It was only a few weeks ago that the Ninth Circuit Court of Appeals permitted a challenge to "Don't Ask, Don't Tell" to go forward, saying the lower court applied a too-lenient standard in dismissing the case.
But yesterday, the First Circuit rejected a similar challenge (PDF), saying the policy does not violate Due Process, Equal Protection or the First Amendment. This apparent circuit split provides more reason to think the Supreme Court will eventually consider the matter -- unless the political branches change the policy first.
As Paul Segunda at Workplace Prof Blog notes, there is an interesting similarity between these opposing decisions. The First Circuit opinion in Cook v. Gates states: "We agree with much of the reasoning set forth in [Witt v. Secretary of the Air Force] but also part ways with the 9th Circuit's approach in some significant respects." The panels' most significant agreement was "Lawrence [v. Texas] did indeed recognize a protected liberty interest for adults to engage in private, consensual sexual intimacy and applied a balancing of constitutional interests that defies either the strict scrutiny or rational basis label."
But unlike the CA9 panel, the court saw no need to send the case back to the district court to apply this heightened standard; instead, it simply held that DADT meets this standard. There are, I think, two reasons for this:
First, the CA9's version of "intermediate" Due Process review is tougher than the CA1's version. Whereas the the CA9's standard require some evidence that the government's rationale is actually served in the case at hand, the CA1's standard requires only that the government's "animating concern" be "brought into play." Accordingly, DADT is okay under the CA1 standard because all those to whom it applies could end up deployed to a combat area, where concerns about morale and cohesion are relevant.
Second, the CA1 gave great deference to the government's judgments about military necessity -- deference that won't apply, of course, in other sexual-privacy cases.
Cook also involves a claim not presented in Witt: a First Amendment claim. The court rejected this claim as well, but Judge Saris dissented on this point. Saris reasoned this way: Even for "content-neutral" regulation of speech, the test includes whether the regulation actually furthers the government's goals. DADT is clearly a regulation of speech - statements about one's sexual orientation or relationships are treated as an essentially irrebuttable presumption that one is unfit to serve. And under any standard that asks whether DADT actually serves its supposed purposes, the policy loses.
All of this reinforces the point that in constitutional cases such as these, the standard of review accounts for nearly everything -- and particularly, whether the government is required to back up its policies with actual proof that they serve their supposed purposes, rather than mere conjecture.