FOR EDUCATIONAL USE ONLY
881 F.2d 454, 51 Empl. Prac. Dec. P 39,246, 58 USLW 2118
(Cite as: 881 F.2d 454)
United States Court of Appeals,
Miriam BEN-SHALOM, Plaintiff-Appellee,
John O. MARSH, Jr., Secretary of the Army, Vance
Coleman, Commanding Officer, H.Q. 84th Division,
U.S. Army Reserve, and John Allen, Lt. Colonel,
Commanding Officer, 5091st U.S. Army Reception
Nos. 88-2771, 89-1213.
Argued May 18, 1989.
Decided Aug. 7, 1989.
As Amended on Denial of Rehearing and Rehearing
In Banc Oct. 11, 1989.
Before WOOD, Jr., EASTERBROOK, and KANNE,
HARLINGTON WOOD, Jr., Circuit Judge.
This case concerns an avowed homosexual, a lesbian,
who has persistently sought and now secured, with
district court assistance, reenlistment in the Army.
The Army under its regulations seeks to void that
reenlistment. As might be expected the issue is con-
troversial, as evidenced by the number of amici curi-
ae all supporting plaintiff Miriam Ben-Shalom.
The district court has entered a permanent injunction
requiring the Army to continue the reenlistment of
plaintiff Ben-Shalom without regard to her sexual
Plaintiff is presently a sergeant in the United States
Army Reserve performing duty with the 5091st U.S.
Army Reception Battalion in Milwaukee, Wisconsin.
There is no complaint about the actual performance
of her military duties.
In 1976 plaintiff was discharged from the reserves
pursuant to then-existing Army Regulation (AR) 135-
178, para. 7-5(b)(6), which provided for the dis-
charge of any soldier who “evidenced homosexual
tendencies, desire or interest, but is without overt ho-
mosexual acts.” Plaintiff promptly filed suit claiming
that her discharge under that regulation violated her
constitutional rights to free speech and privacy. Judge
Evans viewed those regulations as overbroad under
the First Amendment, and also as violative of
plaintiff's constitutional right to privacy that, in Judge
Evans' opinion, protected Ben-Shalom's sexual pref-
erences. There was found no proof of nexus between
sexual preference and military capabilities. Plaintiff
was ordered reinstated by Judge Evans for the re-
maining eleven months of her enlistment.
Shalom v. Secretary of Army,
489 F.Supp. 964
The Army did not appeal and the district court rein-
statement order became final. After the Army failed
to comply with the reinstatement order plaintiff
sought to have the Army held in contempt. The dis-
trict court, however, declined to enforce the reinstate-
ment order, and instead ordered compensation for
plaintiff's uncompleted enlistment term. That re-
sponse did not satisfy plaintiff. On appeal, this court
held in an unpublished order that the district court
improperly used the civil contempt proceeding to re-
open the legal or factual basis of the original rein-
statement order. The district court's judgment was
therefore vacated and the case remanded. This court