Full opinion text
RYMER, Circuit Judge: Pursuant to the so-called “don’t ask/don’t tell” policy regarding gays in the military, the Navy discharged Petty Officer Mark A. Philips for stating that he is a homosexual, and for engaging in and saying that he will continue to engage in homosexual acts. Concluding that this circuit has held in a line of cases from Beller v. Middendorf, 632 F.2d 788 (9th Cir.1980), cert. denied, 452 U.S. 905, 101 S.Ct. 3030, 69 L.Ed.2d 405 (1981), through Meinhold v. U.S. Dept. of Defense, 34 F.3d 1469 (9th Cir.1994), that the military may constitutionally discharge members who engage in homosexual conduct, as distinguished from merely having a homosexual status or orientation, the district court granted the Secretary of Defense’s motion for summary judgment. Inasmuch as Philips’s homosexual acts were sufficient to justify his discharge under the “acts” prong of the statute and regulations, the court declined to address the constitutionality of the Navy’s alternative basis for discharge under the “statements” prong—that Philips made a statement that he is a homosexual, and failed to rebut the presumption raised by that statement that he has a propensity to engage in homosexual acts. We agree with the district court, and affirm. I Philips had served for four years as an enlisted member of the United States Navy, garnering an excellent service record. In November 1992, while on board the U.S.S. NIMITZ, Philips told his division officer that he is a homosexual. During a subsequent interview with military personnel, Philips said that he had discovered he was a homosexual within the preceding year; that he had had sexual relations with men about a dozen times and that he would continue to have sex with men; that when ashore he frequented gay bars two or three times a week; that his sexual encounters never involved other military members or occurred on board ship or on a military installation; that the acts were consensual; that he had experienced no problems at work because of his homosexuality; and that he wanted to be processed for discharge, to fight the process, and to win by being retained in the naval service. Soon thereafter, the Navy initiated a discharge proceeding under then-existing regulations, which provided for separation of any service member who engaged in homosexual acts or who stated that he is a homosexual. Philips filed suit and unsuccessfully sought a temporary restraining order to prevent his discharge. An administrative hearing was held, and the board recommended that Philips be discharged based on his statement that he is a homosexual. However, the board’s recommendation was never carried out because of the impending new policy regarding gays in the military and several pending lawsuits challenging the constitutionality of the old policy. Eventually the district court entered a stipulated order staying further proceedings in this case until we decided Meinhold. After the new “Policy concerning homosexuality in the armed forces,” 10 U.S.C. § 654, and the 1994 DOD Directives became effective, the Navy commenced a second administrative discharge proceeding against Philips under the new policy (with Philips’s agreement). The board found that Philips had engaged in homosexual conduct based on his engaging in homosexual acts, as evidenced by his statement that he had done so. The board also found that Philips had engaged in homosexual conduct based on his statement that he is a homosexual. It therefore again recommended that Philips be honorably discharged from the Navy. The district court enjoined Philips’s discharge but in later ruling on cross-motions for summary judgment, concluded that Meinhold compelled it to hold that the Navy did not violate equal protection by discharging Philips for engaging in homosexual acts and for intending to continue engaging in such acts. The court also concluded that, under our holding in Pruitt v. Cheney, 963 F.2d 1160 (9th Cir.1991), cert. denied, 506 U.S. 1020, 113 S.Ct. 655, 121 L.Ed.2d 581 (1992), the discharge did not violate the First Amendment. Philips appeals. II As the district court’s opinion discusses in greater detail, the new policy was the outgrowth of extensive consideration by the executive and legislative branches. Congress made 15 findings in enacting § 654, including that military life is fundamentally different from civilian life; the standards of conduct for members of the armed forces must apply at all times to members whether on or off base and whether on or off duty; the worldwide deployment of United States military forces- and potential for involvement of the armed forces in actual combat make it necessary for members of the armed forces to accept living conditions that are characterized by forced intimacy with little or no privacy; the prohibition against homosexual conduct is long-standing and continues to be necessary; and the presence in the armed forces of persons who demonstrate “intent to engage in homosexual acts would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability.” 10 U.S.C. §§ 654(a)(8), (9), (10), (12), (13), (15). Section 654 differs from the former policy primarily in that the military may no longer initiate inquiry into a person’s sexual orientation. Also unlike the old regulations, the regulations implementing the new policy stipulate that sexual orientation is considered a personal and private matter, and that neither entry into service nor continued service depends on orientation. However, the “don’t ask/don’t tell” policy continues to provide for discharge of a service member who commits homosexual acts and intends to continue doing so. It mandates that a service member “shall be separated” under regulations prescribed by DOD under three circumstances: if the member has engaged in “a homosexual act or acts” unless the member demonstrates that “such conduct” departs from his usual behavior and is unlikely to recur, and that he does not have a propensity or intent to engage in such conduct, 10 U.S.C. § 654(b)(1)(A), (B), (D); or if the member has stated that he is a homosexual unless he demonstrates that he does not engage or intend to engage in homosexual acts, id. at § 654(b)(2); or if the member has married or attempted to marry a person of the same biological sex, id. at § 654(b)(3). “Homosexual act” is defined as “any bodily contact ... between members of the same sex for the purpose of satisfying sexual desires.” 10 U.S.C. § 654(f)(3). Directives issued by then-Secretary of Defense Les Aspin further explain the policy and how it is to be implemented. See DOD Directives 1304.26 (Qualification Standards for Enlistment, Appointment, and Induction), 1332.14 (Enlisted Administrative Separations), 1332.30 (Separation of Regular Commissioned Officers). The Directive under which Philips was processed provides, among other things: Homosexual conduct is grounds for separation from the Military Services under the terms set forth in paragraph H.l.b, below. Homosexual conduct includes homosexual acts, a statement by a member that demonstrates a propensity or intent to engage in homosexual acts, or a homosexual marriage or attempted marriage. A statement by a member that demonstrates a propensity or intent to engage in homosexual acts is grounds for separation not because it reflects the member’s sexual orientation, but because the statement indicates a likelihood that the member engages in or will engage in homosexual acts. A member’s sexual orientation is considered a personal and private matter, and is not a bar to continued service under this section unless manifested by homosexual conduct in the manner described in paragraph H.l.b. DOD Directive 1332.14(H)(1)(a). Paragraph (H)(1)(b) spells out the findings required for discharge under the “acts,” “statement” and “marriage” prongs of § 654(b) in terms that are essentially identical to § 654(b)(1), (2), (3). As there is no dispute that Philips engaged in homosexual acts and intended to continue doing so, and since we agree with the district court that Philips’s discharge must be upheld under the “acts” prong alone, we do not consider the “statement” and “marriage” alternatives. Ill Philips argues that § 654 and its implementing regulations violate his right to equal protection because they are not rationally related to any permissible purpose. He complains that under the policy, he was subject to mandatory discharge for engaging in sexual acts with a man, whereas heterosexuals who engage in the same sexual acts are not subject to the policy and its mandatory discharge provisions. Philips submits that none of the government’s purported justifications—that the policy prevents the commission of homosexual acts, that it prevents deterioration of unit cohesion and morale, and that it enhances privacy and reduces sexual tension—provides a legitimate rationale for the statute’s discrimination. The government counters that all courts to consider the question have upheld the military’s constitutional authority to separate service members who engage in homosexual acts. In any event, it contends, the military’s policy must be sustained because it advances the legitimate military goals of deterring homosexual acts, promoting unit cohesion, accommodating personal privacy and reducing sexual tension that Congress found go to the “essence of military capability.” 10 U.S.C. § 654(a)(14). The government maintains that because the policy is reasonably related to advancing these goals, it is not based on invidious prejudice. As the district court concluded after careful analysis, the slate upon which we write is not clean. We explain why before turning to Philips’s specific arguments. A The Due Process Clause of the Fifth Amendment assures every person the equal protection of the laws, “which is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985). Because we have previously held that “homosexuals do not constitute a suspect or quasi-suspect class entitled to greater than rational basis scrutiny under the equal protection component of the Due Process Clause of the Fifth Amendment,” High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 574 (9th Cir.1990), we subject the policy on gays in the military to rational basis review. We therefore must reject both the request of amici curiae that we apply strict scrutiny to the policy, and Philips’s suggestion that classifications along the lines of sexual orientation ought to receive heightened judicial scrutiny. The Supreme Court has further channeled the nature of our review in two critical respects. First, in Heller v. Doe, 509 U.S. 312, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993), it made clear that “rational-basis review in equal protection analysis ‘is not a license for courts to judge the wisdom, fairness, or logic of legislative choices.’ ” Id. at 319, 113 S.Ct. at 2642 (quoting FCC v. Beach Communications, Inc., 508 U.S. 307, 313, 113 S.Ct. 2096, 2101, 124 L.Ed.2d 211 (1993)). Rather, “a classification neither involving fundamental rights nor proceeding along suspect lines is accorded a strong presumption of validity,” id., which “must be upheld against equal protection challengé if there is any reasonably conceivable state of facts that could provide a rational basis for the classification,” id. at 320, 113 S.Ct. at 2642 (quoting Beach Communications, 508 U.S. at 313, 113 S.Ct. at 2101). Under the standard of rational basis review defined by the Court: [The government], moreover, has no obligation to produce evidence to sustain the rationality of a statutory classification. A legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data. A statute is presumed constitutional, and the burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it, whether or not the basis has a foundation in the record. Finally, courts are compelled under rational-basis review to accept a legislature’s generalizations even when there is an imperfect fit between means and ends. Id. at 320-21, 113 S.Ct. at 2643 (citations and internal quotations omitted). Second, the Supreme Court has instructed that “ ‘judicial deference ... is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged.’ ” Goldman v. Weinberger, 475 U.S. 503, 508, 106 S.Ct. 1310, 1313, 89 L.Ed.2d 478 (1986) (quoting Rostker v. Goldberg, 453 U.S. 57, 70, 101 S.Ct. 2646, 2655, 69 L.Ed.2d 478 (1981)). This is especially true where the challenged restriction and its constitutionality are extensively considered by Congress in hearings, committee and floor debate. Rostker, 453 U.S. at 64, 72, 101 S.Ct. at 2651, 2655-56. We are, in addition, to “give great deference to the professional judgment of military authorities concerning the relative importance of a particular military interest.” Goldman, 475 U.S. at 507, 106 S.Ct. at 1313. In that context the Court has recognized that “[t]he essence of military service ‘is the subordination of the desires and interests of the individual to the needs of the service,’ ” id. (quoting Orloff v. Willoughby, 345 U.S. 83, 92, 73 S.Ct. 534, 539, 97 L.Ed. 842 (1953)), and we have also acknowledged that “[regulations which might infringe constitutional rights in other contexts may survive scrutiny because of military necessities.” Beller, 632 F.2d at 811. In these circumstances we “must be particularly careful not to substitute [our] judgment of what is desirable for that of Congress, or [our] own evaluation of evidence for a reasonable evaluation by the Legislative Branch.” Rostker, 453 U.S. at 68, 101 S.Ct. at 2653. B For nearly twenty years we have upheld the constitutionality of the military’s authority to discharge service members who engage in homosexual acts. We have concluded that maintaining effective armed forces is indisputably a compelling governmental purpose and that the policy of excluding from the military those members who engage in homosexual conduct is rationally related to this purpose. In Beller v. Middendorf 632 F.2d 788 (9th Cir.1980), cert. denied, 452 U.S. 905, 101 S.Ct. 3030, 69 L.Ed.2d 405 (1981), discharged service members claimed that the homosexual conduct prohibited by the Navy regulation then in force was protected as an aspect of the fundamental right of privacy. We drew upon equal protection jurisprudence, applied heightened scrutiny (which we have since held is unnecessary with respect to government regulation of .homosexual conduct), and held that “the importance of the government interests furthered [by the regulation] ... outweigh whatever heightened solicitude is appropriate for consensual private homosexual conduct.” Id. at 810. As then-judge Kennedy wrote for the court: The nature of the employer—the Navy—is crucial to our decision. While it is clear that one does not surrender his or her constitutional rights upon entering the military, the Supreme Court has repeatedly held that constitutional rights must be viewed in light of the special circumstances and needs of the armed forces. Id. In Hatheway v. Secretary of the Army, 641 F.2d 1376 (9th Cir.), cert. denied, 454 U.S. 864, 102 S.Ct. 324, 70 L.Ed.2d 164 (1981), an officer convicted by a general court-martial of sodomy in violation of Article 125 of the Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 915 (1976), challenged its constitutionality on a variety of grounds, including that the prosecuting authorities impermissi-bly selected those committing homosexual sodomy for prosecution. Treating Hathe-way’s claim as an equal protection argument, we acknowledged that “[classifications which are based solely on sexual preference implicate the ‘right to be free, except in very limited circumstances, from unwarranted government intrusions into one’s privacy.’ ” Id. at 1382 (quoting Stanley v. Georgia, 394 U.S. 557, 564, 89 S.Ct. 1243, 1247-48, 22 L.Ed.2d 542 (1969)). However, relying on Better’s analysis of the interests at stake (and still applying heightened scrutiny), we concluded: The government has a compelling interest in maintaining a strong military force. Underlying our holding in Better was the judgment that those who engage in homosexual acts severely compromise the government’s ability to maintain such a force. That judgment was the basis for our holding that the Navy’s policy of discharging all such persons was constitutionally permissible. ... In light of Better, we hold that selection of cases involving homosexual acts for Article 125 prosecutions bears a substantial relationship to an important governmental interest. Id. In Schowengerdt v. United States, 944 F.2d 483, 490 (9th Cir.1991), cert. denied, 503 U.S. 951, 112 S.Ct. 1514, 117 L.Ed.2d 650 (1992), we considered a substantive due process challenge to the Navy’s discharge of Schowengerdt based on his statement that he was a bisexual and his descriptions of bisexual activities in correspondence. We again relied on Better, observing that it rejected a similar challenge to discharge under similar regulations under a higher level of scrutiny than is now required, arid held that the commission of homosexual acts is not an impermissible ground for selective prosecution. Most recently, in Meinhold v. United States Dep’t of Defense, 34 F.3d 1469 (9th Cir.1994), we had occasion to construe the regulations in effect before “don’t ask/don’t tell” which provided for separation of service members based on their being a “homosexual,” defined in part as a person who engages in or “desires” to engage in homosexual acts. Meinhold was discharged solely on account of his statement “I am in fact gay.” He did not contend that the Navy’s policy was constitutionally impermissible to the extent that it related to homosexual conduct; rather, his appeal turned on his status, or classification, as a homosexual. Relying on Goldman, Rostker, Better, Hatheway, and Schowengerdt, we deferred to the Navy’s judgment that the presence of persons who engage in homosexual conduct, or who demonstrate a propensity to engage in homosexual conduct by their statements, impairs the accomplishment of the military mission. However, we were unwilling to condone the Navy’s discharge of Meinhold “solely because of a statement of orientation devoid of any concrete, expressed desire or intent to act on his homosexual propensity contrary to military policy.” Id. at 1472 (emphasis added). Thus, the district court correctly concluded that this court has consistently held that regulations of the nature at issue here, directed to homosexual acts rather than merely to status or orientation, are constitutional. C Philips seeks to distance his case from our precedent on a number of grounds. First, he maintains, the government has offered no legitimate rationale for § 654’s harsher punishment of acts committed by gay service members, and has never specified what “act” it believes it has an interest in preventing. Philips postulates, however, that the universe of homosexual “acts” that the government might have an interest in preventing consists of sexual misconduct such as sodomy, which the UCMJ punishes for heterosexuals and homosexuals but which § 654 punishes more severely for homosexuals in that heterosexuals found to have violated the UCMJ are evaluated on a ease-by-case basis whereas gay service members are discharged pursuant to § 654(b) with no dis-eretionary review of their actual job performance; and sexual conduct of any other sort, which the policy punishes for homosexuals only and for which heterosexuals are not punished at all. Philips further argues that there is no rationale for treating the same sexual acts more harshly when engaged in by gays or lesbians. These arguments, however, are foreclosed by Better and Hatheway unless, as Philips also contends, they are either distinguishable or have been undermined by the Supreme Court’s subsequent opinions in Palmore v. Sidoti, 466 U.S. 429, 104 S.Ct. 1879, 80 L.Ed.2d 421 (1984), and Cleburne v. Cleburne Living Center, 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). Philips argues that Better is distinguishable because our analysis in that case was rooted in substantive due process rather than in equal protection theory. Even though we have indicated that an equal protection objection to the Navy’s discharge policy is not the same as a substantive due process objection, Schowengerdt, 944 F.2d at 490 n. 8, we relied on both the analysis and holding of Better in Hatheway, an equal protection case, and in Meinhold. In any event, as we observed in High Tech Gays, substantive due process and equal protection doctrine are “intertwined for purposes of equal protection anal-yses of federal action,” 895 F.2d at 573 n. 9; and in Better itself, we imported equal protection analysis (with a heightened level of scrutiny) and found that the military’s interests in discharging a service member for homosexual acts were nevertheless compelling. Beller, 632 F.2d at 808. Philips contends that Hatheway is not on point since it did not invoke an equal protection challenge to a separate scheme of regulation punishing gay service members more harshly. However, Hatheway presented the precise situation complained of here: the military’s practice of treating service members differently based on whether their acts are homosexual or heterosexual. Philips says that Meinhold is inapposite because the plaintiff there did not challenge the military’s regulation of sexual or other conduct. While this is true, our opinion necessarily turned on the military’s authority to regulate conduct. Alternatively, Philips argues that even if, contrary to his view, Belter and Hatheway are not distinguishable, neither remains good law since the Supreme Court made it clear in Palmore and Cleburne that one group’s dislike for another is not a legitimate reason for governmental discrimination. In support he points to our statement in Pruitt, 963 F.2d at 1165, that, after Palmore and Cleburne, “unexamined effect” cannot be given to Seller and Hatheway so as to preclude an equal protection challenge to military policies that discriminate against gays. In Palmore, the Court applied strict scrutiny to a state court judgment that removed an infant child from the custody of its natural mother solely because she had remarried a person of a different race. It then concluded that the effects of racial prejudice, however real, cannot justify such a racial classification: The Constitution cannot control such prejudices but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect. Palmore, 466 U.S. at 433, 104 S.Ct. at 1882. In Cleburne, the Court struck down a city zoning ordinance that required homes for the mentally retarded, but not other care or multiple-dwelling facilities, to obtain a special use permit. Among other things, the City Council was concerned with the negative attitude of a majority of the property owners located nearby as well as with the fears of elderly residents of the neighborhood. The Court rejected this justification, as “mere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable in a zoning proceeding, are not permissible bases for treating a home for the mentally retarded differently from apartment houses, multiple dwellings, and the like.” Cleburne, 473 U.S. at 448, 105 S.Ct. at 3259. Finding that the city’s other objections lacked any rational connection to a distinction between the home for the mentally retarded and similar facilities, the Court invalidated the ordinance as applied because “requiring the permit in this case appears ... to rest on an irrational prejudice against the mentally retarded.” Id. at 450, 105 S.Ct. at 3260. We disagree with Philips that Cleburne and Palmore overturn Better and Hatheway. Unlike Better and Hatheway, Cleburne and Palmore involved status restrictions, not conduct restrictions. Each was therefore a case where the government distinction had no purpose other than raw prejudice. While the same might well be said of the Navy’s restriction in Better if tension between known homosexuals and other members who “despise/detest homosexuality” had been the Navy’s only justification, it wasn’t, and our opinion did not rest on this ground alone but rather, as we said: “There are multiple grounds for the Navy to deem this regulation appropriate for the full and efficient accomplishment of its mission.” Beller, 632 F.2d at 811. Accordingly, Better is not undercut by Palmore and Cleburne to the extent that it rests on other grounds, and on acts instead of status. See Pruitt, 963 F.2d at 1165. In addition, neither Palmore nor Cleburne involved a military regulation. In Cleburne, a city regulation was challenged and the Court evaluated rationality based on the Court’s own view of the record. Cleburne, 473 U.S. at 449, 105 S.Ct. at 3259. But when a military regulation is challenged, courts evaluate rationality with “great deference to the professional judgment of military authorities concerning the relative importance of a particular military interest.” Goldman, 475 U.S. at 507, 106 S.Ct. at 1313. Whereas in Cleburne, the City Council’s purported justifications had to do only with “mere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable in a zoning proceeding,” Cleburne, 473 U.S. at 448, 105 S.Ct. at 3259, the military’s justifications for separating members who engage in homosexual acts have roots in factors which distinguish military from civilian life and which have been recognized by the Supreme Court as properly cognizable in a military context. See, e.g., Goldman, 475 U.S. at 507, 106 S.Ct. at 1313 (“to accomplish its mission the military must foster instinctive obedience, unity, commitment, and esprit de corps”). In the same vein, Philips contends that, under Pruitt, in this circuit it is not legitimate for the government to discriminate against gay service members because other service members do not like them, and thus may react adversely to being around them. This is beside the point, however, as Pruitt came up on the pleadings, which alleged that the service member had been discharged solely on account of homosexual status, and the Army had made no attempt to justify its regulation. Here, the Navy has explained that in its judgment separating members who engage in homosexual acts is necessary to further military effectiveness by maintaining unit cohesion, accommodating personal privacy and reducing sexual tension. Although Philips faults this justification by suggesting that terms such as “good order and discipline,” “privacy,” and “sexual tension” cannot make prejudice proper, we cannot say that the Navy’s concerns are based on “mere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable” by the military. Cleburne, 473 U.S. at 448, 105 S.Ct. at 3259. Nor can we say that avoiding sexual tensions lacks any “footing in the realities” of the Naval environment in which Philips served. See Heller, 509 U.S. at 321, 113 S.Ct. at 2643. Therefore, bound by our precedent that the relationship between the Navy’s mission and its policy on homosexual acts is not so attenuated as to render the distinction arbitrary and irrational, we hold that section 654(a)(1) does not violate Philips’s right to equal protection. Having concluded that his discharge under the “acts” prong is constitutionally permissible, we do not consider his further challenge on equal protection grounds to' the “statements” prong of the policy. IV Philips contends that § 654 and the directives facially, and as applied to him, violate the First Amendment because they target the expression of a gay identity without sufficient justification. He specifically complains that § 654(b)(2), which is triggered by a “state[ment] that one is a homosexual or bisexual, or words to that effect,” reaches constitutionally-protected speech, and covers expressive behavior that is likewise protected by the First Amendment. However, we agree with the district court’s restraint in declining unnecessarily to reach this constitutional issue, as Philips’s discharge has been upheld under § 654(b)(1). United States v. Raines, 362 U.S. 17, 21, 80 S.Ct. 519, 522-23, 4 L.Ed.2d 524 (1960); New York City Transit Auth. v. Beazer, 440 U.S. 568, 582 n. 22, 99 S.Ct. 1355, 1364 n. 22, 59 L.Ed.2d 587 (1979) (courts should follow “a policy of strict necessity in disposing of constitutional issues”). To the extent that Philips objects to use of his own statements, we have already held that use of an admission of homosexuality is not precluded by the First Amendment. Pruitt, 963 F.2d at 1164; see also High Tech Gays, 895 F.2d at 578-80. Philips was discharged because the board found that he had engaged in homosexual acts, and intended to engage in homosexual acts in the future, based on his statements to this effect. Thus, as in Pruitt, Philips’s statements were used as evidence, not as the reason for discharge. We therefore hold that Philips’s discharge under section 654(b)(1) does not violate his First Amendment right to free speech. AFFIRMED. . The President announced his “Policy on Homosexual Conduct in the Armed Forces” July 19, 1993, and its main points were codified in legislation enacted November 30, 1993. 10 U.S.C. § 654 (Supp.1994). Final implementing directives were issued by the Department of Defense (DOD) and the Navy February 28, 1994. See DOD Directive 1332.14 (March 4, 1994); NAVADMIN 033/94. As the Navy regulations are essentially identical to DOD Directive 1332.14, we shall refer only to the DOD Directive; and as the Directive simply implements the policy of the statute in nearly identical terms, we refer interchangeably to § 654, the directives and the policy. . The district court's opinion is published. Philips v. Perry, 883 F.Supp. 539 (W.D.Wash.1995). . DOD Directive 1332.14 (Jan. 28, 1982), published at 32 C.F.R. Pt. 41, App. A. . The board further found that Philips had not demonstrated all of the following: (1) that such acts are a departure from his usual and customary behavior; (2) that such acts, under all the circumstances, are unlikely to recur; (3) that such acts were not accomplished by use of force, coercion, or intimidation; (4) that under the particular circumstances of the case, his continued presence in the Navy would be consistent with the interests of the Navy in proper discipline, good order, and morale; and (5) that he does not have a propensity or intent to engage in homosexual acts. See 10 U.S.C. § 654(b)(1). . In this regard the board found that Philips failed to demonstrate that he is not a person who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts. See 10 U.S.C. § 654(b)(2). . The district also rejected Philips's substantive due process challenge, holding that it was foreclosed by our decision in Better. Philips does not appeal this holding. . Philips's appeal is supported by amici curiae the Human Rights Campaign, Union of American Hebrew Congregations, American Jewish Congress, United Church of Christ Office for Church in Society, National Organization for Women, NOW Legal Defense and Education Fund, Center for Women Policy Studies, National Gay and Lesbian Task Force, and Gay and Lesbian Advocates and Defenders. The Family Research Council filed a brief supporting the Secretary's position. . Section 654(b) provides in full: (B)Policy.—A member of the armed forces shall be separated from the armed forces under regulations prescribed by the Secretary of Defense if one or more of the following findings is made and approved in accordance with procedures set forth in such regulations: (1) That the member has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts unless there are further findings, made and approved in accordance with procedures set forth in such regulations, that the member has demonstrated that- (A) such conduct is a departure from the member’s usual and customary behavior; (B) such conduct, under all the circumstances, is unlikely to recur; (C) such conduct was not accomplished by use of force, coercion, or intimidation; (D) under the particular circumstances of the case, the member’s continued presence in the armed forces is consistent with the interests of the armed forces in proper discipline, good order, and morale; and (E) the member does not have a propensity or intent to engage in homosexual acts. (2) That the member has stated that he or she is a homosexual or bisexual, or words to that effect, unless there is a further finding, made and approved in accordance with procedures set forth in the regulations, that the member has demonstrated that he or she is not a person who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts. (3)The member has married or attempted to marry a person known to be of the same biological sex. . The policy definitions provide in relevant part that: ' (1) The term "homosexual” means a person, regardless of sex, who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts, and includes the terms “gay” and "lesbian”. (3) The term "homosexual act” means- (A) any bodily contact, actively undertaken or passively permitted, between members of the same sex for the purpose of satisfying sexual desires; and (B) any bodily contact which a reasonable person would understand to demonstrate a propensity or intent to engage in an act described in subparagraph (A). 10 U.S.C. § 654(f)(1), (3). . The Directive provides for discharge for homosexual conduct on the basis of a statement when findings are made that "the member has made a statement that he or she is a homosexual or bisexual, or words to that effect, unless there is a further approved finding that the member has demonstrated that he or she is not a person who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts.” Such a statement creates a rebuttable presumption. The regulation further states that: Propensity to engage in homosexual acts means more than an abstract preference or desire to engage in homosexual acts; it indicates a likelihood that a person engages in or will engage in homosexual acts. In determining whether a member has successfully rebutted the presumption that he or she engages in, attempts to engage in, or has a propensity or intent to engage in homosexual acts, some or all of the following may be considered: (a) Whether the member has engaged in ho- . mosexu.al acts; (b) The member’s credibility; (c) Testimony from others about the member's past conduct, character, and credibility; (d) The nature and circumstances of the member's statement; (e) Any other evidence relevant to whether the member is likely to engage in homosexual acts. DOD Directive 1332.14(H)(l)(b)(2). . High Tech Gays, 895 F.2d at 572 (Bowers v. Hardwick, 478 U.S. 186, 194-96, 106 S.Ct. 2841, 2846-47, 92 L.Ed.2d 140 (1986), overruled Better on the need for heightened scrutiny). . Every other circuit to address this issue is in accord, upholding against constitutional challenges the authority of the military to discharge those members who engage in homosexual conduct. See, e.g., Dronenburg v. Zech, 741 F.2d 1388, 1398 (D.C.Cir.1984) (relying on Better and holding that “the policy requiring discharge for homosexual conduct is a rational means of achieving the[ ] legitimate interests [in maintaining discipline, good order, and morale]”); Rich v. Secretary of Army, 735 F.2d 1220, 1229 (10th Cir.1984) (relying on both Better and Hatheway to conclude that "[a] classification based on one's choice of sexual partners ... is valid in light of the Army’s demonstration of a compelling governmental interest in maintaining the discipline and morale of the armed forces"); Falk v. Secretary of the Army, 870 F.2d 941, 947 (2d Cir.1989) (relying on Better in refusing to overturn the Army's decision to "retain[ ] homosexual conduct as the reason given for [Falk’s] discharge"); Woodward v. United States, 871 F.2d 1068, 1076-77 (Fed.Cir.1989) (relying on Better to reject equal protection challenge), cert. denied, 494 U.S. 1003, 110 S.Ct. 1295, 108 L.Ed.2d 473 (1990); Walmer v. United States Dep’t of Defense, 52 F.3d 851, 854-55 (10th Cir.), cert. denied, - U.S. -, 116 S.Ct. 474, 133 L.Ed.2d 403 (1995). Moreover, the Fourth Circuit's recent en banc decision in Thomasson v. Perry, 80 F.3d 915 (4th Cir.), cert. denied, - U.S. -, 117 S.Ct. 358, 136 L.Ed.2d 250 (1996), which upheld the “statements” prong of the policy against an equal protection challenge, was based in part on the court’s conclusion that “military authorities may discharge those who engage in homosexual acts,” and that "it is legitimate for Congress to proscribe homosexual acts.” Id. at 929. . See Beller, 632 F.2d at 811 & n. 22, quoting in part an affidavit from the Assistant Chief of Naval Personnel identifying such tension as one of a number of reasons for the Navy's then-current policy on homosexuality. . In its post-Palmore en banc opinion upholding the Naval Academy's discharge of a midshipman who admitted his homosexual orientation, the District of Columbia Circuit cited Better with approval on this point: "the military may constitutionally terminate service of all those who engage in homosexual conduct—wherever it occurs and at whatever time the conduct takes place.” Steffan v. Perry, 41 F.3d 677, 685 (D.C.Cir.1994). Judge Wald in dissent also recognized the significance of the distinction between discharging members for engaging in homosexual conduct and discharging them merely for stating a homosexual orientation. Id. at 710 ("[t]he military itself recognizes a fundamental distinction between homosexual orientation and homosexual conduct”); id. at 711 ("[t]he most recent [military] policy ... explicitly acknowledges the distinction between homosexual status and homosexual conduct"); id. at 712 (“homosexual orientation and conduct are analytically distinct concepts") (Wald, J., dissenting). The Federal Circuit’s post-Cleburne decision in Woodward also relied on Better to uphold the Navy's authority to discharge members who engage in homosexual conduct. Woodward, 871 F.2d at 1076-77. . As then-Chairman of the Joint Chiefs of Staff, General Colin L. Powell, explained during his congressional testimony, "the majority of our young men and women are required to live in communal settings that force intimacy and provide little privacy. It may be hard to contemplate spending 60 days in the close confines of a submarine; sleeping in a foxhole with half a dozen other people; 125 people all living and sleeping in the same 40 by 50 foot, open berthing area, but this is exactly what we ask our young people to do.” S.Rep. No. 112, 103d Cong., 1st. Sess. 277 (1993).
NOONAN, Circuit Judge, concurring: In the name of the equality of all citizens to' serve in the armed forces of the United States, Mark A. Philips asks this court to reverse his honorable discharge from the United States Navy and to restore him to his rank of Petty Officer. To do so we would have to invalidate federal law and military regulations governing the armed forces. To do so we would have to take from the President and assign to ourselves a responsibility for a supervision of military discipline unknown to the Constitution and our traditions and beyond our role as judges of the United States. The Constitution in a special way confides the care of the military services to Congress, providing in Article I, section 8, that the Congress “shall have power ... to raise and support armies ...; to provide and maintain a navy; to make rules for the government and regulation of the land and naval forces.” The Constitution in a special way rests responsibility for the military services in the President, naming him explicitly in Article II, section 2, as the “Commander in Chief of the Army and Navy of the United States.” The Constitution does not exempt the military services from its own commands, but by virtue of its special treatment of this federal activity the Constitution creates a domain full of inequalities uncharacteristic of civilian life. See Parker v. Levy, 417 U.S. 733, 743-44, 94 S.Ct. 2547, 2555-56, 41 L.Ed.2d 439 (1974). The ranks established by federal statute stand as the first and most obvious of these distinctions by which American citizens are by law distinguished in their privileges and their entitlements. See 10 U.S.C. § 741, establishing the ranks and titles of commissioned officers. Inequality is inherent in the structure of the military services. There is a reason for the constitutional creation of this different world. On the ability of the nation to defend itself the existence of the nation depends. There is no Constitution, there are no citizens, if the nation disappears. The military foundation of the nation must be secure. To Congress the Constitur tion entrusts the power to make rules for its government; to the President the Constitution entrusts its command. In theory it might be urged that the powers conferred on Congress and the President by these clauses are not in kind different from the power conferred on Congress to regulate commerce among the states or the power conferred on the President to execute the laws of the United States, neither of which powers creates a domain distinctly different as far as the federal courts are concerned. Such has not been the way the government of the military has been understood. The constitutional clauses have been understood by the courts themselves to set off a sphere of American life where the courts must tread lightly. The rationale for this special deference is such that as a matter of logic the deference might be shown only as to combat decisions and not extended to the array of bureaucratic determinations that the vast military establishment must make, or the deference could only be required in war but not in peace. Fine lines of this sort, however, have not been drawn by the courts. In peace as in war, in the Pentagon as on the battlefield, the military services are treated as a universe distinct from the civilian world ruled by the ordinary decisions of courts. See Rostker v. Goldberg, 453 U.S. 57, 68, 101 S.Ct. 2646, 2653-54, 69 L.Ed.2d 478 (1981). In acknowledgment of the special constitutional status of the military, the courts have drawn back from a literal application of all parts of the Constitution to military activities. Not only are the armed services a world where classes of citizens are distinguished by law, but they constitute a world in which justice is afforded on different terms than it is provided to civilian citizens. Parker, 417 U.S. at 750, 94 S.Ct. at 2559. Before a military tribunal, a defendant’s constitutional rights are not the same as before a civilian court. There is no right to a trial by a jury of one’s peers. Kahn v. Anderson, 255 U.S. 1, 8-9, 41 S.Ct. 224, 225-26, 65 L.Ed. 469 (1921). The right of appeal from a criminal conviction is channelled and restricted. 28 U.S.C. § 1259 (certiorari to the Supreme Court from Court of Appeals for the Armed Forces); 10 U.S.C. § 867 (review by Court of Appeals for the Armed Forces); 10 U.S.C. § 866 (review by Court of Criminal Appeals). Habeas corpus does not exist in its full robustness. Burns v. Wilson, 346 U.S. 137, 138-40, 73 S.Ct. 1045, 1046-48, 97 L.Ed. 1508 (1953). The protections of the Fourth Amendment are limited. See Kurtz v. Moffitt, 115 U.S. 487, 504-05, 6 S.Ct. 148, 154-55, 29 L.Ed. 458 (1885); United States v. Stuckey, 10 M.J. 347, 357, 361 (C.M.A.1981); United States v. Middleton, 10 M.J. 123, 126-27 (C.M.A.1981); United States v. Jacoby, 11 C.M.A. 428, 430-31, 29 C.M.R. 244, 246-47, 1960 WL 4489 (1960); Mil.Rul.Evid. 311-317 (governing searches and seizures in armed forces proceedings). The vagueness test of the Fifth Amendment applies less strictly. Parker, 417 U.S. at 756, 94 S.Ct. at 2561-62. The remedies for racial discrimination are sharply and unpleasantly limited. Chappell v. Wallace, 462 U.S. 296, 303-05, 103 S.Ct. 2362, 2367-68, 76 L.Ed.2d 586 (1983). The first of our liberties, the free exercise of religion, also exists in the armed services in less than its constitutional amplitude. In employing its power to raise troops, Congress has been given almost a free hand to prefer some religions over others and to exempt some citizens for religious reasons and to deny exemption or discharge from service to other citizens also appealing to the free exercise of conscience as recognized by the Constitution. E.g., Negre v. Larsen, 401 U.S. 437, 462, 91 S.Ct. 828, 842, 28 L.Ed.2d 168 (1971). Within the ranks of the military, the dress code specified by regulations has been held to trump the religious practice dictated by Orthodox Judaism, so that a man will be discharged from service if he conscientiously obeys a precept of his religion. Goldman v. Weinberger, 475 U.S. 503, 106 S.Ct. 1310, 89 L.Ed.2d 478 (1986). If one asks what empirical evidence supported the Air Force’s invasion of Major Goldman’s religious rights, the Supreme Court cited only the regulations requiring uniformity in all details of dress and the opinion of certain Air Force officers that such uniformity was essential to the morale of the service. Id. at 508-10, 106 S.Ct. at 1313-14. There was no demonstration in any empirical way that in fact uniformity was indispensable. The opinion of the officers—a kind of educated guess guided largely by the past practice of insisting on uniformity—formed the rational basis, in the Supreme Court’s eyes, for restricting a basic liberty. In particular, military law governing sexual behavior is different. Compare Manual for Courts-Martial, United States, 1995, Article 120, ¶456 [hereinafter Manual] (maximum punishment for rape is death), with Cal.Penal Code § 264 (West 1988) (maximum punishment is 8 years imprisonment), and Wash.Rev.Code Ann. §§ 9.94A310, 9.94A.320, & 9A.44.045 (West 1988 & Supp. 1996) (maximum punishment is 23 1/3 years). See also Manual, Article 134, ¶ 62e (maximum punishment for adultery, not a crime in either Washington or California, is one year confinement plus dishonorable discharge and forfeiture of all pay and allowances); Manual, Article 134, ¶ 83e (maximum punishment for “fraternization” between officer and enlisted person, not a crime in the civilian context, is two years confinement plus dismissal and forfeiture of all pay and allowances). The difficulty of substituting our experience and our hunches for the military’s is particularly evident in the matter of sexual behavior. The military services attempt to govern sexual conduct in ways not undertaken in civilian life. The laws and regulations represent a good guess at what unit morale requires, but if an advocate of equality challenged their rationality, what kind of empirical case could be made in their defense? The rational justification for the various sanctions meted out for sexual offenses depends on a hunch as to which conduct is worse from a military standpoint. The dissent in our case challenges the evidence supporting the military judgment that the challenged regulations and statute are necessary for unit morale. If precedent is any guide, that kind of reexamination of the basis for the military judgment is unwarranted. Military judgments are the product of personal military experience and past institutional experience. They are apt to include unarticulated premises and, it may be, incorporate prejudices as well as prudential observations: an institution tends to project its past practice as a necessity of its future existence. It is not the task of the judiciary to second guess when competent military officers conclude that a given practice is necessary for the good of the service. In a system honeycombed with statutory distinctions drawn on the basis of unequal ranks, it would be a major work of rationalization to justify every discrimination as rationally necessary for combat efficiency. We lack the training and the experience to do so. We lack the constitutional capacity to substitute our commands for the military’s. See Solorio v. United States, 483 U.S. 435, 448, 107 S.Ct. 2924, 2931, 97 L.Ed.2d 364 (1987) (“[Cjivil courts are ‘ill equipped’ to establish policies regarding matters of military concern.”); Rostker, 453 U.S. at 65-66, 101 S.Ct. at 2652. The dissent urges that the end of racial segregation in the military was opposed by objections analogous to those raised by the Navy here; the dissent’s implication is that in our case, as in the case of racial segregation, the objections are groundless. The analogy does not work. First, racial segregation in the military was ended not by the judiciary but by the Commander-in-Chief. Exec. Order Nos. 9,980 & 9,981, 13 Fed.Reg. 4,311-13 (1948). Second, the ending of racial segregation in the military conformed to an explicit constitutional command—the badges of slavery were removed as the Thirteenth Amendment requires. In both respects the analogy is deficient and affords neither precedent nor warrant for judicial intervention in the military in our ease. In sum, while the courts retain ultimate constitutional authority over all aspects of American life, the courts do so only in accordance with the allocation of powers effected by the Constitution. We the judges are not all-powerful, all-wise overseers. The liberties of all depend upon courts staying within the role the Constitution has allotted them. In acknowledgment of that limitation, we have recognized that Congress and the President have special responsibilities over military activities, that not every provision of the Constitution can be enforced across the board within the military, and that in the unequal military society created by statute there are distinctions and discriminations which, if supported by military opinion as to their necessity, cannot be disturbed by a judge’s fiat. I therefore vote to affirm the judgment of the district court.
FLETCHER, Circuit Judge, dissenting: The Navy discharged Petty Officer Mark A Philips because he said that he is gay and that he engaged in private, off-base, consensual same-sex sexual activity. Because I conclude the military’s policy of differentiating between the private sexual activities of its heterosexual and homosexual service members is not rationally related to a legitimate government interest, I respectfully dissent. I. The military’s “don’t ash/don’t tell” policy is not directed to prohibiting public homosexual acts or sexual misconduct by gay men and lesbians. Elaborate military regulations and the Uniform Code of Military Justice (“UCMJ”), 10 U.S.C. §§ 836-940, already punish sexual misconduct such as sexual harassment, sexual assault, fraternization, and indecent exposure, and sodomy is prohibited under the UCMJ for both heterosexual and homosexual service members. 10 U.S.C. § 925. However, a simple statement that one is gay, and honest answers to questions about one’s sexual activity, can mandate discharge under the policy. Philips contends that the policy violates his right to equal protection by subjecting him to mandatory discharge for engaging in sexual acts with a man while a heterosexual man would not be discharged for engaging in the same sexual acts with a woman. He argues that the only basis for the policy is the military’s desire to accommodate the biases and prejudices of heterosexual service members and that there is no legitimate reason for treating heterosexual service members differently than homosexual service members. The majority concludes that the policy is constitutional because it advances legitimate military goals. As Philips was separated for engaging in same-sex sexual activity (as well as for stating that he is gay), we must review the constitutionality of the policy as it relates to the differential treatment of same-sex sexual activity and opposite-sex sexual activity. Everyone agrees that the current policy treats homosexual service members and heterosexual service members differently. A statement by a gay service member that he is gay will result in discharge, whereas a statement by a heterosexual service member that he is heterosexual will not. A statement by a gay service member- that he has had sexual relations with a member of the same sex will result in discharge, whereas a statement by a heterosexual service member that he has had sexual relations with a member of the opposite sex will not. Evidence that a service member has engaged in sexual activity with a member of the same sex will result in discharge, whereas evidence that a service member has engaged in the same sexual activity with a member of the opposite sex will not. It is clear that Philips would not have been discharged had his sexual partners been women rather than men. That homosexual and heterosexual service members are treated differently does not in itself render the policy unconstitutional. Where a law neither burdens a fundamental right nor targets a suspect class, the courts will uphold the differential classification “so long as it bears a rational relation to some legitimate end.” Romer v. Evans, — U.S. -, -, 116 S.Ct. 1620, 1627, 134 L.Ed.2d 855 (1996) (applying meaningful rational-basis review to Colorado’s discriminatory classification of gays and lesbians); High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 574 (9th Cir.1990). While rational-basis review “is not a license for courts to judge the wisdom, fairness, or logic of legislative choices,” Heller v. Doe, 509 U.S. 312, 319, 113 S.Ct. 2637, 2642, 125 L.Ed.2d 257 (1993) (quoting FCC v. Beach Communications, Inc., 508 U.S. 307, 313, 113 S.Ct. 2096, 2101, 124 L.Ed.2d 211 (1993)), neither is it an abdication of the court’s responsibility to strike down arbitrary classifications. [E]ven in the ordinary equal protection case calling for the most deferential of standards, we insist on knowing the relation between the classification adopted and the object to be attained. The search for the link between classification and objective gives substance to the Equal Protection Clause; it provides guidance and discipline for the legislature, which is entitled to know what sorts of laws it can pass; and it marks the limits of our own authority. Romer, — U.S. at -, 116 S.Ct. at 1627 (critically examining the government’s proffered rationales and the relationship between means and ends). We must examine the possible justifications for the policy in light of the factual context in the record. See Cleburne v. Cleburne Living Center, 473 U.S. 432, 448, 105 S.Ct. 3249, 3258, 87 L.Ed.2d 313 (1985) (“Because in our view the record does not reveal any rational basis for believing that the Featherston home would pose any special threat to the city’s legitimate interests, we affirm the judgment below insofar as it holds the ordinance invalid as applied in this case.”) (emphasis added); Heller, 509 U.S. at 321, 113 S.Ct. at 2643 (“[E]ven the standard of rationality ... must find some footing in the realities of the subject addressed by the legislation.”); Pruitt v. Cheney, 963 F.2d 1160, 1166 (9th Cir.1992) (“[I]n High Tech Gays, upon plaintiffs’ showing of discrimination, we required the government to establish on the record that its policy had a rational basis.”), cert. denied, 506 U.S. 1020, 113 S.Ct. 655, 121 L.Ed.2d 581 (1992). II. In order to survive rationality review, there must be a legitimate reason why homosexual but not heterosexual conduct is barred: The majority, with circular logic, implicitly concludes only that “homosexual conduct” is prohibited in order to prohibit “homosexual conduct.” The primary justification proffered for the “don’t ask/don’t tell” policy is “unit cohesion.” “Good morale,” “discipline,” and the ability to recruit and retain military personnel are related sub-interests. While unit cohesion is surely a legitimate government interest, the current policy simply does not farther this interest in a rational and reasonably related way. There is no reason to believe that engaging in private, consensual, off-base sexual activity with a member of the same sex somehow makes one a worse soldier than engaging in the same conduct with a member of the opposite sex. Indeed, government witnesses testified that gay soldiers are as effective as heterosexual soldiers. The government has acknowledged that gay and lesbian service members are no less able to perform their duties. Thus, “unit cohesion” is not harmed by gay service members’ ability to contribute to their unit. The only way, then, that “unit cohesion” could conceivably be affected by the presence of gay men and lesbians in the military is by the negative reactions of service members opposed to homosexuality. This is evident from the structure of the new prohibitions. If a service member keeps his homosexual orientation secret, then he is allowed to remain in the military. However, if a service member acknowledges that he is gay, then he is a threat to “unit cohesion” and must be discharged. The only material difference in these two situations is that information regarding the service member’s homosexuality has been- communicated to other service members, who might react negatively to the information and threaten unit cohesion. Even assuming that such a reaction would occur, its accommodation is not a legitimate government interest. Disapproval of homosexuality on the part of heterosexual service members is an impermissible reason for discriminating against gay service members. See Romer, — U.S. at -, 116 S.Ct. at 1627-29 (implicitly rejecting dissent’s contention that moral disapproval of homosexuality creates a legitimate state interest justifying discrimination against homosexuals). Otherwise, discrimination against an unpopular class could always be justified by reference to the moral disapproval of the majority- The goal of promoting “unit cohesion” is illegitimate if it is based solely on biases that cannot be tolerated under the laws. “Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.” Palmore v. Sidoti, 466 U.S. 429, 433, 104 S.Ct. 1879, 1882, 80 L.Ed.2d 421 (1984). “[M]ere negative attitudes ... are not permissible bases” for disfavoring a class of citizens. Cleburne, 473 U.S. at 448, 105 S.Ct. at 3259. “ ‘[I]f the constitutional conception of ‘equal protection of the laws’ means anything, it must at the veiy least mean that a bare ... desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.’ ” Romer, — U.S. at-, 116 S.Ct. at 1628 (quoting United States Dep’t of Agric, v. Moreno, 413 U.S. 528, 534, 93 S.Ct. 2821, 2826, 37 L.Ed.2d 782 (1973)). Just as the desire to accommodate other citizens’ personal or religious objections to homosexuality did not suffice to uphold Amendment 2, see Romer, — U.S. at -, 116 S.Ct. at 1629, the desire to protect a child from the racial prejudices of others did not provide a legitimate reason for favoring a same-race couple over an interracial couple in awarding custody of a child, see Palmore, 466 U.S. at 433, 104 S.Ct. at 1882, and the negative attitudes of property owners did not provide a legitimate justification for allowing rejection of a zoning permit for a home fo