At least the Ninth Circuit, in contrast to the California Supreme Court, had the decency to wait until after my incommunicado vacation ended.
I agree with Eugene that the best, though hardly inescapable, reading of Lawrence is that it recognizes a fundamental right. I argued for that interpretation in a law review article shortly after the decision came down. Is Lawrence Libertarian?, 88 Minn. L. Rev. 1140(2004). Justice Kennedy's opinion was very opaque, more poetry than marching orders. Many interpretations are plausible. So I take some satisfaction in the panel's conclusion that Lawrence supports heightened scrutiny for laws that burden the exercise of private adult sexual autonomy.
But just about every lower federal and state court, and it seems most scholars, until now have refused to read Lawrence that way. Even courts that have struck down laws that are anti-gay, like the Kansas Supreme Court (striking down a law establishing vastly different criminal penalties for sex with a minor depending on whether the minor was of the same or opposite sex), or striking down laws that have infringed on private adult sexual autonomy, like a recent Fifth Circuit panel (striking down a Texas law against sex toys), have avoided reading Lawrence as a fundamental-rights case. Indeed, on the question of whether the sodomy decision recognized a fundamental right, it can be said without too much exaggeration that the controlling opinion in Lawrence is actually Justice Scalia's dissent.
I also agree that the military context, with the attendant deference the Supreme Court tends to give to congressional judgments about military needs, makes this something other than a run-of-the-mill heightened-scrutiny case.
But I do think cert would be premature at this stage, even if the en banc court affirmed the panel's somewhat unclear statement of the applicable scrutiny. As Eugene notes, we have no actual decision striking the military policy. If the military ban were struck down, and survived further appellate review, Supreme Court review would be all but inevitable.
Nevertheless, quite apart from whether DADT is ultimately struck down, and unless the en banc court reverses the panel's determination that some form of intermediate scrutiny applies under Lawrence, this holding by itself is significant.
Related Posts (on one page):
- What Next for Don't Ask, Don't Tell?
- First Circuit upholds DADT:
- Don't Ask, Don't Tell Cases and Government Employees:
- First Circuit Demands Heightened Scrutiny of Restrictions on Homosexual Conduct, but Upholds "Don't Ask, Don't Tell" On Deference-to-Military Grounds:
- Lawrence and the Ninth Circuit opinion:
- Prospects for Supreme Court Review in the Don't Ask, Don't Tell Case:
- Ninth Circuit Demands Heightened Scrutiny of "Don't Ask Don't Tell":
- Ninth Circuit Revives Substantive Due Process Challenge to "Don't Ask, Don't Tell" Policy:
Basically, there is still a popular (though not among high judges) idea that 'legislating morality' is a legitimate governmental interest, so so long as the particular anti-gay law was sufficiently tailored towards the perceived immoral behavior rather than the status of people as homosexuals, it would pass rational basis scrutiny.
However, with Lawrence obliterating the status/behavior distinction that had been left open by Romer, discouraging homosexual behavior is no longer a 'legitimate' governmental interest at all. Practically, this means no law touching on sexual orientation is going to get rational basis scrutiny.
It is this kind of reading-whatever-you-want-into-a-text that has given lawyers and judges the same high reputation and astrologers and alchemists.
The Court did say, "The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual" -- but while that uses one rational basis test term (legitimate state interest) it doesn't use the other (rationally related), and it adds a balancing-like requirement (that the interest suffice to justify the intrusion into personal and private life) that's entirely absent in the traditional rational basis test.
But I take it that you have some specific quotes you had in mind -- can you please point to them?
It would be funny if it weren't so true. I could not believe my eyes when I was reading that 11th Circuit op on gays' adopting children.
Well. But isn't "suffic[ient] to justify the intrusion into personal and private life" just a workable version of "rationalyl related"?
Another part is that the result in the case is not what one would expect under the rational basis test. As I wrote shortly after Lawrence, a ban on homosexual anal sex would be rationally related to the eminently legitimate interest in preventing sexually transmitted diseases. There is at least credible evidence (that's all the rational basis test requires) that such sex is more dangerous than other forms of sex. That the law is potentially overinclusive in that it also applies to oral sex (including oral sex among lesbians, which as I understand it is really quite safe) and to sex using condoms is irrelevant, since such overinclusiveness is generally not unconstitutional under the rational basis test (and at most it would require the law to be struck down as to oral sex).
That the law is potentially underinclusive in that it excludes unprotected heterosexual genital sex is also generally not unconstitutional under the rational basis test (especially since a legislature might reasonably conclude that such sex is, under current facts, less dangerous per incident than homosexual anal sex). And the existence of less restrictive alternatives -- such as a condom requirement -- would also not invalidate the law under the rational basis test (in part because such alternatives may themselves be not as effective as a total ban, partly because condoms aren't perfect and partly because such a law would be even harder to enforce than a total ban). Finally, the fact that preventing disease may not have been the actual purpose of the law is generally irrelevant under the rational basis test; it's enough for the law to be rationally related. There's lots of rational basis test precedent for all the legal principles I just referred to.
Moreover, as you can tell from this description of the rational basis test, rights that are subject to protection only under a rational basis test aren't really meaningfully "rights" at all. You can say "You have the constitutional right to ingest anything into your body that you like, unless the government has a rational basis for restricting that," but it doesn't mean much, since under the rational basis test the government can impose pretty much whatever restrictions it pleases. In reality, you don't actually have such a constitutional right. And that's even true if the test were a so-called "rational basis with teeth" or "active rational basis" test, which the Court has at times used in some Equal Protection Clause cases (e.g., City of Cleburne v. Cleburne Living Center, Romer v. Evans): A right subject to even "active rational basis test" scrutiny isn't even a right, because the government would be free to pretty much abolish it almost at will.
So that's a big part of why I think ambiguous language in the opinion shouldn't be read as applying a rational basis test with which the result of the case is dramatically inconsistent.
It's also a good reason why we shouldn't elect busybodies who have nothing better to do than pass ridiculous laws that limit our freedoms in the first place.
Whenever someone starts on about morals to me, I run the other direction.
I'll believe your claim that the government shouldn't be passing laws that limit our freedoms when homosexuals stop passing laws that limit our freedoms.
As Randy and I have gotten into before, my position is that legislating morality has historically been acceptable, and should be so, as long as it is done within the confines of a constitutional federalist system. Each state can follow the will of its citizens, and any state which goes too far can be reigned in by the others via Amendment (or civil war).
But Lawrence is a judicial declaration that 'discouraging homosexual behavior' can in practice never be a legitimate governmental interest. Given the history of the USA, I find that declaration a ridiculous overreaching of the judiciary into legislative prerogative. I say, if you can outlaw prostitution and polygamy, you should be able to outlaw sodomy.
Why? That's the connection between prostitution and gay sex? And did you really mean to say it was OK to ban sodomy, which includes acts that many heterosexual married couples perform on each other?
Nope. I'm against drug laws, prostitution laws, gambling -- a bit ambivelent on smoking laws (I have the right to breath clean air). Seat belt laws are not moral but health and safety laws, in my opinion.
" Lawrence is a judicial declaration that 'discouraging homosexual behavior' can in practice never be a legitimate governmental interest. Given the history of the USA, I find that declaration a ridiculous overreaching of the judiciary into legislative prerogative."
I can't think of any reason why gov't should ever discourage homosexual behavior, any more than it should discourage any form of religion, or discourage racial behavior (whatever that might be), and so on. I don't require the gov't to promote homosexual behavior, but I don't expect it to ever discourage it. But if you can come up with a reason why the gov't should ever be able to say I can't have sex with my boyfriend, or listen to show tunes, which is also very much homosexaul behavior, then I am willing to listen to it.
Say again? Listening to show tunes is very much NOT part of this homosexual's behavior!
Hmmm. It seems that the quote I was thinking about was in Scalia's dissent. I do still think that the opinion clearly is based on a rational basis test.
"As an alternative argument in this case, counsel for the petitioners and some amici contend that Romer provides the basis for declaring the Texas statute invalid under the Equal Protection Clause. That is a tenable argument, but we conclude the instant case requires us to address whether Bowers itself has continuing validity. Were we to hold the statute invalid under the Equal Protection Clause some might question whether a prohibition would be valid if drawn differently, say, to prohibit the conduct both between same-sex and different-sex participants."
So they intend to reverse Bowers, which was decided using rational basis.
"The rationale of Bowers does not withstand careful analysis. In his dissenting opinion in Bowers Justice Stevens came to these conclusions:
"'Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of “liberty” protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons.' 478 U.S., at 216 (footnotes and citations omitted).
"Justice Stevens’ analysis, in our view, should have been controlling in Bowers and should control here.
"Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled."
The basis that they use for overturning Bowers and which they say applies to Lawrence as well is clearly a rational basis test. "(T)he fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice".
Lawrence deals with homosexual sex; you are talking about anal sex. The two are not the same! The Texas law especially was egregious in this respect as it permitted every and any sexual practice between men and women (or, bizarrely, men and animals) but not between two partners of the same sex.
Re: I say, if you can outlaw prostitution and polygamy, you should be able to outlaw sodomy.
Prostitution and polygamy are both public behaviors. Prostitution is an economic behavior and we have long since decided that governments may regulate any and all economic behaviors. Polygamy of course actually requires the active assent of government since it is government that grants marriage licenses. Now sodomy may be public, and in fact it is still illegal as such, but usually it is a private behavior not impinging on the public weal at all. Also, "sodomy" and "homosexuality" are not synonyms and should not be used as such. Heterosexual couples, including married ones, can also practice sodomy.
and they quite often do, with gusto. But for some reason, our political discourse allows that only gays engage in oral or anal sex.
I'll even admit that some heteros enjoy show tunes....