Don’t Ask, Don’t Tell . . . and Don’t Dismiss

The military’s “Don’t Ask, Don’t Tell” (“DADT”) policy on homosexual service members is put through the wringer in Witt v. Dept. of the Air Force, case no. 06-35644 (9th Cir. May 21, 2008). The Ninth reverses the district court’s Rule 12(b)(6) dismissal of Major Witt’s complaint alleging that her impending discharge on the ground of homosexuality violates substantive due process, procedural due process, and equal protection.

The key to the ruling was the Supreme Court’s decision in Lawrence v. Texas (2003) 539 U.S. 558, On substantive due process, the court determines that Lawrence requires more careful scrutiny of DADT than the Ninth’s previous standard of rational basis review, even though Lawrence itself is silent on the scrutiny the court applied in that case. Absent that statement, the parties each pointed to snippets of the Lawrence opinion to support their view of the appropriate level of review. The Ninth rejects this purely verbal approach:

The parties urge us to pick through Lawrence with a fine-toothed comb and to give credence to the particular turns of phrase used by the Supreme Court that best support their claims. But given the studied limits of the verbal analysis in Lawrence, this approach is not conclusive. Nor does a review of our circuit precedent answer the question; as the Court of Appeals for the Armed Forces stated in Marcum, 68 M.J. at 204, “[a]lthough particular sentences within the Supreme Court’s opinion may be culled in support of the Government’s argument, other sentences may be extracted to support Appellant’s argument.” In these ambiguous circumstances, we analyze Lawrence by considering what the Court actually did, rather than by dissecting isolated pieces of text. In so doing, we conclude that the Supreme Court applied a heightened level of scrutiny in Lawrence.

(Emphasis in original.) Of course, it has to engage in its own verbal analysis of Lawrence to figure it out. But the court also notes that Lawrence relied on cases that applied heightened scrutiny.

The Ninth adopts three of the four factors applied post-Lawrence by the Supreme Court in Sell v. United States (2003) 539 U.S. 166, finding them equally applicable here:

Courts, however, must consider the facts of the individual case in evaluating the Government’s interest . . . . Special circumstances may lessen the importance of that interest. . . .

Second, the court must conclude that involuntary medication will significantly further those concomitant state interests. . . .

Third, the court must conclude that involuntary medication is necessary to further those interests. The court must find that any alternative, less intrusive treatments are unlikely to achieve substantially the same results. . .

Thus, regarding Major Witt’s challenge:

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, or the third factor, a less intrusive means must be unlikely to achieve substantially the government’s interest. [Citation.]


In addition, we hold that this heightened scrutiny analysis is as-applied rather than facial. “This is the preferred course of adjudication since it enables courts to avoid making unnecessarily broad constitutional judgments.” City of Cleburne v. Cleburne Living Ctr. Inc., 473 U.S. 432, 447 (1985). In Cleburne, the Court employed a “type of ‘active’ rational basis review,” Pruitt, 963 F.2d at 1165-66, in requiring the city to justify its zoning ordinance as applied to the specific plaintiffs in that case. And Sell required courts to “consider the facts of the individual case in evaluating the Government’s interest.” 539 U.S. at 180. Under this review, we must determine not whether DADT has some hypothetical, post-hoc rationalization in general, but whether a justification exists for the application of the policy as applied to Major Witt. This approach is necessary to give meaning to the Supreme Court’s conclusion that “liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.” Lawrence, 539 U.S. at 572.

We also conclude that our holding in Beller, 632 F.2d 788, that a predecessor policy to DADT survived heightened scrutiny under the Due Process Clause, is no longer good law.

(Footnote omitted.)

The Ninth thus reverses the dismissal of the substantive and procedural due process claims.

Major Witt doesn’t fare so well on her equal protection claim, in which she claimed homosexuals are treated differently than others who might cause similar discomfort among military members (e.g., child molesters) but who are not subject to automatic discharge. The Ninth holds that Lawrence did not disturb precedent subjecting such claims to rational basis review, so the dismissal stands.

In an opinion concurring in part and dissenting in part, Judge Canby states he would reverse on the equal protection claim as well and apply strict scrutiny to all the claims. His opinion may provide fertile ground for a petition for rehearing or rehearing en banc.

UPDATE (5/21/08): Other coverage around the blawgosphere:

Several related posts by assorted contributors at The Volokh Conspiracy are aggregated here, including a post on the prospects of Supreme Court review. Professor Martin’s post at California Appellate Report also briefly addresses the prospects for Supreme Court review, though his analysis on that point consists mainly of a concluding zinger about the prospects .

A law student’s take, by the pseudonymous Gabriel Malor, includes the observation that the decision is a “Memorial Day gift to John McCain.”

There’s a long post at Polymorphous Perversity, a bawg that bills itself as “legal blog on sexuality and gender.”

Much more to follow, I’m sure.

Processing Irony in a Ninth Circuit Equal Protection Case

Circuit Judge Berzon hooked me with this opening paragraph of U.S. v. Trimble, case no. 06-30298 (May 30, 2007):

The Bill of Rights was ratified in 1791. The United States produced its first automobile in 1877, and the first traffic ticket issued in 1904.

This appeal to the Ninth Circuit was over a traffic ticket. Specifically, the penalty imposed for the violations as a result of the form of ticket used. Notwithstanding the minor nature of the offenses, the case implicates a major constitutional doctrine — equal protection.

Trimble was ticketed on a military base. The officer who wrote Trimble’s ticket did so on a brand new form that imposed a $25 processing fee in addition to any fine. Because of a shortage of the new forms, other officers at the exact same time were still writing tickets on the old form of ticket, which made no mention of a processing fee. At her court appearance, the fine imposed on Trimble included the processing fee on three violations (for a total of $75). She appealed, claiming that the imposition of the processing fee based solely on the form of ticket written violated the equal protection clause. The court agrees.

The irony? The $25 processing charge was instituted, according to the court, “to offset the costs of managing petty offense cases in the federal courts.” Yet Trimble invoked the appellate jurisdiction of the Ninth Circuit, and successfully avoids the fee that was intended to offset the costs of routine federal court management.

On the equal protection issue, the court finds no rational basis for allowing different penalties despite its “excursion into imaginative recreation of possible justifications.”

Professor Shaun Martin isn’t sure the court exhausted the possibilities and is taken aback at the resources poured into an appeal over $75. His post at California Appellate Report ends (emphasis in original):

But let me add one more thing. Seventy five dollars. For that we appoint a public defender and have a U.S. attorney and the P.D. brief and argue an entire appeal? We can’t just save some money by confessing error and refunding the piddly seventy-five bucks?

Perhaps in the long run it will turn out to be money well spent. Professor Berman at Sentencing Law and Policy thinks the case may have broader implications:

Based on a quick read, I am not entirely sure whether the Trimble holding might provide a basis for questioning other sorts of criminal justice “injuries large and small.” Any readers have any suggestions or creative litigation thoughts?

Anyone who wants to respond to Professor Berman should go to his post.

Howard Bashman at How Appealing suggests that “the Administrative Office of the U.S. Courts might wish to adjust its revenue projections to reflect that it won’t be receiving a $25 processing fee” for tickets issued at the base.

Small stakes, big issue, interesting case.

UPDATE: (5/31/07): A short post on this case at the Volokh Conspracy gathers some interesting comments. Decision of the Day also wrote up this one, and follows up with a post today that suggests the first circuit isn’t so solicitous of small cases.

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