1st Circuit Disagrees with 9th Circuit DADT Decision, BUT . . .

Was it just last week that we were giddy with excitement over a 9th Circuit decision undermining the militarily's bigoted "Don't Ask, Don't Tell" policy in Witt?

Today, we are listening to a lot of Radiohead and The Smiths, but we crank up Gorillaz by the end of the post as you will soon see.

Paul Mollica brought news of this decidedly mixed decision from the 1st Circuit in  Cook v. Gates (1st Cir. June 9, 2008).

On the 9th Circuit Witt decision:

We agree with much of the reasoning set forth in that opinion but also part ways with the 9th Circuit's approach in some significant respects. Most importantly, for reasons that will become apparent, we resolve differently the as applied substantive due process claim brought in this case. We also note that the case before us includes facial challenges to the Act and a First Amendment claim.

The upshot (and this was helped no doubt by fact that there was Tobias Wolff, writing on brief for amici curiae Akhil Reed Amar, C. Edwin Baker, Erwin Chemerinsky, Owen M. Fiss, Pamela S. Karlan, Andrew Koppelman, Kathleen M. Sullivan, and Laurence H. Tribe!):

[W]e are persuaded that Lawrence 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 . . . .

[W]e are convinced that Lawrence recognized that adults maintain a protected liberty interest to engage in certain "consensual sexual intimacy in the home." . . . .

To say, as we do, that Lawrence recognized a protected liberty interest for adults to engage in consensual sexual intimacy in the home does not mean that the Court applied strict scrutiny to invalidate the convictions . . . .

Lawrence is, in our view, another in this line of Supreme Court authority that identifies a protected liberty interest and then applies a standard of review that lies between strict scrutiny and rational basis . . . .

In other words, Lawrence balanced the strength of the state's asserted interest in prohibiting immoral conduct against the degree of intrusion into the petitioners' private sexual life caused by the statute in order to determine whether the law was unconstitutionally applied.

So far, so good. This is exactly what I argued for in  Lawrence's Quintessential Millian Moment and its Impact on the Doctrine of Unconstitutional Conditions (2005) and The (Neglected) Importance of Being Lawrence: The Constitutionalization of Public Employee Rights to Decisional Non-Interference in Private Affairs (2006), but the court does not continue in the direction that I believe the balancing should come out in the DADT context.

First, the facial challenge under substantive due process fails because :

Lawrence did not identify a protected liberty interest in all forms and manner of sexual intimacy. Lawrence recognized only a narrowly defined liberty interest in adult consensual sexual intimacy in the confines of one's home and one's own private life. 

I agree with one's own private life, but definitely not the confines of one's home. They did not say that in the holding or dicta in Lawrence. The court points to very flimsy language in Lawrence with an Id. cite and no parenthetical.  I believe that this is just the court trying to cabin its holding rather than coming to the necessary conclusion about a protected liberty interest "in all forms and manner of sexual intimately." I read this as a cowardly step back and one that is afraid to take on the might of the military apparatus:

Here, as in Rostker, there is a detailed legislative record concerning Congress' reasons for passing the Act. This record makes plain that Congress concluded, after considered deliberation, that the Act was necessary to preserve the military's effectiveness as a fighting force, 10 U.S.C. § 654(a)(15), and thus, to ensure national security. This is an exceedingly weighty interest and one that unquestionably surpasses the government interest that was at stake in Lawrence . . . .

To be sure, deference to Congressional judgment in this area does not mean abdication. Rostker, 453 U.S. at 67. But where Congress has articulated a substantial government interest for a law, and where the challenges in question implicate that interest, judicial intrusion is simply not warranted.

And once that statement is made, DADT survives under both a facial and under an "as applied" challenge.

And survives it does.  The claim also fails under normal rational basis review under equal protection and under the First Amendment (on which there is a partial dissent):

The First Amendment does not bar the military from using a member's declaration of
homosexuality as evidence of a violation of the Act.

BUT . . . . . as The Smiths album ends, and I put on Gorillaz's "Feel Good Inc.," I begin to realize that if the First Circuit interpretation is upheld, then it is a wonderful day for public employees (outside of the military) who won't have the military-deference albatross hanging around their necks and may soon begin to exercise sexual privacy interests off-duty without impact on their jobs in many cases!

Dare I dream . . . .

PS