Civil Rights,  Constitutional Law,  Due Process,  Equal Protection

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.