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Ninth Circuit Revives Substantive Due Process Challenge to "Don't Ask, Don't Tell" Policy:
The Ninth Circuit handed down a decision today concluding that the military's "Don't Ask, Don't Tell" policy should be subject to heightened scrutiny under Lawrence v. Texas. The new decision is Witt v. Department of the Air Force. The majority opinion was by Judge Gould joined by Judge Graber; Judge Canby concurred in part and dissented in part on the ground that the majority did not go far enough.

  From the opinion:
In previous cases, we have applied rational basis review to DADT and predecessor policies. See, e.g., Holmes, 124 F.3d at 1136; Philips, 106 F.3d at 1425-26. However, 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.
  Specifically, the panel considers Lawrence and concludes that it's not persuasive as an application of rational basis scrutiny. But Lawrence doesn't say what kind of heightened scrutiny it is applying — or even whether it is applying heightened scrutiny — so the panel must determine what type of heightened scrutiny is appropriate.

  The panel ends up adopting a modified-intermediate scrutiny standard that it finds in a case involving forcing a defendant to take medication to be competent in a criminal trial, Sell v. United States, 539 U.S. 166 (2003). The panel then concludes that it doesn't have enough facts to know if the "Don't Ask, Don't Tell Policy" is consistent with Substantive Due Process under the specific forced medication standard from Sell, so it remands for more factfinding. (If you're missing the connection between gay rights and forcing a criminal defendant to take medication to be competent at trial, re-read the first two words of the title of this post.)

  Judge Canby concurred in part and dissented in part; he would have subjected the "Don't Ask, Don't Tell" policy to strict scrutiny.

  The obvious question is, will the Justice Department petition for certiorari, and if so, would the Court take it? This isn't my area and I haven't followed the cases, so I only have uninformed speculation. But I would think that the key difficulty from a cert perspective would be that the decision isn't final; the panel remanded for factfinding, and the court could still conclude that the policy is constitutional under the heightened scrutiny standard. So even if there is a "methodological split" on the degree of scrutiny for sexual orientation claims under Lawrence, it may not actually change outcomes in this situation. At the same time, the Court is always very attentive to cert petitions from the SG, and this is obviously a major issue of national importance. Thanks to How Appealing for the link.
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