BenShalom v. Marsh

703 F. Supp. 1372
Brief Filed: 4/89
Court: United States Court of Appeals for the Seventh Circuit
Year of Decision: 1989

Read the full-text amicus brief (PDF, 645KB)

Index Topic

Sexual Orientation (military)


Whether the U.S. Army may constitutionally deny reenlistment to any serviceperson who declares him/herself to have a homosexual orientation


Sergeant BenShalom was denied reenlistment in the Army solely based upon her sexual orientation. The District Court held that this denial violated the Equal Protection Clause of the Fourteenth Amendment. The Army appealed.

APA's Position

APA submitted a shortened version of the brief it submitted in a similar Ninth Circuit case, Watkins v. United States Army, 875 F.2d 699 (1989). The brief argued that refusing reenlistment on grounds of sexual orientation was unconstitutional because: (1) sexual orientation does not affect a person's ability to contribute to society; (2) discrimination against gay people is substantially based on erroneous stereotypes; (3) sexual orientation is highly resistant to change, and it is therefore abhorrent for government to penalize homosexual status; (4) the Army regulations stigmatize homosexuals and encourage unhealthy concealment of homosexual orientation; and (5) the regulations are based upon stereotypes unsupported by scientific research.


The Seventh Circuit reversed the District Court and held that: (1) the regulations making homosexuality a nonwaivable disqualification to service did not violate the First Amendment rights of the plaintiff; (2) homosexuals were not a suspect class and, thus, a deferential rational basis standard of review applied; and (3) the regulation did not violate the equal protection rights of the sergeant.