In a suit brought against the Air Force challenging the "Don't Ask, Don't Tell" (DADT) policy after plaintiff was suspended from duty as an Air Force reservist nurse on account of her sexual relationship with a civilian woman,* dismissal of the suit for failure to state a claim is reversed in part where: 1) the DADT, after Lawrence v. Texas, 539 U.S. 558 (2003), must satisfy an intermediate level of scrutiny under substantive due process; and 2) such inquiry requires facts not present on the record before the circuit court.
-- Witt v. Dep't of the Air Force [Findlaw summary]
A Ninth Circuit panel, in a case involving an Air Force reservist nurse, held that the "Don't Ask, Don't Tell" policy must meet intermediate scrutiny under substantive due process. The panel held that Lawrence v. Texas albeit "ambiguous," clearly spoke in terms that merited some degree of heightened scrutiny. An important liberty interest was declared, not just failure to offer any rational reasoning for anti-sodomy laws. Likewise, other rulings as a whole suggest the importance of carefully treating the needs of individual service members.** OTOH, Lawrence avoided relying on equal protection, so previous circuit holdings rejecting that basis are still good law.
The concurrence argued that Lawrence -- if we take the main opinion's stance of "considering what the [Supreme] Court actually did" -- really spoke in fundamental right language, meriting strict scrutiny. "[T]he interest be merely 'served' by the challenged legislation; the legislation must be necessary to that purpose, and must sweep no more broadly than is essential to serve the governmental purpose." Also, the Court did note equal protection was a "tenable" reason, one furthered by the result, and relying on due process actually furthered the interests of homosexuals (it feared an opening for laws that disallowed sodomy across the board). Anyway, circuit precedent was wrong not to provide heightened scrutiny to homosexuals.
True enough. The main opinion's reasoning is a prudent path all the same, particularly because the military has generally been given much more discretion to infringe upon our rights. This includes free speech, free exercise of religion and so forth. The military was not singled out in Lawrence, but its listing of various situations (e.g., marriage) that was not at issue suggests intention to not set up an across the board rule. An honest reading of Lawrence clearly provides a sense that it was expressing a fundamental right of some sort. The language found therein underlines the point.
[And, it is misleading to say it "declined to address equal protection ," when it in fact did, though decided things on other grounds. The Court's comments were dicta, so the panel was largely correct in suggesting it alone was not grounds to overrule circuit precedent on an equal protection rationale. The word "address," however is ill chosen.]
Still, the panel was right to "hesitate to apply strict scrutiny when the Supreme Court did not discuss narrow tailoring or a compelling state interest in Lawrence." It's decision "not address the issue here" also in notable contrast [see my comments] with the California Supreme Court not just avoiding the gender issue, but dismissing it in shoddy fashion. It is not surprising they wanted to avoid it, but that path had problems. The panel does not totally avoid this minefield, but its dismissive passing the equality question by at least avoids a comparable extended makeweight argument as provided by its state brethren.
Heightened review suggests an important interest is at stake, even if it could be burdened in "special circumstances" to deal with contrasting important state interests, though the burden must be done in a careful way and as a result of the absence of adequate alternatives. The importance of let's say the rights of homosexuals (though a due process ground could also secure the rights of the unmarried etc.) should not be violated, even if a certain policy might be useful in various ways. An artificial application of this standard cannot ignore why this extra work is necessary in the first place. Strict scrutiny requires even more work. Cf. sex based statutory rape laws with those not allowed for race.
The breadth of the problems of the laws struck down in Romer and Lawrence has allowed certain courts to avoid the true breadth of the principles found therein, particularly the latter. A ruling that cites numerous fundamental rights / strict scrutiny rulings and then says Bowers wrongly didn't join the party clearly was not just a matter of rational review. It is time for the federal courts to consistently so recognize, and apply heightened scrutiny to troublesome laws that might require more heavy lifting (if not always too much -- see the inability of one one circuit to target laws against sex toys).
It's an extended process -- in this very case, the matter was remanded for further review, but so it goes. The policy also has free speech problems (as at least one court in the past recognized), but again, speech is in various respect given less security in military contexts, and the due process argument was (rightly) deemed more likely to be successful. The footnote below does suggest free speech might complicate the works in more ways than one all the same.
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* From the NYT article:
The case was brought by Maj. Margaret Witt, a flight nurse who served in the Air Force for two decades, received several medals and was featured in the service’s promotional materials.
Major Witt also shared a life with a woman not affiliated with the military for six years in Spokane, Wash., about 250 miles from the base to which she was assigned. The women kept their relationship private, and the decision did not say how the Air Force found out about it.
One of Major Witt’s lawyers described what happened. “Some citizen in Spokane,” the lawyer, James E. Lobsenz, said, “called up and said there are these lesbian women living in a house here and one of them is in the Air Force and you should know that.”
** The ruling noted the principle that it was "bound by the theory or reasoning underlying a Supreme Court case, not just by its holding" and took its intermediate scrutiny path from a ruling involving forced medication of those in governmental custody. This underlines the holistic nature of the law, a set of interlocking principles that should not be selectively applied given the situation.