Ben-Shalom v. Mars

Ben-Shalom v. Mars - FOR EDUCATIONAL USE ONLY 881 F.2d 454,...

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FOR EDUCATIONAL USE ONLY Page 1 881 F.2d 454, 51 Empl. Prac. Dec. P 39,246, 58 USLW 2118 (Cite as: 881 F.2d 454) United States Court of Appeals, Seventh Circuit. Miriam BEN-SHALOM, Plaintiff-Appellee, v. 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 Battalion, Defendants-Appellants. 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, Circuit Judges. 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. FN1 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. FN2 The district court has entered a permanent injunction requiring the Army to continue the reenlistment of plaintiff Ben-Shalom without regard to her sexual orientation. Background 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. Ben- Shalom v. Secretary of Army, 489 F.Supp. 964 (E.D.Wis.1980) ( Ben-Shalom I ). 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
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This note was uploaded on 04/18/2011 for the course LAW 0856 taught by Professor Hodge during the Fall '10 term at Temple.

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Ben-Shalom v. Mars - FOR EDUCATIONAL USE ONLY 881 F.2d 454,...

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