Friday, December 12, 2008

DADT challenge proceeds; dissenters: "Stay in the closet!"

Last Thursday the Ninth Circuit denied the Government's request to have a challenge to the military's "Don't Ask, Don't Tell" policy heard by the full court. A panel of the court ruled in June that a challenge to DADT could go forward, remanding to the trial court to determine whether the policy met a form of heightened judicial scrutiny. If I'm counting right, the vote was 22-6.

Arthur Leonard and Dale Carpenter both discuss the decision and its possible ramifications - and in particular the possibility that the Obama administration, which will take office before the appeal deadline, may decide not to seeking review by the Supreme Court. They also mention the possibility that the outgoing administration might rush to seek cert., putting the new guys in a pretty awkward position.

I'd like to focus on a particularly jaw-dropping aspect of one of the dissenting opinions (PDF), written by Diarmuid O'Scannlain and joined by three other Republican appointees. At the heart of the case is whether Lawrence v. Texas requires any form of heightened judicial scrutiny for restrictions on sexual privacy. The panel held that it does. In dissent, O'Scannlain pointed to limiting language from Lawrence, which said:
The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.
Yeah, so what? So, O'Scannlain distinguishes this case on two amazing grounds. First, Lawrence does not apply to any non-criminal case. The implication appears to be that any imposition on sexual privacy is constitutional so long as no criminal penalty is attached. Presumably this means that sodomites could be barred from teaching, living in public housing, receiving Medicaid, or entering the country. This is simply wrong because, among other reasons, the severity of the criminal sanction was not part of the analysis in Lawrence. Indeed, if Lawrence is, as O'Scannlain suggests, a case decided under "rational basis review," the nature of the sanction is irrelevant, because the court considers only the connection between the law and the purported policy goal.

Even more astounding, however, is what O'Scannlain says next:
The [panel] opinion makes much of the fact that the homosexual acts for which, in part, [plaintiff] Major Witt was dismissed occurred in the privacy of the couple's shared home. But nothing in the “Don't Ask, Don't Tell” policy forbids anyone from doing anything in the home on pain of criminal or even of civil penalties. Indeed, the whole point of the policy is to keep such private behavior private. If no one asks and no one tells, no one in the military cares. “Don't Ask, Don't Tell” is about how the military manages its personnel; the policy only matters if an employee's homosexual conduct or acknowledgment of homosexuality becomes public. What happened in this case, and what must happen for “Don't Ask, Don't Tell” to apply, is that homosexual conduct, originally private or not, became public. And Lawrence simply does not apply to non-criminal public conduct.
That's right: acknowledging that you are gay is constitutionally unprotected "public conduct." Major Witt was within her constitutional rights when she made love with her partner at home, but stepped outside the bounds of protected privacy interests the moment she came out of the closet. No matter that Lawrence's reference to "public conduct" was clearly a reference to public sexual conduct, e.g., getting it on in the bushes in the local park. Being openly gay is no different, since as we're always being told, being out forces your sexuality down other people's throats. So, Lawrence says you have a right to be gay, so long as you stay in the closet!

Clearly, O'Scannlain's views are not the law. But to have a federal appellate judge write something so anachronistic in 2008, and have three of his colleagues join it, is in itself an affront to public decency.

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