Thomasson v. Perry

80 F.3d 915, 1996 WL 157451

• Court: Court of Appeals for the Fourth Circuit
• Decided: April 5, 1996
• Docket: No. 95-2185
• Status: Published

Opinions

Affirmed by published opinion. Chief Judge WILKINSON wrote the majority opinion, in which Judges RUSSELL, WIDENER, MURNAGHAN, WILKINS, NIEMEYER, HAMILTON, LUTTIG, and WILLIAMS joined. Judge MURNAGHAN wrote a concurring opinion. Judge LUTTIG wrote a concurring opinion, in which Judges RUSSELL, WIDENER, WILKINS, HAMILTON, and WILLIAMS joined. Judge HALL wrote a dissenting opinion, in which Judges ERVIN, MICHAEL, and MOTZ joined.

OPINION

WILKINSON, Chief Judge:

Former Navy Lieutenant Paul G. Thomas-son challenges the constitutional validity of Section 571 of the National Defense Authorization Act for Fiscal Year 1994, 10 U.S.C. § 654, and the Department of Defense Directive that governs homosexuality in the military, pursuant to which Thomasson received an honorable discharge from the Navy. We hold that the challenged statute is constitutional and that the discharge represented an appropriate exercise of military authority under the Act. In so holding, we affirm the judgment of the district court.

I.

A.

We shall set forth at the outset the relevant statutory framework in this case. In November, 1993, after lengthy deliberations, Congress approved and the President signed the National Defense Authorization Act, which codified a policy with respect to homosexuality and the armed forces. That policy came to be colloquially known as “Don’t Ask, Don’t Tell.” In a series of findings that established the predicate for the policy, Congress declared that “[military life is fundamentally different from civilian life,” 10 U.S.C. § 654(a)(8), and that “[s]uccess in combat requires military units that are characterized by high morale, good order and discipline, and unit cohesion,” 10 U.S.C. § 654(a)(6). Thus acknowledging that the demands of military life are distinctive, Congress further determined that “[t]he prohibition against homosexual conduct is a longstanding element of military law that continues to be necessary in the unique circumstances of military service.” 10 U.S.C. § 654(a)(13). It also found that service members who demonstrate a “propensity or intent to engage in homosexual acts [ ] 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)(15).

In order to avoid this risk, the Act provides that members shall be separated from the armed services if one of three findings is made: the service member engaged or attempted to engage in homosexual acts, 10 U.S.C. § 654(b)(1); the service member married or attempted to marry a person of the same sex, 10 U.S.C. § 654(b)(3); or the service member “stated that he or she is a homosexual ... unless there is a further 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.” 10 U.S.C. § 654(b)(2). It is pursuant to this last provision — the “statements” provision — that Thomasson was honorably discharged from the Navy.

In December, 1993, the Department of Defense announced Directives implementing the Act. Like the statute, the applicable Directive provides for separation if an officer “has engaged in ... homosexual act[s],” “has married or attempted to marry” another of the same sex, or “has made a statement that he or she is a homosexual” and fails to demonstrate 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.” DoD Dir. 1332.30, Enel. 2,¶ C, at 2-1, 2-2. The Directive also provides that the officer’s statement “creates a rebuttable presumption that the officer engages in homosexual acts or has a propensity or intent to do so.” DoD Dir. 1332.30, Enel. 2, ¶ C.l.b., at 2-2. The officer is informed of this presumption and afforded an opportunity to rebut it by presenting appropriate evidence. Id. Whether the presumption has been rebutted is determined by a variety of factors: whether the officer has engaged in homosexual acts; the officer’s credibility; testimony from others about the officer’s past conduct; the nature and circumstances of the officer’s statement; and any other evidence relevant to whether the officer has a propensity or intent to engage in homosexual acts. Id.

B.

Paul G. Thomasson, the plaintiff in this case, rose to the rank of Lieutenant in his ten year Naval career. Thomasson’s service record has been a commendable one. Thomasson v. Perry, 895 F.Supp. 820, 823, 829 (E.D.Va.1995). Thomasson consistently received the highest possible performance ratings, he was one of a few junior officers selected for a Joint Chiefs of Staff Internship, and his supervisors, including senior Naval officers, praised his work. Rear Admiral Lee F. Gunn, for example, stated in an evaluation that Thomasson was “a true ‘front runner’ who should be groomed for the most senior leadership in tomorrow’s Navy.”

In early March, 1994, soon after reading the Navy message implementing the DoD Directives, Thomasson wrote and presented a letter to four Admirals for whom he served. Noting in the letter that “the time has come when I can remain silent no longer,” Thom-asson stated “I am gay” and expressed strong disagreement with the military’s policy. In accordance with that policy, the Navy initiated separation proceedings against him. In May, 1994, a three-member Board of Inquiry convened and conducted a two day hearing. At the hearing, the Navy conceded that Thomasson had an “enviable” service record. But in seeking his separation, it relied both upon Thomasson’s declaration that he was gay and the testimony of one of the Admirals who received the letter. The Navy advised the Board of the congressional findings that supported the Act and the meaning of the military’s Directive. Under the Act and Directive, it argued, Thomas-son’s letter gave rise-to a presumption that he had a propensity or -intent to engage in homosexual acts which, if unrebutted, warranted separation.

For his part, Thomasson presented a copy of his service record, live and written testimony from co-workers who expressed admiration for his capabilities and professionalism, a statement recounting his career and his decision to write the letter announcing that he was gay, and expert testimony on both homosexuality and the meaning of the military’s policy. But Thomasson did not, as the district court observed, tender evidence to rebut the presumption that arose from his declaration of homosexuality; that is, he presented no specific evidence on whether he engaged in or had a propensity or intent to engage in homosexual acts. 895 F.Supp. at 823. In fact, Thomasson’s statement averred that he would “not go further in degrading myself by disproving a charge about sexual conduct that no one has made.” Id. The Navy argued that this defense fell short of rebutting the presumption that arose from Thomasson’s declaration of his homosexuality, and therefore that he should be honorably discharged.

The Board unanimously found that Thom-asson’s announcement of his homosexuality gave rise to a presumption of a propensity or intent to engage in homosexual acts and that this presumption had not been rebutted. Because he thus violated Navy policy, Thomas-son “failed to demonstrate acceptable qualities of leadership required of an officer in his grade” and the Board recommended that Thomasson be honorably discharged. A three-member Board of Review unanimously upheld this finding, and the Chief of Navy Personnel signed Thomasson’s discharge orders. Id. He was scheduled to be separated in February, 1995.

Thomasson brought this action in February, 1995, seeking declaratory and injunctive relief to prevent his discharge. The district court preliminarily enjoined Thomasson’s discharge pending resolution of his claims. Ultimately, however, the court granted summary judgment for the government. It held that the Act and Directive did not violate equal protection of the laws, the First Amendment, the Due Process Clause or the Administrative Procedure Act. Id. at 831. Thomasson appealed that decision and his subsequent discharge from the Navy. A panel of this court heard argument in September, 1995, and the full court subsequently voted to hear the ease en banc.

II.

A court cannot review a ease without considering the context in which it arises. We shall explore that context in some detail. We do so out of a belief that this decision implicates in .the most fundamental way the role of courts in our democratic system. Separation of powers principles form an integral part of the process of judicial review. To overlook these principles would be as much of an omission as a failure to address the substance of Thomasson’s particular constitutional claims.

What Thomasson seeks to upset here is a carefully crafted national political compromise, one that was the product of sustained and delicate negotiations involving both the Executive and Legislative branches of our government. While still a candidate, President Clinton expressed an intention to revisit the military’s policy on homosexual service members. After he was sworn into office, the President on January 29, 1993, directed the Secretary of Defense to submit to him a draft Executive Order by July, 1993, “ending discrimination on the basis of sexual orientation in determining who may serve in the Armed Forces.” Memorandum on Ending Discrimination in the Armed Forces, 1 Pub. Papers 23 (Jan. 29, 1993). The President instructed the Secretary to consult with the Joint Chiefs of Staff, Congress, and concerned individuals in developing the Order; the Order was to be accompanied by a study, which would recommend how the policy revision could be carried out in a way that was “practical, realistic, and consistent with the high standards of combat effectiveness and unit cohesion our Armed Forces must maintain.” Id. While this review was underway, an interim policy was put in place which, in part, dictated that new recruits would no longer be questioned about their sexual orientation.

The issue quickly generated interest in Congress. In early February of 1993, an amendment was offered in the Senate to the Family and Medical Leave Act to overturn the interim policy by freezing in place the military’s pre-existing approach with respect to homosexual service members. 139 Cong. Rec. S1263 (daily ed. Feb. 4, 1993). This effort failed, however, 139 Cong. Rec. S1338-9 (daily ed. Feb. 4, 1993), and the Senate instead adopted a provision calling for a review of the military’s policy by the Secretary of Defense and the Senate Armed Services Committee, a review that was to be completed by July, 1993, 139 Cong. Rec. S1263, S1338 (daily ed. Feb. 4, 1993). After House approval, this amendment was enacted into law. Pub.L. 103-3 § 601, 107 Stat. 6, 28-9 (1993).

In the first seven months of 1993, both the Executive Branch and Congressional committees engaged in an extensive review of the military’s policy. The Senate Armed Services Committee held no less than nine days of hearings, including a field hearing at the Norfolk Naval Complex, taking testimony from nearly fifty witnesses. The House Armed Services Committee held five days of hearings. Witnesses who appeared at these hearings represented a broad range of views and backgrounds. They included: the Secretary of Defense and the Chairman of the Joint Chiefs of Staff; military and legal experts; enlisted personnel, officers and senior military leaders; and activists supporting and opposing the military’s policy. See Assessment of the Plan to Lift the Ban on Homosexuals in the Military: Hearings Before the Military Forces and Personnel Subcomm. of the House Comm, on Armed Services, 103d Cong., 1st Sess. (1993) (Assessment of the Plan: House Hearings); Policy Concerning Homosexuality in the Armed Forces: Hearings Before the Senate Comm, on Armed Services, 103d Cong., 1st Sess. (1993) (Senate Hearings); Policy Implications of Lifting the Ban on Homosexuals in the Military: Hearings Before the House Comm, on Armed Services, 103d Cong., 1st Sess. (1993) (Policy Implications: House Hearings).

At the same time, the Department of Defense conducted its own exhaustive review. It convened a military working group composed of senior members of each service, commissioned a study by the Rand Corporation, initiated regular consultations with the Joint Chiefs of Staff and leaders of each service, studied the history of the. military’s response to social change, and consulted legal experts. General Colin N. Powell described the consideration by the Joint Chiefs of Staff in this way: “We have challenged our assumptions. We have argued with each other. We have consulted with commanders at all levels.” Assessment of the Plan: House Hearings, at 31.

On July 19, 1993, President Clinton announced a new policy on homosexuals in the military developed as a result of the Defense Department’s review. The President and Secretary of Defense explained that under the new policy applicants for military service would not be asked or required to reveal their sexual orientation, but once in the service they would be separated for homosexual conduct. 1 Pub. Papers 1111 (July 19, 1993); Senate Hearings, at 705 (Statement of Secretary of Defense, Les Aspin). The Armed Services Committees of the House and Senate then reviewed the policy in detail.

In late July, 1993, drawing on the combined wisdom of this exhaustive examination in the Executive and Legislative branches, the House and Senate Armed Services Committees proposed to codify the military’s policy on homosexual service members. The Senate stated that its proposal was developed only after the committee considered “a wide range of experiences, including those of current and former servicemembers who have publicly identified themselves as gay or lesbian. The committee received a broad variety of views.... The committee carefully considered all points of view in developing its recommendations.” S.Rep. No. 112, 103d Cong., 1st Sess. 270 (1993). Likewise, the House committee reported that its recommendation was based on “an extensive hearing record, as well as a full consideration of the extended public debate on this issue.” H.R.Rep. No. 200, 103d Cong., 1st Sess. 287 (1993), reprinted in 1993 U.S.C.C.A.N. 2013, 2074.

Before the policy was finally enacted, the full House and Senate undertook a thorough debate of it, and both houses considered amendments on the floor. Each house discussed and rejected companion amendments that, in place of the proposed codification, would have permitted the President and military leaders to develop whatever policy they deemed appropriate. 139 Cong. Rec. S11168-11228 (daily ed. Sept. 9, 1993); 139 Cong. Rec. H7080-84 (daily ed. Sept.. 28, 1993). The House also debated and rejected a proposal to require the Defense Department to resume its questioning of new recruits about their sexual orientation. 139 Cong. Rec. H7084-86 (daily ed. Sept. 28, 1993).

Both houses ultimately approved the committee proposals. In the words of the Chairman of the Senate Armed Services Committee, the provision was “as fair as we can be to the individuals involved, while, at the same time, maintaining the kind of unit cohesion and military effectiveness that we expect our military services to be able to carry out and perform for the country.” 139 Cong. Rec. S11205 (daily ed. Sept. 9, 1993); see also 139 Cong. Rec. H7086-89 (daily ed. Sept. 28, 1993). Finally, the Act was signed by the President on November 30,1993.

What Thomasson challenges, therefore, is a statute that embodies the exhaustive efforts of the democratically accountable branches of American government and an enactment that reflects month upon month of political negotiation and deliberation. Such products of the democratic process are seldom completely tidy or universally satisfactory, but it is precisely on that account that they deserve judicial respect. An Act of Congress reflects a range of views that a judicial decision cannot replicate. Indeed, Justice Holmes admonished that judging the constitutionality of an Act of Congress is “the gravest and most delicate duty” that a court performs. Blodgett v. Holden, 275 U.S. 142, 148, 48 S.Ct. 105, 107, 72 L.Ed. 206 (1927). And “[gjiven the deference due ‘the duly enacted and carefully considered decision of a coequal and representative branch of our Government’, [this court cannot] lightly second-guess such legislative judgments.... ” Westside Community Bd. of Ed. v. Mergens, 496 U.S. 226, 251, 110 S.Ct. 2356, 2372, 110 L.Ed.2d 191 (1990) (O’Connor, J.) (quoting Walters v. National Assn. of Radiation Survivors, 473 U.S. 305, 319, 105 S.Ct. 3180, 3188, 87 L.Ed.2d 220 (1985)) (other citation omitted).

Thomasson requests that we simply set aside these lengthy labors of the legislative process and supplant with our own judicial judgment the product of a serious' and prolonged debate on a subject of paramount national importance. This would, however, be a step of substantial gravity. The courts were not created to award by judicial, decree what was not achievable by political consensus. Our power to resolve particular controversies carries with it an obligation to respect general solutions. To overturn those solutions in the absence of a clear constitutional mandate would transform the judiciary into an instrument of disenfranchisement for all who use the political process to register the democratic will.

The Supreme Court could have been speaking about this very Act when it observed that the question “received considerable national attention and was the subject of wide-ranging public debate [and] was extensively considered by Congress in hearings, floor debate, and in committee.” Rostker v. Goldberg, 453 U.S. 57, 72, 101 S.Ct. 2646, 2655, 69 L.Ed.2d 478 (1981) (sustaining constitutionality of all-male draft registration). Congress has enacted and the President has signed legislation providing that a propensity or intent to engage in homosexual acts is incompatible with the distinctive requirements of military service. This considered judgment on the part of the coordinate branches of our government is one that the third branch has a solemn duty to respect.

III.

Thomasson’s challenge cannot be viewed apart from the special legal status of military life. The Constitution assigns the conduct of military affairs to the Legislative and Executive branches. There is nothing-timid or half-hearted about this constitutional allocation of authority. Rather, the Constitution states fully and directly that th¿ governance of military affairs is a shared responsibility of Congress and the President:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and'Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States....

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces; To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing-such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

U.S. CONST, art I, § 8.

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States;

U.S. CONST, art II, § 2.

This constitutional framework was adopted by the Founders in order that our newly christened nation might best defend itself. See Federalist No. 23 (Alexander Hamilton) (Mentor, 1961). As Hamilton explained:

The authorities essential to the common defense ... ought to exist without limitation because it is impossible to foresee or to define the extent and variety of national exigencies, and the correspondent extent and variety of the means which may be necessary to satisfy them. The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed.

Id. at 153 (emphasis in original). Hamilton believed that this authority should include “any matter essential to the formation, direction, or support of the NATIONAL FORCES.” Id. at 154 (emphasis in original).

Thus, it is no surprise that the Founders failed to provide the federal judiciary with a cheek over the military powers of Congress and the President. See U.S. CONST, art III. To do so would have placed, in Hamilton’s words, a “constitutional shackle” on the ability of Congress and the President to carry out the duties attendant to national security. Moreover, the virtue of placing military power in the democratic branches was obvious: “[I]f the majority should be really disposed to exceed the proper limits, the community will be warned of the danger [by the minority], and [the community] will have an opportunity of taking measures to guard against it.” Federalist No. 26, at 172 (Alexander Hamilton). The federal judiciary— appointed with life tenure — was not regarded as an appropriate repository for such immense power and accordingly was given “no influence over either the sword or the purse.” Federalist No. 78, at 465 (Alexander Hamilton).

Thus, our Constitution does not authorize the courts to lay and collect taxes to provide for the common defense. The Constitution does not allow the courts to declare war or to raise armies. The judiciary has no authority to make rules for the regulation of military forces. Nor does the Constitution declare the Supreme Court to be the Commander in Chief. By comparison to its predecessors, Article III is a sparse provision, granting no enumerated powers of any kind, but merely jurisdiction “with such Exceptions, and under such Regulations as the Congress shall make.” -U.S. CONST, art III, § 2.

Because .“the Constitution contemplates that Congress has ‘plenary control over rights, duties, and responsibilities in the framework of the Military Establishment, including regulations, procedures, and remedies related to military discipline,’ ” Weiss v. United States, 510 U.S. 163,-, 114 S.Ct. 752, 760, 127 L.Ed.2d 1 (1994) (quoting Chappell v. Wallace, 462 U.S. 296, 301, 103 S.Ct. 2362, 2366, 76 L.Ed.2d 586 (1983)), the Supreme Court has consistently approached congressional decisions made pursuant to the national security clauses with great respect. In fact, “judicial deference to [a] congressional exercise of authority 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.” Rostker, 453 U.S. at 70, 101 S.Ct. at 2655; see also Weiss, 510 U.S. at -, 114 S.Ct. at 760-61.

The deference mandated by the Constitution has extended to a variety of challenges to Congressional and Executive decisions: Congress’ power to order members of the National Guard into service, Perpich v. Department of Defense, 496 U.S. 334, 110 S.Ct. 2418, 110 L.Ed.2d 312 (1990); the President’s authority as Commander in Chief to “classify and control access to information bearing on national security,” Department of the Navy v. Egan, 484 U.S. 518, 527, 108 S.Ct. 818, 824, 98 L.Ed.2d 918 (1988); Congress’ decision to require only males to register for the draft, Rostker, 453 U.S. at 57, 101 S.Ct. at 2646; Congress’ regulation of the conduct of military personnel under the Uniform Code of Military Justice, Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974); and the President’s discretion as Commander in Chief to grant a military commission, Or-loff v. Willoughby, 345 U.S. 83, 73 S.Ct. 534, 97 L.Ed. 842 (1953). Courts have also held that the question of a war’s legality is nonjus-ticiable. Atlee v. Laird, 347 F.Supp. 689 (E.D.Pa.1972), aff'd summarily sub nom. Atlee v. Richardson, 411 U.S. 911, 93 S.Ct. 1545, 36 L.Ed.2d 304 (1973).

Aside from the Constitution itself, the need for deference also arises from the unique role that national defense plays in a democracy. Because our nation’s very preservation hinges on decisions regarding war and preparation for war, the nation collectively, as expressed through its elected officials, faces “ ‘the delicate task of balancing the rights of servicemen against the needs of the military.’ ” Weiss, 510 U.S. at-, 114 S.Ct. at 761 (quoting Solorio v. United States, 483 U.S. 435, 447, 107 S.Ct. 2924, 2931, 97 L.Ed.2d 364 (1987)). To the degree that the judiciary is permitted to circumscribe the national security options of our elected officials, it “decreases the ability of the political branches to impose their will on another [nation and at] the worst, it permits the imposition of the will of another [nation] on the United States.” James M. Hirschhorn, The Separate Community: Military Uniqueness and Servicemen’s Constitutional Rights, 62 N.C. L.Rev. 177, 237-238 (1983). After all, “[u]nless a society has the capability ... to defend itself from the aggressions of others, constitutional protections of any sort have little meaning.” Wayte v. United States, 470 U.S. 598, 612, 105 S.Ct. 1524, 1533, 84 L.Ed.2d 547 (1985).

National defense decisions not only implicate each citizen in the most profound way. Such decisions also require policy choices, which the legislature is equipped to make and the judiciary is not. “Congress, working with the Executive Branch, has developed a system of military criminal and administrative law that carefully balances the rights of. individual servicemembers and the needs of the armed forces.” Sam Nunn, The Fundamental Principles of the Supreme Court’s Jurisprudence in Military Cases, 29 Wake Forest L.Rev. 557, 566 (1994). While Congress and the President have access to intelligence and testimony on military readiness, the federal judiciary does not. While Congress and the members of the Executive Branch have developed a practiced expertise by virtue of their day-to-day supervision of the military, the federal judiciary has not. The judiciary has no Armed Services Committee, Foreign Relations Committee, Department of Defense, or Department of State. As the Supreme Court has noted, “the lack of competence on the part of the courts [with respect to military judgments] is marked.” Rostker, 453 U.S. at 65, 101 S.Ct. at 2652. In fact,

it is difficult to conceive of an area of governmental activity in which the courts have less competence. The complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force are essentially professional military judgments, subject always to civilian control of the Legislative and Executive Branches.

Gilligan v. Morgan, 413 U.S. 1, 10, 93 S.Ct. 2440, 2446, 37 L.Ed.2d 407 (1973).

Finally, the imprimatur of the President, the Congress, or both imparts a degree of legitimacy to military decisions that courts cannot hope to confer. Even when there is opposition to a proposed change — as when Congress abolished flogging in the 19th century or when President Truman ended the military’s racial segregation in 1948, see Hirschhorn, 62 N.C. L.Rev. at 243-^45 — the fact that the change emanates from the political branches minimizes both the likelihood of resistance in the military and the probability of prolonged societal division. In contrast, when courts impose military policy in the face of deep social division, the nation inherently runs the x’isk of long-term social discord because large segments of our population have been deprived of a democratic means of change. In the military context, such divisiveness could constitute an independent threat to national security.

C.

Parallel to the deference owed Congressional and Presidential policies is deference to the decision-making authority of military personnel who “have been charged by the Executive and Legislative Branches with carrying out our Nation’s military policy.” Goldman v. Weinberger, 475 U.S. 503, 508, 106 S.Ct. 1310, 1313, 89 L.Ed.2d 478 (1986). Judicial interference with the subordinate decisions of military authorities frustrates the national security goals that the democratic branches have sought to achieve.

The Supreme Court has recognized the need for deference when facing challenges to a variety of military decisions: a policy that prohibited the wearing of headgear in certain circumstances, Goldman, 475 U.S. at 506, 106 S.Ct. at 1312-13 (noting that the military is “a specialized society separate from civilian society”); an Air Force regulation that required service members to obtain permission before circulating petitions on bases, Brown v. Glines, 444 U.S. 348, 357, 100 S.Ct. 594, 601, 62 L.Ed.2d 540 (1980) (noting that “the military must possess substantial discretion over its internal discipline”); a base policy that prohibited certain political activity on base premises, Greer v. Spock, 424 U.S. 828, 837, 96 S.Ct. 1211, 1217, 47 L.Ed.2d 505 (1976) (noting “the special constitutional function of the military in our national life”); and military court-martial proceedings, Schlesinger v. Councilman, 420 U.S. 738, 757, 95 S.Ct. 1300, 1313, 43 L.Ed.2d 591 (1975) (noting that “[t]o prepare for and perform its vital role, the military must insist upon a respect for duty and discipline without counterpart in civilian life”).

The need for deference also derives from the military’s experience with the particular exigencies of military life. Among these is the attainment of unit cohesion — “the subordination of personal preferences and identities in favor of the overall group mission” and “the habit of immediate compliance with military procedures and orders.” Goldman, 475 U.S. at 508, 106 S.Ct. at 1313. Should the judiciary interfere with the intricate mix of morale and discipline that fosters unit cohesion, it is simply impossible to estimate the damage that a particular change could inflict upon national security — “there is no way to determine and correct the mistake until it has produced the substantial and sometimes irreparable cost of [military] failure.” Hirschhorn, 62 N.C. L.Rev. at 240.

D.

Here the judiciary has been asked in effect to evaluate the appropriate policy regarding homosexuality in the military. The need for circumspection is as real as in the previous military cases decided by the Supreme Court. See Steffan v. Perry, 41 F.3d 677, (D.C.Cir.1994) (en banc). The elected branches have already weighed the contribution that homosexual service members might make against the disruption that homosexual acts and propensities could cause. The particular policy before us is, as we have noted, the product of extensive deliberation on the part of Congress and the President. In the end, alternatives to that policy were rejected because “the maintenance of military unit cohesion — which is the key to combat capability — ... must remain paramount over the desires of a single individual or group.” H.R.Rep. No. 200, at 2074. To the extent that our renouncement of the accepted policy would require adoption of a rejected one, the damage inflicted by judicial decree on democratic decisionmaking will have been immense.

We likewise owe respect to the military’s “estimation of the effect of homosexual conduct on military discipline.” Steffan, 41 F.3d at 686. This estimation will be made through innumerable personnel decisions informed by the military’s assessment of the unique demands of military life. Here, in accordance with military policy, the Navy instituted separation proceedings through a three-member Board of Inquiry, which heard two days of testimony and unanimously voted to honorably discharge Thomasson. The Board of Inquiry’s decision was unanimously upheld by a three-member Board of Review, and the Chief of Navy Personnel signed Thomasson’s discharge orders. While Thomasson now claims that he successfully rebutted the presumption created by his statement, the military boards found otherwise because Thomasson presented no specific evidence on whether he engaged in or had a propensity to engage in homosexual acts. “The federal court is not the appropriate forum in which to review the multitude of personnel decisions that are made daily by public agencies.” Bishop v. Wood, 426 U.S. 341, 349, 96 S.Ct. 2074, 2080, 48 L.Ed.2d 684 (1976); see also Collins v. Harker Heights, 503 U.S. 115, 129, 112 S.Ct. 1061, 1070, 117 L.Ed.2d 261 (1992) (“The Due Process Clause ‘is not a guarantee against incorrect or ill-advised personnel decisions’ ”) (quoting Bishop, 426 U.S. at 350, 96 S.Ct. at 2080). If this is true of state personnel decisions (in Bishop, a police officer fired by a city manager), it should be all the more true in military affairs, where respect for the military’s internal personnel system is an essential component of the most fundamental of constitutional pursuits, national security itself.

None of this- means, of course, that the statute before us may escape constitutional scrutiny. Rather, it is part of the process of constitutional scrutiny to recognize when the Constitution itself requires special deference. Rostker, 453 U.S. at 67, 101 S.Ct. at 2653. In the area of military affairs, the constitutional chartering of popular control is powerfully clear and purposefully redundant. Ultimately, “[t]he special status of the military has required, the Constitution has contemplated, Congress has created, and [the Supreme] Court has long recognized” that constitutional challenges to military personnel policies and decisions face heavy burdens. Chappell, 462 U.S. at 303-04, 103 S.Ct. at 2367-68. It is with those burdens in mind that we address appellant’s particular arguments.

IV.

We turn first to Thomasson’s contention that the statute, on its face and as applied, contravenes the Fifth Amendment’s guarantee of equal protection of the laws. Thomas-son claims that the stated justification for this statute — the protection of unit cohesion — is not a legitimate one because it is nothing more than a pretext for prejudice against homosexual service members. He maintains that the means chosen by Congress to promote this statutory purpose are also flawed because they treat declared homosexuals differently from heterosexuals and from homosexuals who decline to declare their sexual orientation.

We address initially Thomasson’s effort to invoke heightened judicial scrutiny of this statutory scheme. The searching review that is the hallmark of strict scrutiny is appropriate- only in limited cases, where the statute classifies along inherently suspect lines or burdens the exercise of a fundamental constitutional right. Heller v. Doe, 509 U.S. 312, 318-19, 118 S.Ct. 2637, 2642, 125 L.Ed.2d 257 (1993); Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 440, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985). Only a few classifications trigger heightened scrutiny. See, e.g., Loving v. Virginia, 388 U.S. 1, 11, 87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010 (1967) (race subject to strict scrutiny); Korematsu v. United States, 323 U.S. 214, 216, 65 S.Ct. 193, 194, 89 L.Ed. 194 (1944) (national ancestry and ethnic origin subject to strict scrutiny); Clark v. Jeter, 486 U.S. 456, 461, 108 S.Ct. 1910, 1914, 100 L.Ed.2d 465 (1988) (illegitimacy subject to intermediate scrutiny); Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 723-24, 102 S.Ct. 3331, 3335-36, 73 L.Ed.2d 1090 (1982) (gender subject to intermediate scrutiny). And because heightened scrutiny requires an exacting investigation of legislative choices, the Supreme Court has made clear that “respect for the separation of powers” should make courts reluctant to establish new suspect classes. Cleburne, 473 U.S. at 441, 105 S.Ct. at 3255; see also Lyng v. Castillo, 477 U.S. 635, 638, 106 S.Ct. 2727, 2729, 91 L.Ed.2d 527 (1986) (declining to extend strict scrutiny to “[cjlose relatives”); Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 313, 96 S.Ct. 2562, 2566, 49 L.Ed.2d 520 (1976) (per curiam) (declining to extend strict scrutiny to the elderly).. This reluctance has even more force when the intense judicial scrutiny would be applied to the “specialized society” of the military. Parker, 417 U.S. at 743, 94 S.Ct. at 2555.

The statutory classification here is not suspect, nor does it burden any fundamental right. Section 654(b) is aimed at service members who engage in or have a propensity to engage in homosexual acts. A class comprised of service members who engage in or have a propensity or intent to engage in such acts is not inherently suspect. See Steffan, 41 F.3d at 684 n. 3 (classification comprised of persons who engage in acts that the military can legitimately proscribe is not suspect). Similarly, there is no fundamental constitutional right on the part of a service member to engage in homosexual acts and there is a legitimate military interest in preventing the same. Heightened scrutiny of this statute would involve the judiciary in an inventive constitutional enterprise, and it would frustrate the elected branches of government in their efforts to deal with this question. Rational basis is accordingly the suitable standard of review.

It is settled law that rational basis review “is not a license for courts to judge the wisdom, fairness, or logic of legislative choices.” F.C.C. v. Beach Communications, Inc., 508 U.S. 307, 313, 113 S.Ct. 2096, 2101, 124 L.Ed.2d 211 (1993); see also Nordlinger v. Hahn, 505 U.S. 1, 10, 112 S.Ct. 2326, 2331, 120 L.Ed.2d 1 (1992); United States Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 175, 101 S.Ct. 453, 459, 66 L.Ed.2d 368 (1980). The question is simply-whether the legislative classification is rationally related to a legitimate governmental interest. Heller, 509 U.S. at 318-19, 113 S.Ct. at 2642. Under this standard, the Act is entitled to “a strong presumption of validity,” id., and must be sustained if “‘there is any reasonably conceivable state of facts that could provide a rational basis for the classification,’ ” id. at 319-20, 113 S.Ct. at 2642-43 (quoting Beach Communications, 508 U.S. at 307, 113 S.Ct. at 2101). To sustain the validity of its policy, the government is not required- to provide empirical evidence. “[A] legislative choice is not subject to courtroom factfinding....” Beach Communications, 508 U.S. at 315, 113 S.Ct. at 2102. Rather, “ ‘[t]he burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it.’ ” Heller, 509 U.S. at 320, 113 S.Ct. at 2643 (quoting Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364, 93 S.Ct. 1001, 1006, 35 L.Ed.2d 351 (1973)).

1.

Under these standards, the Act does not violate the equal protection guarantee. Instead, it reflects a legitimate legislative choice. Whether members of the judicial branch agree or disagree with that choice is irrelevant, for the Constitution envisions the rule of law, not the reign of judges. Congress, after months of discussion, concluded that those who engage in or have a propensity to engage in homosexual acts impair military readiness. The Act accordingly observes that the “long-standing” prohibition on homosexual conduct “continues to be necessary in the unique circumstances of military service,” 10 U.S.C. § 654(a)(13), and that “[t]he presence in the armed forces of persons who demonstrate a propensity or 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)(15).

These judgments reflect in turn Congress’ view of military life, which can be, on a round-the-clock basis, “spartan, primitive, and characterized by forced intimacy with little or no privacy.” 10 U.S.C. § 654(a)(12). Out of this forced intimacy are forged the bonds that create unit cohesion, which Congress found to be a “critical element[]” of combat readiness. 10 U.S.C. § 654(a)(7), In short, “to win wars, we create cohesive teams of warriors who will bond so tightly that they are prepared to go into battle and give their lives if necessary for the accomplishment of the mission and for the cohesion of the group_ We cannot allow anything to' happen which would disrupt that feeling of cohesion within the force.” Senate Hearings, at 708 (Statement of Chairman of the Joint Chiefs of Staff, General Colin L. Powell). Military leaders testified time and again how unit cohesion would be undermined: “[I]n my years of military service, I have experienced the fact that the introduction of an open homosexual into a small unit immediately polarizes that unit and destroys the very bonding that is so important for the unit’s survival in time of war.” S.Rep. No. 112, at 280 (Statement of General H. Norman Schwarzkopf).

It was legitimate, therefore, for Congress to conclude that sexual tensions and attractions could play havoc with a military unit’s discipline and solidarity. It was appropriate for Congress to believe that a military force should be as free as possible of sexual attachments and pressures as it prepared to do battle. Any argument that Congress was misguided in this view is one of legislative policy, not constitutional law. Courts have held that military authorities may discharge those who engage in homosexual acts. Stef-fan, 41 F.3d at 685 and n. 4; Meinhold v. United States Dept. of Defense, 34 F.3d 1469, 1477 (9th Cir.1994); Ben-Shalom v. Marsh, 881 F.2d 454, 464-65 (7th Cir.1989), cert. denied, 494 U.S. 1004, 110 S.Ct. 1296, 108 L.Ed.2d 473 (1990); Dronenburg v. Zech, 741 F.2d 1388, 1398 (D.C.Cir.1984).

Given that it is legitimate for Congress to proscribe homosexual acts, it is also legitimate for the government to seek to forestall these same dangers by trying to prevent the commission of such acts. See Steffan, 41 F.3d at 685-86; Ben-Shalom, 881 F.2d at 464. The statements provision, by discharging those with a propensity or intent to engage in homosexual acts, operates in this preventive way. As the Senate Committee described the provision: “[i]t is appropriate for the armed forces to separate the individual from military service without waiting until the individual’s propensity or intent ... ripens into specific conduct prejudicial to good order and discipline.” S.Rep. No. 112, at 294. This goal is itself a valid one. No constitutional constraint prohibits the military from preventing acts that would threaten combat capability. See Greer, 424 U.S. at 840, 96 S.Ct. at 1218; see also Steffan, 41 F.3d at 689; Ben-Shalom, 881 F.2d at 460-61, 464.

The conditions of military life, whether in barracks or aboard ship or in situations of collective peril, may throw service members into situations where sexual tensions are especially unwelcome. S.Rep. No. 112, at 277-80. “Many soldiers experience a forced association 24 hours a day. They work together; they eat together; they share living space together; they train together; they shop for groceries together; they worship together. Same-gender sexual attraction in such a ‘forced association’ environment is something that civilians rarely experience and cannot fully understand.” Senate Hearings, at 762 (Statement of General Gordon Sullivan). Section 654(b) thus accommodates the reasonable privacy concerns of heterosexual service members and reduces the sexual problems that may arise when some members of the unit have a propensity or intent to engage in homosexual acts and others do not. These same concerns for privacy and sexual tension explain the military’s policy of providing service men and women with separate living quarters. Id. at 277-78.

2.

Thomasson maintains that the statements provision of § 654(b)(2) is not rationally related to the interests of unit cohesion and protection of sexual privacy, even if those interests could be seen to be legitimate. He argues that it is not rational or permissible to presume that declared homosexuals possess a unique propensity to engage in homosexual acts.

Wé think, however, that the means chosen by Congress in the Act are rationally related to legitimate legislative ends. The presumption that declared homosexuals have a propensity or intent to engage in homosexual acts certainly has a rational factual basis. See Steffan, 41 F.3d at 686; Ben-Shalom, 881 F.2d at 464. In fact, the presumption, which Thomasson was explicitly advised of, represents perhaps the most sensible inference raised by a declaration of one’s sexual orientation. As the Senate Committee noted: “It would be irrational ... to develop military personnel policies on the basis that all gays and lesbians will remain celibate....” S.Rep. No. 112, at 284. Although Thomasson argues that some declared homosexuals have not engaged in or do not have a propensity or intent to engage in homosexual acts, “courts are compelled ... to accept a legislature’s generalizations even when there is an imperfect fit between means and ends.” Heller, 509 U.S. at 312, 113 S.Ct. at 2643. As a general matter, the legislature was certainly entitled to presume that a service member who declares that he is gay has a propensity to engage in homosexual acts. While some service members have rebutted that presumption before military boards of review, see Richenberg v. Perry, 909 F.Supp. 1303, 1313 (D.Neb.1995); Able v. United States, 880 F.Supp. 968, 976 (E.D.N.Y.1995), Thomasson did not demonstrate that he lacked a propensity to engage in homosexual acts. The general evidence offered at his discharge hearing had no bearing on this particular question.

Not only is the presumption rational, it is also permissible. Thomasson argues that it is illegitimate to separate him for a mere “propensity” to engage in acts. But in the civil context, the government can fashion general employment policies to prevent unsatisfactory conduct. See New York City Transit Auth. v. Beazer, 440 U.S. 568, 589-92, 99 S.Ct. 1355, 1367-69, 59 L.Ed.2d 587 (1979) (upholding policy barring methadone users from employment); Vance v. Bradley, 440 U.S. 93, 106, 99 S.Ct. 939, 947, 59 L.Ed.2d 171 (1979) (upholding mandatory retirement age for Foreign Service personnel); Massachusetts Bd. of Retirement, 427 U.S. at 314-17, 96 S.Ct. at 2567-69 (upholding mandatory retirement age for police officers). In fact, the-statements presumption is a reasonable means of allocating the burden of proof: It places the burden on the party with the most knowledge of the facts (here the military officer), and it frees the military from engaging in detective work. In a civil setting, moreover, “the locus of the burden of persuasion is normally not an issue of federal constitutional moment.” Lavine v. Milne, 424 U.S. 577, 585, 96 S.Ct. 1010, 1016, 47 L.Ed.2d 249 (1976) (footnote omitted).

Finally, the statute is not, as Thomasson maintains, irrational due to any purported distinction between declared and undeclared homosexuals. The policy instead rationally initiates discharge proceedings when service members, by declaring their homosexuality, thereby provide affirmative evidence to military officials of their propensity or intent to engage in homosexual acts. Thomasson apparently argues that the failure of military authorities to inquire into all service members’ propensity to engage in homosexual acts somehow renders the policy unconstitutionally imprecise. But the decision to stop, questioning new recruits about their sexual orientation reflects an allocation of military resources and a balance of competing interests, one that does not undermine the basic constitutionality of the Act. Under rational basis review, a classification does not fail because it “is not made with mathematical nicety or because in practice it results in some inequality.” Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491 (1970) (citation omitted); see Vance, 440 U.S. at 108, 99 S.Ct. at 948.

In sum, we conclude that the Act represents a legitimate legislative match of ends and means that withstands appellant’s equal protection challenge.

Y.

Thomasson also argues that the statute, both on its face and as applied, violates the First Amendment. He was, he contends, separated from the service for doing nothing more than declaring he was gay. According to Thomasson, the statements provision of 10 U.S.C. § 654 thus operates to suppress speech on the basis of its content and viewpoint. It does so, he asserts, by making a specific category of speech — a statement declaring a service member’s homosexuality— itself a basis for discharge. As a result, he contends, the provision must serve a compelling governmental interest and must be necessary to promote that interest.

Thomasson, however, misinterprets the basic purpose of the policy. The statute does not target speech declaring homosexuality; rather, it targets homosexual acts and the propensity or intent to engage in homosexual acts, and permissibly uses the speech as evidence. The use of speech as evidence in this manner does not raise a constitutional issue — “the First Amendment does not prohibit the evidentiary use of speech to establish the elements of a crime,” or, as is the case here, “to prove motive or intent.” Wisconsin v. Mitchell, 508 U.S. 476, 489, 113 S.Ct. 2194, 2201, 124 L.Ed.2d 436 (1993); see Dawson v. Delaware, 503 U.S. 159, 165, 112 S.Ct. 1093, 1097, 117 L.Ed.2d 309 (1992); Wayte, 470 U.S. at 610-14, 105 S.Ct. at 1532-34. Discriminatory words often provide the basis for challenges to discriminatory acts under Title VII, for instance, see Price Waterhouse v. Hopkins, 490 U.S. 228, 251-52, 109 S.Ct. 1775, 1791-92, 104 L.Ed.2d 268 (1989) (plurality opinion), yet employers enjoy no First Amendment right to keep those words out of court. See R.A.V. v. City of St. Paul, 505 U.S. 377, 389, 112 S.Ct. 2538, 2546, 120 L;Ed.2d 305 (1992) (observing that “sexually derogatory ‘fighting words,’ among other words, may produce a violation of Title VII’s general prohibition against sexual discrimination in employment practices”).

There is no constitutional impediment, therefore, to the use of speech as relevant evidence of facts that may furnish a permissible basis for separation from military service. No First Amendment concern would arise, for instance, from the discharge of service members for declaring that they would refuse to follow orders, or that they were addicted to controlled substances. Such remarks provide evidence of activity that the military may validly proscribe. And, as we discussed above, the military may take measures to prevent the commission of sexual activity that it deems detrimental to its mission. Based upon this rationale, courts have consistently rejected First Amendment challenges to the use of a service member’s declaration of homosexuality as a basis for separation. See Pruitt v. Cheney, 963 F.2d 1160, 1163-64 (9th Cir.1991), cert. denied, 506 U.S. 1020, 113 S.Ct. 655, 121 L.Ed.2d 581 (1992); Schowengerdt v. United States, 944 F.2d 483, 489 (9th Cir.1991), cert. denied, 503 U.S. 951, 112 S.Ct. 1514, 117 L.Ed.2d 650 (1992); Ben-Shalom, 881 F.2d at 462. A declaration of homosexuality, “like most admissions, [is] made in speech,” noted one such .court, “but that does not mean that the first amendment precludes the use of the admission as evidence of the facts admitted.” Pruitt, 963 F.2d at 1164.

Thomasson asserts, however, that this reasoning is not applicable to the new policy. He points to language in the DoD Directive stating that “sexual orientation is considered a personal and private matter” and “is not a bar to continued service.” DoD Dir. 1332.30, Enc. 2 ¶ C, at 2-1. He infers from this language that speech disclosing one’s homosexuality admits to nothing unlawful, and hence lacks any evidentiary value. According to Thomasson, the policy thus at bottom distinguishes declared homosexuals from undeclared homosexuals, penalizing only the former on the basis of their speech.

While imaginative, Thomasson’s argument fails to alter our conclusion that the new policy is in fact directed at the propensity or intent of service members to engage in homosexual acts, and uses speech declaring homosexuality as evidence thereof. First, Thomasson’s charge that such a declaration lacks any evidentiary value is patently erroneous. As we explained in rejecting Thom-asson’s equal protection challenge, a service member’s statement that he is a homosexual has substantial evidentiary value regarding whether he has a propensity to engage in homosexual acts — “the military may reasonably assume that when a member states that he is a homosexual, that member means that he either engages or is likely to engage in homosexual conduct.” Steffan, 41 F.3d at 686; see Ben-Shalom, 881 F.2d at 464.

Second, the statutory provision does not at its core distinguish between declared and undeclared homosexuals, the central premise of Thomasson’s First Amendment argument. Instead, it distinguishes service members who have a propensity or intent to engage in homosexual acts from other members, and uses a declaration of homosexuality as evidence. The statute’s operation confirms as much. Service members who state that they are homosexual can avoid separation by rebutting the presumption that they have a propensity or intent to engage in homosexual acts. 10 U.S.C. § 654(b)(2); DoD Dir. 1332.30, Enc. 2 ¶ C.l.b., at 2-2. Although Thomasson chose not to come forward with evidence in this regard, other members subject to discharge under the statements provision have successfully demonstrated that they lack a propensity or intent to engage in homosexual acts. See Richenberg, 909 F.Supp. at 1313; Able, 880 F.Supp. at 976.

Moreover, service members who have never spoken about their sexual orientation are still subject to separation if they are found to have engaged or attempted to engage in homosexual acts. 10 U.S.C.§ 654(b)(1); DoD Dir. 1332.30. Enc. 2 ¶ C.l.a., at 2-2. In a similar vein, service members who have not publicly declared their homosexuality are nevertheless subject to discharge if they have made private statements to that effect, when those statements are brought to the attention of commanding officers and the evidence regarding any such private statement is credible. See S.Rep. No. 112, at 291-92. Again, the statute’s essential concern is not with speech declaring homosexuality, as Thomas-son alleges, but is instead with the propensity or intent to engage in acts which Congress has deemed detrimental to the military’s mission.

Because the statute aims at this propensity, not at speech, it is not a viewpoint-based or content-based regulation. With respect to the former, the statute’s treatment of a declaration of homosexuality is not based on a desire to suppress any viewpoint that the statement might convey. The declaration asserts a fact, one that the military uses as evidence of a propensity or intent to engage in homosexual acts. The military, however, allows service members to express views on issues that affect homosexuals. As the district court found, members are “free to affiliate with a group that opposes the policy, to make statements criticizing the policy, to attend demonstrations in favor of homosexual rights, to read homosexual newspapers, or engage in other such expressive activities.” 895 F.Supp. at 825; see DoD Dir. 1332.30, Enc. 8, ¶ C.3.d., at 8-2; see also Assessment of the Plan: House Hearings, 35-37 (Statement of Gen. Colin Powell).

The statute likewise does not discriminate on the basis of the content of speech. Whenever a provision prohibits certain acts, it necessarily chills speech that constitutes evidence of the acts. A regulation directed at acts thus inevitably restricts a certain type of speech; this policy is no exception. But effects of this variety do not establish a content-based restriction of speech. In Wayte v. United States, for example, the Supreme Court rejected a First Amendment challenge to the government’s policy of prosecuting only those violators of draft registration laws who either reported themselves or were reported by others. 470 U.S. at 610-14, 105 S.Ct. at 1532-34. The petitioner, Wayte, alleged that the policy “inevitably created a content-based regulatory system” with a “content-based impact on non-registrants” such as himself. Id. at 611, 105 S.Ct. at 1532. But the Supreme Court treated the policy as a content-neutral regulation, observing that letters informing the government of an intent not to obey conscription requirements “provided strong, perhaps conclusive evidence of the nonregistrant’s intent not to comply — one of the elements of the offense.” Id. at 612-13, 105 S.Ct. at 1533.

A regulation is thus “content-neutral so long as it is ‘justified without reference to the content of the regulated speech,’ ” even if it has an “effect on some speakers or messages but not others.” Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 2754, 105 L.Ed.2d 661 (1989) (citations omitted) (emphasis in original). , For instance, the Supreme Court deemed to be content-neutral an ordinance that distinguished adult film theaters from other kinds of theaters, as the regulation was “aimed not at the content of the films” but at the “effects of such theaters on the surrounding community.” City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47, 106 S.Ct. 925, 929, 89 L.Ed.2d 29 (1986) (emphasis in original). The civil rights laws also penalize a specific type of speech in certain contexts — speech expressing discriminatory views — yet the Supreme Court regards Title VII “as an example of a permissible content-neutral regulation.” Mitchell, 508 U.S. at 487, 113 S.Ct. at 2200; see R.A.V., 505 U.S. at 388, 112 S.Ct. at 2546. The military policy here is justified on a content-neutral, nonspeech basis: preventing the disruptions that homosexual activity among service members might have on military readiness. That the policy may hinge the commencement of administrative proceedings on a particular type of statement does not convert it into a content-based enactment. See Wayte, 470 U.S. at 610-14, 105 S.Ct. at 1532-34.

Thomasson’s constitutional challenge faces yet another hurdle. Members of the armed services have never possessed all the First Amendment rights of the civilian population. Rather, the Supreme Court has made clear that special First Amendment considerations surround the military environment. The Supreme Court has characterized its “review of military regulations challenged on First Amendment grounds” as “far more deferential than constitutional review of similar laws or regulations designed for civilian society.” Goldman, 475 U.S. at 507, 106 S.Ct. at 1313. In Brown v. Glines, for instance, the Supreme Court upheld against a First Amendment challenge Air Force regulations that required service members to obtain permission from their base commanders before circulating petitions, noting that “ ‘[sjpeeeh that is protected in the civil population may ... undermine the effectiveness of response to command.’ ” 444 U.S. at 354, 100 S.Ct. at 599 (citations omitted). In general, the Court observed, “while members of the military services are entitled to the protections of the First Amendment, ‘the different character of the military community and of the military mission requires a different application of those protections.’” Id. (quoting Parker, 417 U.S. at 758, 94 S.Ct. at 2563).

Finally, even with respect to nonmilitary public employment, government may restrict certain types of speech to promote the effective performance of its function. See Waters v. Churchill, — U.S.-, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994); Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); Pickering v. Board of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). In such cases, courts must give “full consideration” to “the government’s interest in the effective and efficient fulfillment of its responsibilities to the public.” Connick, 461 U.S. at 150, 103 S.Ct. at 1692. Indeed, “where the government is employing someone for the very purpose of effectively achieving its goals,” restrictions on speech “may well be appropriate.” Waters, — U.S. at -, 114 S.Ct. at 1888 (plurality opinion). Congress expressly found that the statute at issue here was justified on grounds relating to performance of the military function, perhaps the most important of all governmental responsibilities. 10 U.S.C. § 654(a)(15). For the same reasons we identified in rejecting Thomas-son’s equal protection claim, the use of statements of one’s homosexuality as evidence of a propensity or intent to engage in homosexual acts is justifiable under the standards associated with content-neutral military rules, see Glines, 444 U.S. at 354-55, 100 S.Ct. at 599-600, and as an allowable means of furthering the nation’s military mission.

VI.

In a final series of catch-all claims, Thomasson alleges that the Act violates basic guarantees of due process and procedural fairness conferred by the Constitution and the Administrative Procedure Act. 5 U.S.C. §§ 551 et. seq. First, he contends that it is irrational to presume that one who states that he is a homosexual engages in or has a propensity or intent to engage in homosexual acts. Second, he maintains that the presumption is rebuttable only in theory, and is irrebuttable in practice. Finally, he alleges that his discharge was arbitrary and capricious and unsupported by substantial evidence.

We have already rejected much of the substance of these allegations in our discussion of Thomasson’s equal protection and First Amendment claims. The policy’s re-buttable presumption is entirely rational, as we have explained in ruling on Thomasson’s equal protection challenge. The proceedings complied with any requirements imposed by the Administrative Procedure Act — Thomas-son received a full and adequate hearing in which substantial evidence established that he stated that he was a homosexual and that he failed to rebut the presumption triggered thereby. See Thomasson, 895 F.Supp. at 831. In short, Thomasson’s claims that his discharge violated due process and the Administrative Procedure Act are without merit.

VII.

We have carefully reviewed Thomasson’s various claims, but we cannot accept them. To do so would not only overturn the efforts of the elected branches of government to resolve a significant question of national military policy. It would also violate much plain and settled Supreme Court precedent. In the end, the best service courts can render is to return this debate to where it all began— to the halls of democratic governance, where the many Americans affected by decisions such as these can participate directly in their resolution.

The judgment of the district court is hereby affirmed.

AFFIRMED.