A three-judge panel of the Ninth Circuit decided 2 to 1 in his favor in "Watkins v. United States Army". The court held that homosexuals constitute a "suspect class" and that the court must apply "strict scrutiny" to determine whether there is a compelling state interest that justifies a statute or regulation that distinguishes homosexuals as a category. Using that analysis, the panel held that the exclusion of homosexuals from military service violated the equal protection clause of the Fourteenth Amendment. It specifically addressed only exclusion based on someone's sexual orientation (homosexuality as status), not exclusion based on behaviors associated with one's sexual orientation (homosexuality as conduct). The "New York Times" accepted the distinction and praised the decision: "Gay people should not be denied the opportunity for military service solely on the basis of their sexual preference, as distinguished from their behavior... A military regulation that so trashes careers, talent and tolerance deserves no respect from Congress or the courts." In June 1988, the Ninth Circuit agreed to rehear the case en banc. The eleven judge panel found that the Army was estopped from using Watkins' statements and behavior against him but did not address the constitutional issues. It was the first time a U.S. appellate court ruled against the U.S. military's ban on service by gays and lesbians. The Bush administration sought Supreme Court review of that decision without success. Watkins initially planned to reenlist, but settled instead for a retroactive promotion to sergeant first class, $135,000 in retroactive pay, full retirement benefits, and an honorable discharge.