## Facts

- Paul G. Thomasson, a U.S. Navy lieutenant with an exemplary service record, submitted a written statement declaring that he was gay.
- Under § 571 of the National Defense Authorization Act for Fiscal Year 1994 and an implementing Department of Defense directive, such a statement created a rebuttable presumption that the member had a propensity or intent to engage in homosexual acts.
- The statutory scheme required separation unless the service member rebutted the presumption.
- Thomasson declined to present rebuttal evidence, stating he would not disprove a charge about sexual conduct that was not made against him.
- The Navy honorably discharged him based on the statement and unrebutted presumption.
- Thomasson sought declaratory and injunctive relief, alleging violations of equal protection principles under the Fifth Amendment, the First Amendment, procedural and substantive due process, and the Administrative Procedure Act (APA).
- The district court granted summary judgment for the government; the Fourth Circuit heard the appeal en banc.

## Issues

1. Whether the statute and directive requiring separation based on a statement of homosexuality and a presumption of propensity violate equal protection principles or substantive due process under the Fifth Amendment.
2. Whether treating a service member’s statement of sexual orientation as a basis for separation violates the First Amendment.
3. Whether the separation procedures and rebuttable presumption deny procedural due process.
4. Whether the directive and its application are unlawful under the Administrative Procedure Act.

## Decision

- The en banc Fourth Circuit affirmed summary judgment for the government and upheld the statute and directive.
- The court applied rational basis review, holding the classification was constitutionally permissible in light of Congress’s asserted military interests (including cohesion, morale, discipline, privacy, and readiness).
- The court held the policy did not violate the First Amendment because it regulated military fitness and conduct-related concerns and treated certain statements as evidence of propensity, rather than prohibiting speech as such.
- The court held procedural due process was satisfied because Thomasson received notice and an opportunity to be heard and to rebut the presumption, which he chose not to do.
- The court rejected the APA challenge, concluding the separation decision was supported by the record and was not arbitrary or capricious.

## Legal Principles

- Courts give substantial deference to Congress and military authorities when reviewing personnel rules said to affect discipline, cohesion, privacy, and readiness.
- Sexual-orientation-related separation policies in the military (as framed around conduct and propensity) are reviewed under rational basis unless a higher level of scrutiny is required; a policy survives if rationally related to legitimate governmental interests.
- The government may, in this context, treat certain statements as evidentiary of a propensity relevant to service eligibility without necessarily imposing an unconstitutional speech restriction.
- Procedural due process is generally satisfied where a service member receives notice, a hearing opportunity, and a meaningful chance to rebut an adverse presumption; failure to use that opportunity weakens a claim that the process itself was deficient.
- Agency implementation of congressionally authorized military separation rules is not arbitrary or capricious under the APA where the decision rests on the member’s statement and the member declines to rebut a dispositive presumption.

## Conclusion

The Fourth Circuit, sitting en banc, sustained the military’s “Don’t Ask, Don’t Tell” separation framework as applied to an officer discharged after stating he was gay and declining to rebut the resulting statutory presumption, holding the policy constitutional under deferential rational basis review and consistent with the First Amendment, due process, and the APA.


Thomasson v. Perry, 80 F.3d 915 (4th Cir. 1996) (en banc)