Marine regulations limit the freedom of personnel assigned to units in the Western Pacific to have their dependents visit them. The District Court rejected appellants' constitutional challenges and upheld these restrictions by granting the government's motion for summary judgment. The question before us is whether the record permits summary judgment.

* Marine Corps Orders provide that personnel assigned to Fleet Units in Japan, Okinawa, the Philippines, and Hawaii are not authorized to have dependents live with them.1 Dependents may visit at their own expense, but not for more than sixty days during each tour of duty.2

On July 18, 1971, appellant Patrick Hess was assigned to a one year tour with the Marine Fleet Unit at Iwakuni, Japan. His wife, appellant Linda Hess, joined him on October 26, 1971. She had a valid United States passport and a six month travel visa issued by the government of Japan. Linda Hess did not leave after sixty days and, on January 17, 1972, Patrick was transferred to the Marine base in Okinawa. Appellants allege that this was a punitive transfer imposed because the sixty day limitation had been exceeded.

In the proceedings below appellants sought to enjoin the enforcement of the sixty day rule and to have it declared violative of their constitutional rights. They served interrogatories on the government seeking to discover the rationale behind the rule. The government moved for a protective order so that it would not have to answer the interrogatories while its motion for summary judgment was pending. Although the Court never ruled on the government's protective order and the interrogatories were never answered, the Court nonetheless granted the government's motion for summary judgment.3

Appellants allege, inter alia, that the Marine Corps Orders violate their right to marital privacy by keeping them apart.4 The government replies that a compelling state interest-keeping Marine Fleet Units "combat ready"-outweighs the rights asserted. Fleet Units are highly mobile and are expected to respond immediately when the national interest requires it. The Marines, it is said, will be less efficient in combat if they are concerned about the uncertain status of dependents suddenly left behind in a foreign land. Thus the regulation does not apply to dependents who are nationals of the country where the Marine is stationed or who were employed in that country when they became dependents.5 It would appear that a Marine is regarded as less anxious about the ability of such dependents to care for themselves since they are in familiar surroundings.

The resolution of this case would require a careful weighing of military needs and constitutional rights. There is a strong national interest in having Marine units capable of quick and efficient action. Moreover the judiciary is "scrupulous not to interfere" with legitimate military matters.6 On the other hand, the right of marital privacy is a "fundamental" one.7 Regulations limiting it must be narrowly drawn to express only the vital interests at stake.8 And privacy is but one of the constitutional rights at issue here.9

The present record is inadequate for purposes of summary judgment. The District Court granted summary judgment because it found that "the prolonged presence of any Fleet Marine Force dependent . . . impair[s] the functioning of the Marines involved."10 This finding, however, was based solely on the statements of Lieutenant Colonel Murray, a Marine Corps lawyer.11 Appellants introduced an affidavit from another Marine Corps lawyer asserting that the sixty day limitation hampered military efficiency.12 In addition, appellants' unanswered interrogatories raised pertinent questions about the government's position. They asked, for example, whether other services have combat ready troops in the Western Pacific; whether those troops have the sixty day rule; and, if not, why the Marines are treated differently.13

Summary judgment may be granted only if there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law.14 Appellants have raised a genuine issue of fact as to whether the sixty day rule furthers combat readiness. This issue is material to their constitutional claims, since if the rule is unrelated to preparedness it may not serve any vital state interest. Thus summary judgment was inappropriate. Here, as in A Quaker Action Group v. Morton, the issues are "too difficult, too delicate, too dependent on careful assessment and weighing of constitutional rights, to rest conclusively on the untested declaration of an executive official."15

Neither the Government's claim of military necessity nor appellant's claim of constitutional rights may lightly be outweighed. As we have already indicated, the record does not permit a resolution of these conflicting claims by summary judgment. We therefore reverse and remand for trial.

So ordered.