Wednesday, June 11, 2008

Back on the See-Saw: 10th Finds Lawrence Only Gives Rational Review to Public Employee Sexual Privacy Rights

Shakyscales_2 Don't worry, I am not about to play The Smiths again yet, but this decision by the 10th Circuit on the meaning of Lawrence for public employees is discouraging.

Dale Carpenter from the Volokh Conspiracy has the 411:

Today, in Seegmiller v. Laverkin City, a panel of the Tenth Circuit unanimously upheld a city's private oral reprimand of a police officer for an adulterous affair she had with another officer not in her department. The city concluded that the affair interfered with her duties as an officer. The officer then challenged the reprimand on state and federal tort and constitutional grounds citing, in part, Lawrence. The unanimous panel opinion held that Lawrence did not recognize a fundamental right to private adult sexual intimacy, but instead struck down state sodomy laws as irrational.

The Tenth Circuit parted company with (but did not cite) recent opinions by both the First Circuit, which applied a balancing test to a challenge to "Don't Ask, Don't Tell" yesterday based on Lawrence, and with the Ninth Circuit, which last month applied intermediate scrutiny to a DADT challenge based on Lawrence. In so doing, the Tenth Circuit repeated some of the arguments that other courts and Justice Scalia have made about the decision. Like other courts, the panel even cited Justice Scalia's dissent as an authoritative guide to the meaning of Justice Kennedy's majority opinion in Lawrence.

How a dissent can provide an authoritative guide is only clear when one consider that Judge Tymkovich, the writer of the opinion, is a very conservative jurist and obviously a big fan of his fellow judicial conservative activist, Justice Scalia.  But Dale sums up it up best when he says, "it is now clear that nothing about Lawrence is clear."  I only hope when the inevitable review of these cases come that President Obama has had the chance to make numerous appointments to the Supreme Court.


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