Policy Luncheon, February 2, 1993

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Extent (Dublin Core)

8 Pages

File Name (Dublin Core)

lead_406_019_all

Title (Dublin Core)

Policy Luncheon, February 2, 1993

Date (Dublin Core)

1993-02-02

Date Created (Dublin Core)

1993-02-02

Congress (Dublin Core)

103rd (1993-1995)

Policy Area (Curation)

Congress

Creator (Dublin Core)

Dole, Robert J., 1923-2021

Grassley, Charles

Hatch, Orrin, 1934-2022

Record Type (Dublin Core)

agendas (administrative records)

memorandums

Rights (Dublin Core)

http://rightsstatements.org/vocab/CNE/1.0/

Language (Dublin Core)

eng

Collection Finding Aid (Dublin Core)

https://dolearchivecollections.ku.edu/index.php?p=collections/findingaid&id=26&q=

Physical Location (Dublin Core)

Collection 007, Box 406, Folder 19

Institution (Dublin Core)

Robert J. Dole Institute of Politics, University of Kansas, Lawrence, KS

Archival Collection (Dublin Core)

Robert J. Dole Republican Leadership Collection, 1985-1996

Full Text (Extract Text)

{page 1}
POLICY LUNCHEON AGENDA
February 2, 1993
FLOOR SCHEDULE
o Parental Leave Pending
Senator Kassebaum comment on bill and her amendment
Other Amendments
Craig Tax Credit Substitute
Others?
Gays in the Military
Senator Coats --
o Review Strategy
o Need support on cloture
o NIH Reauthorization likely to be next
Senator Kassebaum to comment
Opponents? (Helms)
OTHER
o Dole/Michel meeting with Republican Governors
Governors want to initially coordinate on four or five issues for united Republican front. Looking for suggestions on the four to five issues.
Possibility that task forces could be set up to include Congress, Governors, State Legislators and Mayors and Local Officials.
RNC has offered to help coordinate.

{page 2}
SCHEDULE FOR THE WEEK OF FEB. 1, 1993
TODAY, TUESDAY, FEB. 2
THE SENATE WILL RECONVENE AT 2:15 P.M., AND RESUME CONSIDERATION OF THE FAMILY LEAVE BILL. SEVERAL AMENDMENTS ARE EXPECTED TO BE OFFERED, THEREFORE, VOTES CAN BE EXPECTED TO OCCUR.
WEDNESDAY, FEB. 3
THE SENATE WILL RESUME CONSIDERATION OF THE FAMILY LEAVE BILL. VOTES WILL OCCUR.
THURSDAY, FEB. 4
UNDER A PREVIOUS ORDER, FOLLOWING THE FAMILY LEAVE BILL, THE MAJORITY LEADER MAY TURN TO THE NIH REAUTHORIZATION BILL. THEREFORE, VOTES COULD OCCUR.
FRIDAY, FEB. 5
FOLLOWING THE CONCLUSION OF SENATE BUSINESS ON FRIDAY, THE SENATE WILL BE IN RECESS UNTIL TUESDAY, FEB. 16, 1993, FOR THE PRESIDENT'S DAY RECESS.
NOTE:
FOR THE INFORMATION OF ALL SENATORS, THE STATE OF THE UNION ADDRESS WILL BE DELIVERED ON WEDNESDAY, FEB. 17, 1993, AT 9:00 P.M., IN THE HALL OF THE HOUSE OF REPRESENTATIVES.

{page 3}
REPLY TO:
:unselected: 135 HART SENATE OFFICE BUILDING
WASHINGTON, DC 20510-1501
(202) 224-3744
TTY: (202) 224-4479
:unselected: 721 FEDERAL BUILDING
210 WALNUT STREET
DES MOINES, IA 50309-2140
(515) 284-4890
:unselected: 206 FEDERAL BUILDING
101 1ST STREET SE.
CEDAR RAPIDS, IA 52401-1227
(319) 363-6832
REPLY TO:
:unselected: 103 FEDERAL COURTHOUSE BUILDING
320 6TH STREET
SIOUX CITY, IA 51101-1244
(712) 233-1860
:unselected: 210 WATERLOO BUILDING
531 COMMERCIAL STREET
WATERLOO, IA 50701-5497
(319) 232-6657
:unselected: 116 FEDERAL BUILDING
131 E. 4TH STREET
DAVENPORT, IA 52801-1513
(319) 322-4331
United States Senate
CHARLES E. GRASSLEY
WASHINGTON, DC 20510-1501
February 1, 1993
Dear Colleague:
When the Senate considers S. 5, the Family and Medical Leave Act, we will offer an amendment to authorize the use of arbitration to resolve disputes under the Act.
There can be no argument that Americans spend too much time and money in litigation. Those individuals who may become aggrieved under the Family and Medical Leave Act will be least able to afford the time or money to resolve their disputes through formal litigation. Court delays can mean 2 to 5 years, and court costs leave employees with only 43% of any awards they receive.
Our amendment is intended to eliminate some of the unnecessary costs and inefficiencies of litigation. The amendment provides that, upon filing a claim in a federal or state court, the judge must inform the parties of the availability of arbitration to resolve the dispute. Upon agreement of the parties, the Department of Labor will administer the arbitration. The arbitrator will have full authority to award all remedies under the Act.
If the parties are satisfied with the arbitrator's decision, the process may be completed in under 6 months. If one party is not satified, he, she or the company may proceed to {underlined: de novo} review in court. If the party who chose to proceed does not fare better in court, then that party will be responsible for the attorney's fees of the other party, comparable a plaintiff's liability for defendant's costs after defendant has served an offer of judgment under Federal Rule of Civil Procedure 68.
As Congress continues to create new private rights of action, we must not overburden the courts with lawsuits seeking to vindicate those rights. Arbitration, as set forth in our amendment, presents a meaningful alternative all parties in a dispute.
We hope you will support our amendment.
Sincerely,
{signature of Sen. Charles Grassley. first name is signed as Chuck.}
Charles E. Grassley
{signature of Sen. Dave Durenberger}
Dave Durenberger
Committee Assignments:
FINANCE
AGRICULTURE, NUTRITION AND FORESTRY
JUDICIARY
OFFICE OF TECHNOLOGY ASSESSMENT
BUDGET
SPECIAL COMMITTEE ON AGING

{page 4}
MEMORANDUM
TO: Republican Senators
FROM: Orrin G. Hatch
RE: Constitutionality of Military Rules Regarding Homosexuality
DATE: February 2, 1993
Attached is a memorandum that assesses possible constitutional challenges to a Congressional codification of current Department of Defense policy regarding homosexuality.

{page 5}
This memorandum addresses possible constitutional challenges to a Congressional codification of current Department of Defense policy regarding homosexuality. For the reasons stated below, any such challenges would be meritless under existing constitutional doctrine.
Background
Current Department of Defense policy provides:
"Homosexuality is incompatible with military service. The presence in the military environment of persons who engage in homosexual conduct or who, by their statements, demonstrate a propensity to engage in homosexual conduct, seriously impairs the accomplishment of the military mission. The presence of such members adversely affects the ability of the Military Services to maintain discipline, good order, and morale; to foster mutual trust and confidence among servicemembers; to ensure the integrity of the system of rank and command; to facilitate assignment and worldwide deployment of servicemembers who frequently must live and work under close conditions affording minimal privacy; to recruit and retain members of the Military Services; to maintain the public acceptability of military service; and to prevent breaches of security."1
It further provides that a member of the military shall be separated from military service if one or more of the following findings is made:
(1) the "member has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts" (unless further specified mitigating findings are made);
(2) the "member has stated that he or she is a homosexual or bisexual" (unless there is a further finding that the statement is false); or
(3) the "member has married or attempted to marry a person known to be of the same biological sex" (unless there are further findings that the member is not homosexual or bisexual and that the purpose of the marriage was the avoidance or termination of military service).2
Analysis
Article 1, section 8, clause 14 of the Constitution
{footnote: 1 U.S. Department of Defense, Office of the Assistant Secretary of Defense, Directive No. 1332.14, Enlisted Administrative Separations (Jan. 28, 1982), quoted in CRS Report for Congress, Homosexuals and U.S. Military Personnel Policy 47 (No. 93-52 F, Jan. 14, 1993) ("CRS Report").}
{footnote: 2 Id., at 48.}

{page 6}
2
specifically delegates to Congress the authority to "make Rules for the Government and Regulation of the land and naval Forces." This grant of specific authority to Congress contrasts sharply with the Constitution's general designation of the President as "Commander in Chief" of the armed forces in Article II, section 2. It therefore appears clear that it is Congress, not the President, that has the ultimate constitutional power to promulgate military rules regarding homosexuality.
Were Congress to codify in federal statutory law the existing Department of Defense rules regarding homosexuality, one could envision the following constitutional attacks, none of which has any merit under existing constitutional doctrine3:
1. Equal protection. A homosexual might claim that the rules violate his right to "the equal protection of the laws" under the Fourteenth Amendment (which has been deemed applicable to the federal government via the Due Process clause of the Fifth Amendment, see Bolling v. Sharpe, 347 U.S. 497 (1954)).
Under the Supreme Court's settled Equal Protection jurisprudence, "unless a classification warrants some form of heightened review because it jeopardizes exercise of a fundamental right or categorizes on the basis of an inherently suspect characteristic, the Equal Protection Clause requires only that the classification rationally further a legitimate state interest." Nordlinger v. Hahn, 112 S. Ct. 2326, 2331-2332 (1992) (citing cases). The Supreme Court has specifically rejected the claim that the Constitution somehow confers "a fundamental right upon homosexuals to engage in sodomy." Bowers v. Hardwick, 478 U.S. 186, 190 (1986). It likewise is obvious that no one has a "fundamental right" to be in the military. See Goldman v. Weinberger, 475 U.S. 503 (1986). As for "suspect" characteristics: the Court's ruling in Bowers essentially forecloses the contention that a classification based on homosexual conduct is "suspect," and the Court has never held (or even remotely suggested) that a classification based on homosexual status is "suspect." It follows that a federal statutory ban on homosexuals in the military should be subject only to "rational basis" judicial scrutiny under the Equal Protection clause, not to heightened scrutiny.
Under "rational basis" scrutiny, "the Equal Protection Clause is satisfied so long as there is a plausible policy reason for the classification, the legislative facts on which the classification is apparently based may have been considered to be
{footnote: 3 The lower federal courts that have addressed challenges to the Department of Defense's current rules have overwhelmingly rejected the challenges. See CRS Report, at 56-61; but cf. infra note 4.}

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3
true by the governmental decisionmaker, and the relationship of the classification to its goal is not so attenuated as to render the distinction arbitrary or irrational." Nordlinger, 112 S. Ct., at 2332 (citations omitted). Otherwise stated:
"Where . . . there are plausible reasons for Congress' action, our inquiry is at an end. It is, of course, 'constitutionally irrelevant whether this reasoning in fact underlay the decision,' because this Court has never insisted that a legislative body articulate its reasons for enacting a statute."
U.S. R.R. Retirement Board v. Fritz, 449 U.S. 166, 179 (1980) (citing Flemming v. Nestor, 363 U.S. 603, 612 (1960)).
Moreover, "judicial deference to . . . 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 v. Goldberg, 453 U.S. 57, 70 (1981); cf. Goldman, 475 U.S., at 507 ("Our review of military regulations challenged on First Amendment grounds is far more deferential than constitutional review of similar laws or regulations designed for civilian society."). In short, courts should be extremely deferential in conducting "rational basis" review of military rules. 4
A statutory ban on gays in the military should easily satisfy this deferential review. Bowers -- which, of course, was not even in the super-deferential context of the military -- establishes that "majority sentiments about the morality of homosexuality" provide an adequate rational basis for the ban. 478 U.S., at 196. Each of the bases (quoted above) stated in the current Department of Defense policy should also be separately sufficient to warrant the ban. In addition, there are many other reasons (whether or not actually relied on by Congress, see Fritz, 449 U.S., at 179) that could be posited in justification of the ban.
N.B .: While actual articulation of the reasoning supporting a Congressional enactment is unnecessary to sustain that enactment under a proper application of "rational basis" inquiry,
{footnote: 4 The January 28, 1993 order and opinion (by a Carter appointee) permanently enjoining the Department of Defense "from discharging or denying enlistment to any person based on sexual orientation in the absence of sexual conduct which interferes with the military mission of the armed forces" did not articulate, much less apply, this extremely deferential standard of review. See Meinhold v. Department of Defense, No. 92-6044 (C.D. Cal.).}

{page 8}
4
an articulation by Senators of the many rational bases underlying the enactment certainly helps to ensure that reviewing courts take these bases into account in determining the constitutionality of the enactment.
2. Due process. A homosexual might likewise claim that the ban violates purported substantive "due process" rights under the Fifth Amendment. Whether this claim is labeled one of "liberty" or of "privacy," the proper analysis under existing constitutional doctrine is essentially identical to that of the Equal Protection claim above: Because the ban does not implicate any "fundamental right," it is subject (at most) to deferential "rational basis" review, Bowers, 478 U.S., at 196, which is all the more deferential in the military context and which it easily survives.
3. Free speech. A homosexual might also claim that the portion of the rule that penalizes him for his declaration of homosexuality punishes speech in violation of the First Amendment. But the rule does not punish speech qua speech; rather, the speech provides sufficient evidence of the fact of homosexuality, and is no more protected under the First Amendment than any other admission. Even if the First Amendment were somehow at issue, Goldman establishes that the claim would fail:
"Our review of military regulations challenged on First Amendment grounds is far more deferential than constitutional review of similar laws or regulations designed for civilian society. The military need not encourage debate or tolerate protest to the extent that such tolerance is required of the civilian state by the First Amendment; to accomplish its mission the military must foster instinctive obedience, unity, commitment, and esprit de corps."
475 U.S., at 507.
In sum, the constitutional objections to a Congressional codification of the Department of Defense's current policy regarding homosexuals are devoid of serious merit under current constitutional doctrine.

Policy Luncheon, February 2, 1993

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