A broad reading of Lawrence & partial victory against DADT

The Ninth Circuit today reinstated discharged Air Force Major Margaret Witt's challenge to the Don't Ask, Don't Tell policy. Federal courts, including this one, had previously -- and uniformly -- dismissed challenges to DADT, employing a minimal (rational basis) level of review under both the Due Process and Equal Protection Clauses.

Today's ruling (read it as a PDF here) changes that. For the first time, a federal circuit court holds that Lawrence v. Texas requires heightened (but not strict) scrutiny under the Due Process Clause for laws and policies like DADT that punish private, consensual, adult sexual conduct. The Court rejected Witt's Equal Protection argument, however, saying it's prior decisions were unchanged on this point. One of three judges on the panel disagreed, saying Lawrence demands strict scrutiny under both Clauses. The case will continue on remand.

Because this decision is quite interesting and significant I'm quoting the juicy parts at length:

Major Witt argues that Lawrence recognized a fundamental right to engage in private, consensual, homosexual conduct and therefore requires us to subject DADT to heightened scrutiny. The Air Force argues that Lawrence applied only rational basis review, and that the Ninth Circuit’s decisions in Holmes, Philips, and Beller remain binding law on DADT’s validity. Because Lawrence is, perhaps intentionally so, silent as to the level of scrutiny that it applied, both parties draw upon language from Lawrence that supports their views.
...
Only one of the three courts of appeals that the Air Force claims to have “decided this question” actually has done so. In Lofton v. Secretary of the Department of Children & Family Services, 358 F.3d 804, 817 (11th Cir. 2004), the Eleventh Circuit upheld a law that forbade homosexuals from adopting children, explicitly holding that Lawrence did not apply strict scrutiny. Otherwise, our sister circuits are silent.
...
The parties urge us to pick through Lawrence with a finetoothed comb and to give credence tthe particular turns of phrase used by the Supreme Court that best support their claims. But given the studied limits of the verbal analysis in Lawrence, this approach is not conclusive. Nor does a review of our circuit precedent answer the question; as the Court of Appeals for the Armed Forces stated in Marcum, 68 M.J. at 204, “[a]lthough particular sentences within the Supreme
Court’s opinion may be culled in support of the Government’s argument, other sentences may be extracted to support Appellant’s argument.” In these ambiguous circumstances, we analyze
Lawrence by considering what the Court actually did, rather than by dissecting isolated pieces of text. In so doing, we conclude that the Supreme Court applied a heightened level of scrutiny in Lawrence.
We cannot reconcile what the Supreme Court did in Lawrence with the minimal protections afforded by traditional rational basis review....
The criticism that the Court in Bowers had misapprehended “the extent of the liberty at stake” does not sound in rational basis review....
Second, the cases on which the Supreme Court explicitly based its decision in Lawrence are based on heightened scrutiny....
We therefore conclude that Lawrence applied something more than traditional rational basis review....However, we hesitate to apply strict scrutiny when the Supreme Court did not discuss narrow tailoring or a compelling state interest in Lawrence, and we do not address the issue here.
...
We hold that when the government attempts to intrude upon the personal and private lives of homosexuals, in a manner that implicates the rights identified in Lawrence, the government must advance an important governmental interest, the intrusion must significantly further that interest, and the intrusion must be necessary to further that interest. In other words, for the third factor, a less intrusive means must be unlikely to achieve substantially the government’s interest.
...
However, it is unclear on the record before us whether DADT, as applied to Major Witt, satisfies the second and third factors....Remand therefore is required for the district court to develop the record on Major Witt’s substantive due process claim. Only then can DADT be measured against the appropriate constitutional standard.

This is a major development. Before last week's California Supreme Court decision in In Re Marriage Cases, no federal appeals court or state high court had applied heightened scrutiny to discrimination against queer people or (unless you count Lawrence itself) to regulations of private adult sexual conduct.

Unsurprisingly given the differing subject matter and surrounding politics, neither the majority nor concurring opinions in Witt cites Marriage Cases. But the two decisions together could be read as signalling a big step forward in constitutional analysis of both queer rights and sexual privacy. And in light of the heightened standard the Ninth Circuit has declared, it's hard to see how the Government will be able to justify DADT in the court below.

Marriage ban unconstitution: California Supreme Court

The Court's own website is jammed with traffic right now, so why don't you try reading the decision here instead. The opinions are, unsurprisingly, fairly lengthy.

As expected, it's 4-3, with a majority opinion by Chief Justice George, a concurring opinion by Justice Kennard, and dissents by Justices Baxter and Corrigan. Corrigan noted that she believed same-sex couples ought to be able to marry.

Primary season is effectively over, and the general election campaign gearing up. What, if any effect will this decision have - particularly in light of McCain's recent red-meat speech on the judiciary? Who knows.

As the Court notes, this case is unusual because unlike other state courts, the California justices had to decide the marriage issue in the context of a fully comprehensive domestic partnership law. Both sides of the decision believe that law underscores, if not undergirds, their conclusions. (If California had no such law, or only a much more modest one, the majority here might well have been bigger, with a split on the remedy as in New Jersey.)

On the UK's new pornography law

The UK has now passed a law to criminalize the possession of "violent" and "extreme" pornography. A mother who blamed her daughter's murder on pornography involving strangulation campaigned for the law. You can read the language of the law here, you may also find of interest this website, of a group opposing the law. The most pertinent language is this: covered material includes material that "explicitly and realistically" depicts "an which which threatens a person's life," or "an act which results, or is likely to result, in serious injury to a person's anus, breasts or genitals."

It strikes me that the terms "threatens a person's life," "likely to result," and "serious injury" make it possible to interpret this law as criminalizing large chunks of BDSM pornography, i.e., material that is produced by and for consenting adults and that (though it may technically fit the above definition) when understood in context, is not intended to be viewed as depicting and does not otherwise promote actual violence. Examples: erotic knifeplay, simulated choking, and the ever-popular CBT (not cognitive-behavioral therapy - look it up).

Particularly remarkable is that, unlike U.S. obscenity laws, but like child pornography laws, the law criminalizes not only production and distribution but possession. Having forbidden images on your hard drive could land you in jail.

This raises in my mind the applicability of the UK Human Rights Act and through it the European Convention on Human Rights. These documents have not been consistently and broadly applied in the area of sexual privacy - witness the European Court's upholding of the Spanner convictions.

Interestingly and disturbingly, the UK Government cited the Spanner case in its justification of the law:

The material to be covered by this new offence is at the most extreme end of the spectrum of pornographic material which is likely to be thought abhorrent by most people. It is not possible at law to give consent to the type of activity covered by the offence, so it is therefore likely that a criminal offence is being committed where the activity which appears to be taking place is actually taking place. The House of Lords upheld convictions for offences of causing actual and grievous bodily harm in the case of Brown [1994] 1 AC 212 which involved a group of sado-masochists who had engaged in consensual torture. The threshold that the clauses have set is very high, so while those taking part might argue that they had consented to it, such consent is not valid at law.

Once one concludes - as the House of Lords did a decade ago, that BDSM is itself a crime, criminalizing its depiction, and even possession of such depictions, becomes easy. The justification, vis a vis the right to freedom of speech, is identical to that regarding child pornography: the forbidden material is the record of a violent crime, and its dissemination furthers the harm to the victim of that crime, and feeds a market for further crimes. This is the rationale on which the US Supreme Court has upheld the child pornography laws, and without knowing the corresponding case law in the UK or the European Court of Human Rights, I would expect a similar result here when the law is, inevitably, challenged in court.

Note, however, that the threshold for application of the new UK law is a) that a "reasonable person would think" the material depicted an actual person, and b) the depiction of violence is "realistic." Thus, there need not be actual violence to an actual person. Here the similarity to US child pornography laws ends. Our Supreme Court has clearly said that "virtual child pornography" is protected by the First Amendment - criminal laws can only cover the depiction of actual sexual activity with actual minors. This ruling has been criticized on the ground that, given the "beyond a reasonable doubt" standard and the fast-evolving state of imaging technology, it simply makes prosecutions too hard to procure. And this was undoubtedly in the minds of the Parliament here. In any event, this provides an significant distinction between both the child pornography and Spanner cases and this new law.

It will be very interesting to see what becomes of this law. One thing, however, is clear: it will not prevent a single violent crime.

"Or similar union": Mich. Court voids partner benefits

Last year, Ohio's Supreme Court managed to rescue the state's domestic violence law from the ambit of a broadly-written anti-marriage constitutional amendment. That amendment barred state recognition of " a legal status ...that intends to approximate the design, qualities, significance or effect of marriage." The court held that coverage under the domestic violence law did not constitute a "legal status" for unmarried couples.

The Ohio case was the leading case to watch to see just how far these anti-marriage amendments would go. Proponents and opponents had argued vociferously over their effects when they were on the ballot, sometimes switching their positions once the amendments were enacted and came before a court. After the Ohio decision, many breathed a sigh of relief.

Until now. Michigan's Supreme Court held yesterday that its state schools may not offer domestic partners the same employee benefits available to married couples. The Michigan court specifically distinguished the Ohio decision because it was based on different language. Michigan's amendment reads: "the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose." Thus, according to the court,

The pertinent question is not whether public employers are recognizing a domestic partnership as a marriage or whether they have declared a domestic partnership to be a marriage or something similar to marriage; rather, it is whether the public employers are recognizing a domestic partnership as a union similar to a marriage.

It answered that question as follows:

Plaintiffs and the dissent argue that because the public employers here do not bestow upon a domestic partnership all the legal rights and responsibilities associated with marriage, the partnership is not similar to a marriage. Again, we respectfully disagree. “Similar” means “having a likeness or resemblance, [especially] in a general way; having qualities in common[.]” Random House Webster’s College Dictionary (1991); see also White v City of Ann Arbor, 406 Mich 554, 572-574; 281 NW2d 283 (1979). A union does not have to possess all the same legal rights and responsibilities that result from a marriage in order to constitute a union “similar” to that of marriage. If the marriage amendment were construed to prohibit only the recognition of a union that possesses legal rights and responsibilities identical to those that result from a marriage, the language “or similar union” would be rendered meaningless, and an interpretation that renders language meaningless must be avoided.

With this broad a meaning for "similar," the domestic partner benefits were doomed:

Because marriages and domestic partnerships are the only relationships in Michigan defined in terms of both gender and lack of a close blood connection, and, thus, have these core “qualities in common,” we conclude that domestic partnerships are unions similar to marriage.
... When a public employer attaches legal consequence to a relationship, that employer is clearly “recognizing” that relationship. ... When public employers provide domestic partners health-insurance benefits on the basis of the domestic partnership they are without a doubt recognizing the partnership.

A dissenting judge called this "a perversion of the amendment's language." The dissenter also emphasized pre-election statements by the campaign for the amendment, which essentially assured voters that things like this wouldn't happen. The court's majority said this "extrinsic evidence" couldn't be used to contradict the "unambiguous language of the constitution."

There's much more to the decision, which I haven't fully digested. The majority opinion is remarkably cold-blooded; I am not surprised by its analysis or result, but I am surprised that they didn't utter a word about the obvious unfairness of the result.

In any event, this should reinvigorate opposition to anti-marriage amendments, particularly those that include sweeping language targeted at things other than fully civil marriage recognition.

Sodomy and Per Se Defamation

Arthur Leonard has an interesting post about the effect of Lawrence v. Texas on defamation law. The connection may not be immediately clear, but think about - saying someone is gay has long been and still is the basis for many a defamation suit. The most famous, of course, was the ill-fated libel suit Oscar Wilde brought against his lover's father; the trial proved that Wilde, of course, was homosexual, which shortly led to Wilde's arrest. But such suits continue today, often against the tabloid press.

Until recently, accusations of homosexuality was classed with the kinds of defamation that were so shocking, so reputation-wrecking, that it was unnecessary for the plaintiff to prove damages; this was "per se defamation." While this is nice for plaintiffs, one can easily see how this assumption of scandal and loss of reputation is in tension with the principle of Lawrence v. Texas, that gay people should not be treated as second-class citizens. If the law simply assumes that gays are such pariahs that to be identified as a member of that group is per se injurious, the law is reinforcing homophobia.

Leonard notes that a post-Lawrence, at least some courts have recognized this and rejected the per se categorization. You can still sue for defamation if someone spreads rumors that you're gay, but you have to prove it was harmful to you. In a recent decision, a federal district judge said the per se rule had "the same effect" of demeaning gay people that sodomy laws did. Leonard observes: "this little adjustment in the common law marks yet another interstitial move as the law adjusts to the idea of gay people as equal citizen."

Roundup of this week's legal developments

-- The Kansas Supreme Court today set limits on grand jury subpoenas in an investigation of a Kansas abortion provider, but refused to block the subpoenas altogether or strike down the law under which the grand jury convened. The Associated Press reports:

The Supreme Court declined to quash or modify the subpoenas or strike down the law. But it sent the case back to district court and set guidelines for the presiding judge to use to determine whether the subpoenas should be enforced.
“The court should satisfy itself that the grand jury has not engaged in an arbitrary fishing expedition and that the targets were not selected and subpoenas issued out of malice or with intent to harass,” Justice Lee Johnson wrote in the high court’s opinion. “If so, the court should quash the subpoenas.”
The Supreme Court said if the district court determines that both of those conditions are satisfied, it must consider patients’ privacy. It must allow Tiller’s clinic to remove all patient identifying information from the copies it provides to the grand jury, the high court said.
“The district court must consider the competing interests of the state and the patients,” Johnson wrote for the Supreme Court.

Notably, the court said that for all records subpoenaed, an independent attorney and physician must ensure the redaction of all information not relevant to the investigation, regardless of whether the information is considered "patient-identifying" information. Bottom line, though: the case is remanded, the abuse of the state justice system to harass health care providers continues.

-- Workplace Law Profs Blog notes an interesting case in which a University of Toledo employee, charged with overseeing the school's equal employment policies, wrote an editorial in a local paper -- which argued vigorously that gay and lesbian people shouldn't be protected from discrimination. Normally, public employees' off-the-job political speech is protected, but there's a very interesting question here of whether a statement like this so undermines the employer, and the particular employee's job responsibilities, as to cross the line into unprotected speech.

-- A Pennsylvania state appellate court held (pdf; see also report here) - over one judge's dissent - that a city could shut down a restaurant that provided an area for patrons to have sex, because sex is not an "accessory use" permitted by its restaurant permit. The dissenting judge compared patron sexual activity to karaoke, cabaret, and off-track betting: not typical for restaurants, but consistent with the types of entertainment that some restaurants are known to provide. This may seem like a weird case, but this kind of business model sounds like a winner for businesses catering to the swing community.