 872 (prisoner had right to believe, after his parole computation erroneously had passed successfully through eight administrative reviews, culminating in his ultimate release on parole for fifteen months, that he would remain on parole during good behavior). 3.Was Watkins Ignorant of the True Facts? The district court stated that the “true fact” here is that homosexuality is a non-waivable disqualification for reenlistment to which the Army cannot grant exceptions. 551 F.Supp. at 222. The Army’s repeated waiver of this disqualification makes it impossible for us to charge Watkins with the knowledge that the disqualification was in fact nonwaivable. Id. See Johnson, 682 F.2d at 872 (government’s active misadvice to prisoner regarding his eligibility for parole prevented court from charging prisoner with even constructive knowledge of proper meaning of statute in question). 4.Did Watkins Rely to his Injury on the Army’s Conduct Concerning his Homosexuality? Regarding this fourth element, the district court stated: Tied up in litigation, less than six years from retirement, having invested a total of more than 14 years in the Army, it is not difficult to see that plaintiff has relied to his injury on the many “green lights” he received from Army representatives. Plaintiff developed skills necessary for military employment and refrained from developing skills suitable for civilian jobs. He worked more than 14 years toward a retirement benefit that he could have sought elsewhere. Had the Army refused plaintiff reenlistment in the past, plaintiff would not have lost the opportunity for civilian employment that would have brought him to a point of equivalent achievement. 551 F.Supp. at 223. We agree with District Judge Rothstein that the four elements of traditional estoppel are present in this case. IV. CONCLUSION This is a case where equity cries out and demands that the Army be estopped from refusing to reenlist Watkins on the basis of his homosexuality. We therefore reinstate the district court’s October 5, 1982 Order estopping the Army from relying on its reenlistment regulation, AR 601-280 112-24(c), as a bar to Sgt. Watkins’ reenlistment. See 551 F.Supp. at 223. Our opinions in Watkins I and Watkins II are withdrawn. The district court Order of June 17, 1985 is vacated and the district court Order of October 5, 1982 is AFFIRMED. . These facts are taken largely from this court’s opinion in Watkins v. United States Army, 847 F.2d 1329, 1330-34 (9th Cir.1988), as well as from other prior opinions in this case. See 721 F.2d 687 (9th Cir.1983); 551 F.Supp. 212 (W.D.Wash.1982); 541 F.Supp. 249 (W.D.Wash.1982). . Major General Elton, on his own initiative, made an additional finding that Watkins had engaged in homosexual acts with other soldiers. The district court ruled both that Major General Elton lacked the regulatory authority to make supplemental findings, Watkins v. United States Army, 541 F.Supp. 249, 259 (W.D.Wash.1982), and that the evidence presented at the discharge hearing could not support a specific finding that Watkins had engaged in any homosexual conduct after 1968. Id. at 257. The Army has not contested either of these rulings, and, on appeal, cites only Watkins’ 1968 affidavit as evidence of homosexual conduct. . Watkins had originally brought suit in August 1981 to have his security clearance reinstated, alleging various constitutional violations. After receiving notice that discharge proceedings would be convened, he amended his complaint in October to seek an injunction against his discharge. The district court declined to reach the issue whether the Army could revoke Watkins’ security clearance, reasoning that the issue was not yet ripe because Watkins had an administrative appeal pending. See 541 F.Supp. at 259; see also Watkins v. United States Army, 551 F.Supp. at 223. Watkins’ security clearance dispute is thus not before us on appeal. . The district court held that the evidence could not support a finding that Watkins engaged in homosexual conduct subsequent to the 1975 discharge proceedings and that the Army’s double jeopardy provision barred the Army from basing Watkins’ discharge on statements that merely reiterated what Watkins had stated in the 1975 discharge proceedings — that he was homosexual. See 541 F.Supp. at 257-59. . This reenlistment regulation, unlike the new discharge regulation, is simply a clarification of the pre-1981 reenlistment regulation. Throughout Watkins’ 14 years in the Army, homosexuality was always a nonwaivable disqualification for reenlistment. . At that time, the regulation appeared at ¶ 2-24(c). However, for convenience, this opinion will refer to all Army regulations by the paragraph numbers used in the Army's September 15, 1986 update, unless a different date is explicitly noted. . This case does not involve a claim that courts can exercise general review of the Army’s reenlistment decisions. Watkins does not seek a judicial determination of the merits of his reenlistment application. He merely seeks a judicial determination that the Army must consider his reenlistment application on its merits without regard to his homosexuality. See 551 F.Supp. at 218. . The law of the case doctrine does not, as the Army suggests, prevent us from reconsidering the issues raised in Watkins I. See, e.g., Shimman v. International Union of Operating Engineers, Local 18, 744 F.2d 1226, 1229 n. 3 (6th Cir.1984) (en banc) (“The law of the case doctrine ... does not impair the power of an en banc court to overrule any panel decision."), cert. denied, 469 U.S. 1215, 105 S.Ct. 1191, 84 L.Ed.2d 337 (1985); Van Gemert v. Boeing Co., 590 F.2d 433, 436-37 n. 9 (2d Cir.1978) (en banc) (law of the case doctrine cannot immunize panel decisions from review by the court en banc), aff’d, 444 U.S. 472, 100 S.Ct. 745, 62 L.Ed.2d 676 (1980); cf. United States v. Mills, 810 F.2d 907, 909 (9th Cir.1987) (stating that law of the case is a discretionary doctrine and declining to apply the doctrine), cert. denied, — U.S. -, 108 S.Ct. 107, 98 L.Ed.2d 67 (1987). . Captain Scott also denied the reenlistment request because of Watkins’ alleged refusal to answer questions concerning his homosexuality or homosexual acts. The district court found that this ground for the denial of Watkins’ reenlistment request was totally unsupported by the evidence and therefore only reviewed Watkins’ admitted homosexuality as a ground for denial of reenlistment. 551 F.Supp. at 217. . Some of our cases following Wallace v. Chap-pell have used language indicating that an internal military decision is reviewable only when the plaintiff alleges a constitutional, statutory, or regulatory violation. See Christoffersen v. Washington State Air National Guard, 855 F.2d 1437, 1442 (9th Cir.1988); Sandidge v. State of Washington, 813 F.2d 1025, 1026 (9th Cir.1987); Sebra v. Neville, 801 F.2d 1135, 1141 (9th Cir.1986); Khalsa v. Weinberger, 779 F.2d 1393, 1398 (9th Cir.1985), reaff’d, 787 F.2d 1288 (9th Cir.1986). Because we hold that the Mindes doctrine does not apply to equitable estoppel against the military, see infra, its limitations on reviewability are not relevant here. . " ‘[N]o fewer than eight circuits ... have stated that there are some circumstances in which the Government will be estopped_Johnson, 682 F.2d at 871 (citations omitted). . See infra section III(C) (discussing traditional estoppel). . In Johnson, 682 F.2d at 871, we stated that estoppel may run against the government even when the government acts in its sovereign, as opposed to its proprietary, capacity if the effects of estoppel do not unduly damage the public interest. In Johnson, we further noted that in Saulque v. United States, 663 F.2d 968, 976 (9th Cir.1981), we made the flat statement in dicta that the government may not be estopped when acting in its sovereign capacity. Id. at 871 n. 1. We explained in Johnson that the facts of Sa-ulque had not required an examination of the applicability of the exception spelled out in Lazy FC Ranch. Id. Thus Saulque does not preclude application of estoppel against the government when it is acting in its sovereign capacity. .The earlier opinions in this case discuss the 1981 reenlistment regulations as a policy change. See, e.g., Watkins I, 721 F.2d at 689-90. The change, however, went to discharge policy and not to enlistment policy. After 1981, Army boards reviewing discharge cases could no longer make exceptions to the policy against retention of homosexuals. The policy against enlistment or reenlistment of homosexuals never provided for any exceptions. . In the district court, Watkins presented unre-butted evidence that a forged entry had been made on his Reenlistment Data Card. The entry was falsified so that it appeared to have been made on July 29, 1981 at a reenlistment interview with Captain Rodger L. Scott, Watkins’ immediate commanding officer. The forged entry indicated that Watkins was not eligible for reenlistment due to his homosexuality. The entry stated that Watkins was “pending discharge.” Watkins provided unrebutted testimony that this alleged interview never occurred and that an earlier entry, in the handwriting of Captain Scott, had been erased. The erased entry was still legible and showed that the Army had earlier found Watkins to be eligible for reenlistment. Watkins’ testimony was corroborated by an un-rebutted affidavit from a Sgt. Michael Austin. The original entry provides additional evidence of the Army's affirmative misconduct in continuing to find Watkins eligible for reenlistment despite the Army’s awareness of his homosexuality. The erasure and the forged entry provide circumstantial evidence of a consciousness of misconduct on the part of the Army and an attempt to conceal that misconduct from exposure. . As the district court noted, the decisions to enlist, to reenlist, to retain, and to promote a soldier are serious and well-considered decisions by the military. Id. . We emphasize that Watkins’ claim is not based on any alleged right, contractual or otherwise, to reenlist in the Army. There is no such right. Rather, he argues that the Army’s misconduct requires that the Army be estopped from denying his eligibility for reenlistment on the basis of his homosexuality. . Our holding does not mean and should not be read to imply that Watkins has a right to commit acts that Congress has declared illegal. See Watkins, 551 F.Supp. at 225. We do nevertheless reiterate the point made in the district court's October 28, 1982 Order "that the Army cannot, consistent with the [district] court’s October 5 Order, use plaintiffs homosexuality as an open door through which to probe for possible misconduct, when it has no grounds to believe such misconduct exists.” 551 F.Supp. at 225. In addition, we note that the district court found that the Army’s attempt to discharge Watkins in 1982 was barred by the Army’s regulation against double jeopardy, AR 635-200, ¶ 1 — 19(b)(2), because the 1982 discharge proceedings essentially repeated the 1975 discharge proceedings against Watkins. 541 F.Supp. at 257-58. The Army did not appeal from that judgment. Therefore, the Army may not attempt to discharge Watkins for any alleged homosexual acts that were the subject of past discharge proceedings or for any past or future statements by Watkins acknowledging his homosexuality.
NORRIS, Circuit Judge, concurring in the judgment: I I concur in the judgment requiring the Army to reconsider Sgt. Watkins’ reenlistment application without regard to his homosexuality. I cannot join the majority’s opinion, however, because I agree with the dissent that the judgment cannot rest on the doctrine of equitable estoppel. The Supreme Court has declined to approve the invocation of equitable estoppel against the government even in cases where the facts are no less sympathetic than the facts in Sgt. Watkins’ case. See, e.g., INS v. Miranda, 459 U.S. 14, 17-19, 103 S.Ct. 281, 282-84, 74 L.Ed.2d 12 (1982) (per curiam) (reversing Ninth Circuit decision equitably estopping INS from denying resident status to alien spouse of citizen when petitioner became ineligible during INS delay in processing application); INS v. Hibi, 414 U.S. 5, 94 S.Ct. 19, 38 L.Ed.2d 7 (1973) (per curiam) (reversing Ninth Circuit decision equitably estopping INS from denying citizenship to Filipino war veteran); Montana v. Kennedy, 366 U.S. 308, 314-15, 81 S.Ct. 1336, 1340-41, 6 L.Ed.2d 313 (1961) (government not estopped to deny citizenship to child of U.S. citizen born while his mother was living abroad, even though government official advised her that she could not return to the U.S. to have her baby). Indeed, the Supreme Court has expressed uncertainty as to whether equitable estoppel can ever be invoked against the government. See Heckler v. Community Health Servs., 467 U.S. 51, 60-61, 104 S.Ct. 2218, 2224, 81 L.Ed.2d 42 (1984). In any event, I see no justification for invoking the doctrine on the facts of this ease. In my view, Watkins is entitled to relief because the Army denied him the equal protection of the laws by discharging and refusing to reenlist him solely on the basis of his homosexuality. Before addressing Watkins’ claim that the Army’s regulations on homosexuality violate equal protection, however, I must address Watkins’ non-constitutional claim — that the Army’s discharge and reenlistment regulations are arbitrary and capricious under the Administrative Procedure Act, 5 U.S.C. § 706(2)(A). I reject this claim because Watkins does not argue that the Army’s regulations on homosexuality themselves violate the Administrative Procedure Act; rather he argues only that the regulations are arbitrary as applied to the facts of his case. Because he does not argue that the regulations on their face are arbitrary or capricious, Watkins’ APA claim must fail. See Watkins I, 721 F.2d at 690-91. I now turn to Watkins’ claim that the Army’s regulations deny him equal protection of the laws in violation of the Fifth Amendment. Watkins argues that the Army’s regulations constitute an invidious discrimination based on sexual orientation. To evaluate this claim I must engage in a three-stage inquiry. First, I must decide whether the regulations in fact discriminate on the basis of sexual orientation. Second, I must decide which level of judicial scrutiny applies by asking whether discrimination based on sexual orientation burdens a suspect or quasi-suspect class, which would make it subject, respectively, to strict or intermediate scrutiny. See City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439-41, 105 S.Ct. 3249, 3253-55, 87 L.Ed.2d 313 (1985). If the discrimination burdens no such class, it is subject to ordinary rationality review. Id. Finally, I must decide whether the challenged regulations survive the applicable level of scrutiny by deciding whether, under strict scrutiny, the legal classification is necessary to serve a compelling governmental interest; whether, under intermediate scrutiny, the classification is substantially related to an important governmental interest; or whether, under rationality review, the classification is rationally related to a legitimate governmental interest. See id. II I turn first to the threshold question raised by Watkins’ equal protection claim: Do the Army’s regulations discriminate on the basis of sexual orientation? The portion of the Army’s reenlistment regulation that bars homosexuals from reenlisting states in full: Applicants to whom the disqualifications below apply are ineligible for RA [Regular Army] reenlistment at any time and requests for waiver or exception to policy-will not be submitted.... c. Persons of questionable moral character and a history of antisocial behavior, sexual perversion or homosexuality. A person who has committed homosexual acts or is an admitted homosexual but as to whom there is no evidence that they have engaged in homosexual acts either before or during military services is included. (See note 1)_ k. Persons being discharged' under AR 635-200 for homosexuality_ Note: Homosexual acts consist of bodily contact between persons of the same sex, actively undertaken or passively permitted, with the intent of obtaining or giving sexual satisfaction, or any proposal, solicitation, or attempt to perform such an act. Persons who have been involved in homosexual acts in an apparently isolated episode, stemming solely from immaturity, curiousity [sic], or intoxication, and in the absence of other evidence that the person is a homosexual, normally will not be excluded from reenlistment. A homosexual is a person, regardless of sex, who desires bodily contact between persons of the same sex, actively undertaken or passively permitted, with the intent to obtain or give sexual gratification. Any official, private, or public profession of homosexuality, may be considered in determining whether a person is an admitted homosexual. AR 601-280, U 2-21. Although worded in somewhat greater detail, the Army’s regulation mandating the separation of homosexual soldiers from service (discharge), AR 635-200, is essentially the same in substance. On their face, these regulations discriminate against homosexuals on the basis of their sexual orientation. Under the regulations any homosexual act or statement of homosexuality gives rise to a presumption of homosexual orientation, and anyone who fails to rebut that presumption is conclusively barred from Army service. In other words, the regulations target homosexual orientation itself. The homosexual acts and statements are merely relevant, and rebuttable, indicators of that orientation. In spite of these facial appearances, the Army argues that its regulations target homosexual conduct rather than orientation. I cannot agree. A close reading of the complex regulations leaves no room for doubt that the regulations target orientation rather than conduct. Under the Army’s regulations, “homosexuality,” not sexual conduct, is clearly the operative trait for disqualification. AR 601-280, K 2-21(c); see also AR 635-200, ¶ 15-l(a) (articulating the same goal). For example, the regulations ban homosexuals who have done nothing more than acknowledge their homosexual orientation even in the absence of evidence that the persons ever engaged in any form of sexual conduct. The reenlistment regulation disqualifies any “admitted homosexual” — a status that can be proved by “[a]ny official, private, or public profession of homosexuality” even if “there is no evidence that they have engaged in homosexual acts either before or during military service.” AR 601-280, ¶ 2-21(c) & note; see also AR 635-200, K 15-3(b). Since the regulations define a “homosexual” as “a person, regardless of sex, who desires bodily contact between persons of the same sex, actively undertaken or passively permitted, with the intent to obtain or give sexual gratification,” a person can be deemed homosexual under the regulations without ever engaging in a homosexual act. 601-280, K 2-21(c) & note (emphasis added); see also A.R. 635-200, 15-2(a) (same desire sufficient to make one homosexual). Thus, no matter what statements a person has made, and what conduct he or she has engaged in, the ultimate evidentiary issue is whether he or she has a homosexual orientation. Under the reenlistment regulation, persons are disqualified from reenlisting only if, based on any “profession of homosexuality” they have made, they are found to have a homosexual orientation. AR 601-280, K 2-21(c) & note. Similarly, under the discharge regulation a soldier must be discharged if “[t]he soldier has stated that he or she is a homosexual or bisexual, unless there is a further finding that the soldier is not a homosexual or bisexual.” AR 635-200, it 15-3(b) (emphasis added). In short, the regulations do not penalize all statements of sexual desire, or even only statements of homosexual desire; they penalize only homosexuals who declare their homosexual orientation. True, a “person who has committed homosexual acts” is also presumptively “included” under the reenlistment regulation as a person excludable for “homosexuality.” AR 601-280, K 2-21(c); see also AR 635-200, K 15-3(a). But it is clear that this provision is merely designed to round out the possible evidentiary grounds for inferring a homosexual orientation. The regulations define “homosexual acts” to encompass any “bodily contact between persons of the same sex, actively undertaken or passively permitted, with the intent of obtaining or giving sexual satisfaction, or any proposal, solicitation, or attempt to perform such an act.” AR 601-280, K 2-21(c) & note; see also AR 635-200, UK 15-2(c) & 15-3(a) (stating the same in slightly different order). Thus, the regulations barring homosexuals from the Army cover any form of bodily contact between persons of the same sex that gives sexual satisfaction — from oral and anal intercourse to holding hands, kissing, caressing and any number of other sexual acts. Indeed, in this case the Army tried to prove at Watkins’ discharge proceedings that he had committed a homosexual act described as squeezing the knee of a male soldier, but failed to prove it was Watkins who did the alleged knee-squeezing. Moreover, even non-sexual conduct can trigger a presumption of homosexuality: The regulations provide for the discharge of soldiers who have “married or attempted to marry a person known to be of the same sex ... unless there are further findings that the soldier is not a homosexual or bisexual.” AR 635-200, II 15-3(c) (emphasis added). With all the acts and statements that can serve as presumptive evidence of homosexuality under the regulations, it is hard to think of any grounds for inferring homosexual orientation that are not included. The fact remains, however, that homosexual orientation, not homosexual conduct, is plainly the object of the Army’s regulations. Moreover, under the regulations a person is not automatically disqualified from Army service just because he or she committed a homosexual act. Persons may still qualify for the Army despite their homosexual conduct if they prove to the satisfaction of Army officials that their orientation is heterosexual rather than homosexual. To illustrate, the discharge regulation provides that a soldier who engages in homosexual acts can escape discharge if he can show that the conduct was “a departure from the soldier’s usual and custom- ary behavior” that “is unlikely to recur because it is shown, for example, that the act occurred because of immaturity, intoxication, coercion, or a desire to avoid military service” and that the “soldier does not desire to engage in or intend to engage in homosexual acts.” AR 635-200, ¶ 15-3(a). The regulation expressly states, “The intent of this policy is to permit retention only of nonhomosexual soldiers who, because of extenuating circumstances engaged in, attempted to engage in, or solicited a homosexual act.” Id. at note (emphasis in original). Similarly, the Army’s ban on reenlisting persons who have committed homosexual acts does not apply to “[pjersons who have been involved in homosexual acts in an apparently isolated episode, stemming solely from immaturity, curiousity [sic], or intoxication, and in the absence of other evidence that the person is a homosexual.” AR 601-280, 112-21 note. If a straight soldier and a gay soldier of the same sex engage in homosexual acts because they are drunk, immature or curious, the straight soldier may remain in the Army while the gay soldier is automatically terminated. In short, the regulations do not penalize soldiers for engaging in homosexual acts; they penalize soldiers who have engaged in homosexual acts only when the Army decides that those soldiers are actually gay. In sum, the discrimination against homosexual orientation under these regulations is about as complete as one could imagine. The regulations make any act or statement that might conceivably indicate a homosexual orientation evidence of homosexuality; that evidence is in turn weighed against any evidence of a heterosexual orientation. It is thus clear in answer to my threshold equal protection inquiry that the regulations directly burden the class consisting of persons of homosexual orientation. Ill A Before reaching the question of the level of scrutiny applicable to discrimination based on sexual orientation and the question whether the Army’s regulations survive the applicable level of scrutiny, I first address the Army’s argument that Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), forecloses Watkins’ equal protection claim. In Hardwick, the Court rejected a claim by a homosexual that a Georgia statute criminalizing sodomy deprived him of his liberty without due process of law in violation of the Fourteenth Amendment. More specifically, the Court held that the constitutionally protected right to privacy — recognized in cases such as Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), and Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972) — does not extend to acts of consensual homosexual sodomy. See id. 478 U.S. at 190-96, 106 S.Ct. at 2843-46. The Court’s holding was limited to this due process question. The parties did not argue and the Court explicitly did not decide the question whether the Georgia sodomy statute might violate the equal protection clause. See id. at 196, n. 8, 106 S.Ct. at 2846 n. 8. The Army nonetheless argues that it would be “incongruous” to hold that its regulations deprive gays of equal protection of the laws when Hardwick holds that there is no constitutionally protected privacy right to engage in homosexual sodomy. Army’s Second Supp. Brief at 19. I could not disagree more. First, while Hardwick does indeed hold that the due process clause provides no substantive privacy protection for acts of private homosexual sodomy, nothing in Hardwick suggests that the state may penalize gays merely for their sexual orientation. Cf. Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962) (holding that state violated due process by criminalizing the status of narcotics addiction, even though the state could criminalize the use of the narcotics — conduct in which narcotics addicts by definition are prone to engage). In other words, the class of persons involved in Hardwick — those who engage in homosexual sodomy — is not congruous with the class of persons targeted by the Army’s regulations — those with a homosexual orientation. Hardwick was a “conduct” case; Watkins’ is an “orientation” case. Second, and more importantly, Hardwick does not foreclose Watkins’ claim because Hardwick was a due process, not an equal protection case. Although the Army acknowledges, as it must, that Hardwick does not discuss equal protection explicitly, the Army nonetheless argues that Hard-wick’s discussion of due process has equal protection implications. Specifically, the Army argues that the Hardwick Court, in holding that the criminalization of homosexual sodomy does not violate due process, decided sub silentio that the criminalization of heterosexual sodomy would violate due process. The Army concludes from this that Hardwick is controlling precedent that the government may discriminate against homosexuals without violating equal protection. Both the premise and the conclusion of the Army’s argument are mistaken. In the first place, Hardwick did not decide sub silentio that heterosexual sodomy is constitutionally protected. Indeed, the Court expressly refused to take a position on whether heterosexual sodomy was protected by the due process clause. Second, even if we accept, arguendo, the Army’s premise that the Hardwick Court drew a distinction between homosexual sodomy and heterosexual sodomy for due process purposes, such a distinction under the due process clause would have no bearing on whether the equal protection clause nonetheless prohibits official discrimination against homosexuals. I discuss these points in turn. Implicit in the Army’s position is the proposition that the Court in Hardwick somehow did decide that the due process clause prohibits a state from criminalizing heterosexual sodomy. That is, the Army reads Justice White’s opinion in Hardwick as extending the zone of privacy first recognized in Griswold to heterosexual sodomy, thus drawing a due process line between heterosexual and homosexual sodomy. That reading of Hardwick flies directly in the face of footnote 2, which expressly reserves the question of the constitutionality of the Georgia statute as applied to heterosexual sodomy. See 478 U.S. at 188 n. 2, 106 S.Ct. at 2842 n. 2. Even apart from the Court’s express reservation of this question, the Army’s reading of Hardwick is untenable. I see no basis f