The Log Cabin Republicans brought a suit challenging DADT, just declared moot by the Ninth Circuit because the underlining law was overturned. Regarding a claim that benefits might have been lost, "these missed benefits are not legal penalties from past conduct," so an exception pursuant to a previous ruling do not apply. The per curiam underlined what they were doing:
A judge does not "sacrifice the rule of law to find rights they favor" in seeing this. That tired reference to what is actually a difference of opinion based on a honest judgment (to me, also correct) is as recently noted, a pet peeve of mine. The dissent in the 11th Cir. case he cites (the same circuit that struck down the PPACA provision) underlines the point. He also cites a conservative 7th Cir. ruling rejecting a shot in the dark defense of brother/sister incest that similarly went out of its way to diminish Lawrence v. Texas. Again, cf. the concurrence to Muth v. Frank, which reached the same result without the right wing commentary.
What is the wrongful fundamental right at stake here?
The military can have stricter rules and it is true that Lawrence v. Texas (like Heller) was sure to add an advisory section about what is not covered. But, the ruling was clear that homosexual couples were to be treated like "individuals," and that the law "demeans the lives of homosexual persons." The ruling ultimately rested on substantive due process but clearly had an equal protection flavor. This was reaffirmed in a later case that cited O'Connor's equal protection concurrence. As with Romer v. Evans (overbroad animus) and back to Griswold (married couples), basic principles are at stake, not merely narrow results.
Sorry if you do not "favor" this result. DADT was overturned because, as with racial desegregation of the armed forces, the equal protection principles found in the cited cases were deemed applicable to the military. It is gratuitous for some appellate judge to allege that the district court judge voicing the same general spirit was in effect making shit up out of policy preferences. At least. The question was at least debatable. After all, a few judges thought it was the right approach long before Lawrence was decided, even after Bowers. Merely speaking about one's status being not the same thing as conduct.
It surely does not merit the narrow reading of Lawrence provided here, responding to something not quite that "outlier." A case was cited that counseled against broad judicial recognition of rights, but as with Romer not citing Bowers, the dissent criticized the majority not citing Washington v. Glucksberg. If anything, the implication might be that the "fundamental rights" of "intimate and personal choices" made that case not applicable, since (unlike physical assistant suicide) there was nothing novel going on. Just applying old rights equally.
The restrictive approach of the DADT concurrence was "judicial activism" of a questionable sort on the merits. The two other judges might be sending a signal too with the apparently particularly forceful language but if so, they did it with a bit more finesse than trying to restrict Lawrence to the facts or something.
Because Log Cabin has stated its intention to use the district court’s judgment collaterally, we will be clear: It may not. Nor may its members or anyone else. We vacate the district court’s judgment, injunction, opinions, orders, and factual findings—indeed, all of its past rulings—to clear the path completely for any future litigation. Those now-void legal rulings and factual findings have no precedential, preclusive, or binding effect.This wasn't enough for Judge O’Scannlain, who decided to underline how wrong he thought the district court was to apply Lawrence v. Texas to the military context or suggest some "fundamental right" was protected by that ruling, some broad language of what was at stake (hint: not just sex) notwithstanding. I would add notwithstanding citation of Griswold et. al. that were clearly about fundamental rights. The whole point of the opinion was that the conduct here fit into the general trend, Bowers denying it being simply wrong.
A judge does not "sacrifice the rule of law to find rights they favor" in seeing this. That tired reference to what is actually a difference of opinion based on a honest judgment (to me, also correct) is as recently noted, a pet peeve of mine. The dissent in the 11th Cir. case he cites (the same circuit that struck down the PPACA provision) underlines the point. He also cites a conservative 7th Cir. ruling rejecting a shot in the dark defense of brother/sister incest that similarly went out of its way to diminish Lawrence v. Texas. Again, cf. the concurrence to Muth v. Frank, which reached the same result without the right wing commentary.
What is the wrongful fundamental right at stake here?
Put simply, the substantive due process question raised by Don’t Ask, Don’t Tell was whether a service member possesses a right to serve in the military when he is known to engage in homosexual conduct or when he states that he is a homosexual.The latter point is free speech, even if it is free speech that arises out of conduct. Nothing novel about protecting that. What if the military tried to silence people talking about their sexuality totally? Unlikely. How does one do that? It would require not talking about spouses or showing any evidence of it to others. The basis of the policy was that there was something special about homosexuals. Lawrence v. Texas (and Romer v. Evans) underlined that homosexuals weren't some special group in this respect. It was not merely something that struck down an "outlier criminal statute." It "resolved by determining whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty."
The military can have stricter rules and it is true that Lawrence v. Texas (like Heller) was sure to add an advisory section about what is not covered. But, the ruling was clear that homosexual couples were to be treated like "individuals," and that the law "demeans the lives of homosexual persons." The ruling ultimately rested on substantive due process but clearly had an equal protection flavor. This was reaffirmed in a later case that cited O'Connor's equal protection concurrence. As with Romer v. Evans (overbroad animus) and back to Griswold (married couples), basic principles are at stake, not merely narrow results.
Sorry if you do not "favor" this result. DADT was overturned because, as with racial desegregation of the armed forces, the equal protection principles found in the cited cases were deemed applicable to the military. It is gratuitous for some appellate judge to allege that the district court judge voicing the same general spirit was in effect making shit up out of policy preferences. At least. The question was at least debatable. After all, a few judges thought it was the right approach long before Lawrence was decided, even after Bowers. Merely speaking about one's status being not the same thing as conduct.
It surely does not merit the narrow reading of Lawrence provided here, responding to something not quite that "outlier." A case was cited that counseled against broad judicial recognition of rights, but as with Romer not citing Bowers, the dissent criticized the majority not citing Washington v. Glucksberg. If anything, the implication might be that the "fundamental rights" of "intimate and personal choices" made that case not applicable, since (unlike physical assistant suicide) there was nothing novel going on. Just applying old rights equally.
The restrictive approach of the DADT concurrence was "judicial activism" of a questionable sort on the merits. The two other judges might be sending a signal too with the apparently particularly forceful language but if so, they did it with a bit more finesse than trying to restrict Lawrence to the facts or something.