May 23, 2008
"Don't Ask Don't Tell" Subject to Intermediate Scrutiny
On May 21, 2008 the Court of Appeals for the Ninth Circuit, in Witt v. Dep't of the Air Force, 2008 U.S. App. LEXIS 10794 (9th Cir. May 21, 2008), overruled the lower court's decision to dismiss the case for failure to state a claim under the Due Process clause of the Constitution. Here, a woman who had performed extremely well in the military, winning honors through the years, was dismissed from duty after news that she was in a committed lesbian relationship reached her military commanders. She challenged the Don't Ask Don't Tell "DADT" policy as a violation of her constitutional rights to Due Process and Equal Protection. Id. at *1-6.
In a very important decision, the Ninth Circuit recognized that the Lawrence v. Texas 2005 Supreme Court decision created a recognized right of privacy for sexual conduct which subjects Don't Ask Don't Tell to intermediate scrutiny. Id. at *13. The court stated that only one circuit (the Eleventh Circuit in Lofton) has held that Lawrence did not create a new fundamental right, but the Ninth Circuit declined to follow that logic. Id. at *19-20.
Thus, the military, according to the Ninth Circuit, must demonstrate that it has an important government interest, that DADT will significantly further that governmental interest and that there is no alternative, lesser intrusive means of furthering that governmental interest. Id. at *29.
The court recognizes that the government has an important interest (the management of the military), but it is unclear whether DADT significantly furthers that interest and/or whether the interest could be furthered through less intrusive means. Id. at *30.
The court declined to apply heightened scrutiny to the Equal Protection claim, however, and affirmed that part of the lower court's decision. Id. at *37. Thus, the court remanded to the district court for further consideration of the due process clause claim in light of the heightened standard of review. Id. at *38.
Thoughts: This is a very significant decision because the Ninth Circuit recognizes here, for the first time, that the Lawrence sodomy decision creates a heightened standard of review for governmental interference with sexual privacy. It will be interesting to see what the lower court holds in response on remand and how other circuit courts (beside the Eleventh Circuit) handle similar questions.