Wednesday, May 21, 2008

9th Circuit Deals Body Blow to Military's DADT Policy; Victory for Sexual Privacy Rights of Public Employees

Military_uniform In a stunning turn of events, the Ninth Circuit Court of Appeals has found (2-1) that impingement on sexual orientation by the military's Don't Ask, Don't Tell policy warrants something akin to intermediate scrutiny under the due process clause and remands the case for further findings based on its new Lawrence-based test.  Amazingly, the partial dissent would apply strict scrutiny!

The case is Witt v. Dept. of Air Force, 06-35644 (9th Cir. May 21, 2008).  Here are some highlights of the opinion:

Plaintiff-Appellant Major Margaret Witt (“Major Witt”) sued the Air Force, the Secretary of Defense, the Secretary of the Air Force, and her Air Force commander (“the Air Force”) after she was suspended from duty as an Air Force reservist nurse on account of her sexual relationship with a civilian woman. Major Witt alleges that 10 U.S.C. § 654, commonly known as the “Don’t Ask, Don’t Tell” policy (“DADT”), violates substantive due process, the Equal Protection Clause, and procedural due process. She seeks to enjoin DADT’s enforcement . . . .

In July 2004, Major Witt was contacted by Major Adam Torem, who told her that he had been assigned to investigate an allegation that she was homosexual. She declined to make any statement to him. An Air Force chaplain contacted her thereafter to discuss her homosexuality, but she declined to speak to him, as well. In November 2004, Major Witt’s Air Force superiors told her that they were initiating formal separation proceedings against her on account of her homosexuality . . . .

Major Witt argues that Holmes, Philips, and Beller are no longer dispositive in light of Lawrence v. Texas, 539 U.S. 558 (2003), in which the Supreme Court struck down a Texas statute that banned homosexual sodomy. Accordingly, to resolve this appeal, we must consider the effect of Lawrence on our prior precedents . . . .

Major Witt argues that Lawrence effectively overruled those cases by establishing a fundamental right to engage in adult consensual sexual acts. The Air Force disagrees. Having carefully considered Lawrence and the arguments of the parties, we hold that Lawrence requires something more than traditional rational basis review and that remand is therefore appropriate . . .

We therefore conclude that Lawrence applied something more than traditional rational basis review. This leaves open the question whether the Court applied strict scrutiny, intermediate scrutiny, or another heightened level of scrutiny. Substantive due process cases typically apply strict scrutiny in the case of a fundamental right and rational basis review in all other cases. When a fundamental right is recognized, substantive due process forbids the infringement of that right “at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.” Reno v. Flores, 507 U.S. 392, 301-02 (1993) (emphasis omitted).  Few laws survive such scrutiny, and DADT most likely would not. However, we hesitate to apply strict scrutiny when the Supreme Court did not discuss narrow tailoring or a compelling state interest in Lawrence, and we do not address the issue here . . . .

We thus take our direction from the Supreme Court and adopt the first three heightened-scrutiny Sell factors as the heightened scrutiny balancing analysis required under Lawrence. We hold that when the government attempts to intrude upon the personal and private lives of homosexuals, in a manner that implicates the rights identified in Lawrence, the government must advance an important governmental interest, the intrusion must significantly further that interest, and the intrusion must be necessary to further that interest. In other words, for the third factor, a less intrusive means must be unlikely to achieve substantially the government’s interest . . . .

Here, applying heightened scrutiny to DADT in light of current Supreme Court precedents, it is clear that the government advances an important governmental interest. DADT concerns the management of the military, and “judicial deference to . . . congressional exercise of authority is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged.” Rostker v. Goldberg, 453 U.S. 57, 70 (1981). Notably, “deference does not mean abdication.” Id. “Congress, of course, is subject to the requirements of the Due Process Clause when legislating in the area of military affairs . . . .” Weiss v. United States, 510 U.S. 163, 176 (1994).

However, it is unclear on the record before us whether DADT, as applied to Major Witt, satisfies the second and third factors. The Air Force attempts to justify the policy by relying on congressional findings regarding “unit cohesion” and the like, but that does not go to whether the application of DADT specifically to Major Witt significantly furthers the government’s interest and whether less intrusive means would achieve substantially the government’s interest. Remand therefore is required for the district court to develop the record on Major Witt’s substantive due process claim. Only then can DADT be measured against the appropriate constitutional standard.

I'm an absolutely giddy over this case.  Although the court did not take my suggestion of applying the Pickering analysis in the substantive due process context (see here, here, and here), it is consistent with my idea that Lawrence means heightened review for public employee's sexual privacy interests. 

Two more points: on the one hand, because this case arises in the military environment, it is not an ideal case to establish the sexual privacy rights of public employees and Witt may lose on remand.  On the other hand, the finding of heightened review is significant in and of itself and there is nothing in the opinion that limits its application to the military.

I suspsect, of course, a petition en banc to be filed and maybe eventual Supreme Court review, but today is a day of celebration and vindication for all those who believe strongly in the sexual privacy rights of public employees.

Hat Tip: Paul Mollica


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Tracked on May 22, 2008 10:02:17 AM


We need to pay attention to who is on these 3-judge panels. Opinion by Ronald M. Gould, who was appointed by Clinton. The other two were Susan P. Graber, also appointed by Clinton, and William C. Canby, a senior judge who was appointed by Jimmy Carter. It is also worth noting that Canby was on the three-judge panel twenty years ago that struck down the predecessor military anti-gay policy in the Perry Watkins case -- only to have that decision vacated en banc and decided on other, case-specific grounds.

It is also worth noting that the panel decided to treat this as an "as applied" case rather than a "facial challenge" to DADT. The charge on remand is not for the Defense Department to justify the policy in the abstract, but rather to justify its application to Major Witt. (Of course, many of the litigated military cases involve servicemembers with exemplary records such as Witt's, but few are totally comparable in terms of the discretion with which she conducted her private life off-based in the context of being an Army Reserve nurse.)

So I would not be quite so giddy about this. This is an atypical panel of the 9th Circuit, and the likelihood of en banc consideration seems high if the government wants to pursue that route.

Posted by: Art Leonard | May 21, 2008 1:33:02 PM

All caveats aside, the very image of Paul being giddy has me, well, giddy!

Posted by: eric | May 22, 2008 5:02:37 AM

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