Wednesday, May 21, 2008

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.

2 comments:

Charles Thomas said...

The level of scrutiny is everything in an equal protection case, as the California court made clear last week. Because CA treats sexual orientation as a suspect classification under its state constitution, it applied strict scrutiny to the marriage cases, and found that the marriage/domestic partnership dichotomy could not hold up. My state, Pennsylvania, would apply simply rational basis (of course, PA is not generally queer friendly).

It is not surprising that the real fight going forward will probably be over what level of scrutiny to apply. As our understanding of human sexuality progresses, it seems more and more obvious that strict scrutiny is the right level.

Harper Jean Tobin said...

I think it's generally the case that the level of scrutiny is everything, or nearly everything. But I'm not quite as sure about that in this case, given the deference usually given to the military. A fuzzy "deference" can make the difference even under strict scrutiny - see Grutter v. Bollinger (2003).