First Circuit Demands Heightened Scrutiny of Restrictions on Homosexual Conduct, but Upholds "Don't Ask, Don't Tell" On Deference-to-Military Grounds:

This is in today's mostly unanimous Cook v. Gates. A brief summary:

1. Sexual Autonomy Rights: Like the Ninth Circuit did a few weeks ago, the First Circuit strongly suggests that Lawrence v. Texas recognizes a fundamental constitutional right to sexual autonomy, so that laws that burden this right must be subject to some heightened scrutiny. (The court defends this interpretation of Lawrence in great, and in my view persuasive, detail, at pp. 18-28.) I've long argued that this is how Lawrence must be read, but this deepens a circuit split with an Eleventh Circuit decision holding that Lawrence only mandated rational basis scrutiny.

Also, like the Ninth Circuit, the court seems to opt for some sort of intermediate scrutiny, though it's less precise in the terms of the scrutiny than is the Ninth Circuit: The First Circuit calls for "balanc[ing] the strength of the state's asserted interest ... against the degree of intrusion into [people's] private secual life." (See my earlier post for a discussion of some precedents for this sort of intermediate scrutiny.)

2. Special Standards for the Military: Nonetheless, unlike the Ninth Circuit, the First Circuit upheld Don't Ask, Don't Tell despite its intrusion on sexual autonomy rights, because of the special deference that the Court has generally given the government in controlling the actions of military personnel. I touched on that too in my post about the Ninth Circuit decision, where I faulted the Ninth Circuit for not discussing those military deference cases. The First Circuit did discuss them, and drew from those precedents the plausible conclusion that in this case, like in most others, Congress's judgment about military regulation must be deferred to.

3. Equal Protection: The court rejected the Equal Protection Clause challenge on the grounds that, despite Lawrence, discrimination based on sexual orientation is subject only to rational basis scrutiny.

4. First Amendment: The court rejected by a 2-1 vote (District Judge Saris dissenting) the First Amendment challenge on the grounds that Don't Ask, Don't Tell basically uses speech as evidence of behavior, which doesn't generally pose serious First Amendment problems. "The Supreme Court has held that the First Amendment 'does not prohibit the evidentiary use of speech to establish' a claim 'or to prove motive or intent[,]' Wisconsin v. Mitchell, 508 U.S. 476, 489 (1993)," the court reasons, and the same applies when speech is used as evidence of likely future behavior. (I hope to blog more on that soon, since the speech-as-evidence question arises in lots of different contexts.) I should also note that even if the law were treated as an actual restriction of the speech rather than just the use of speech as evidence of likely conduct, it might well still be constitutional given the weak role that the First Amendment — like other constitutional rights — plays as to military personnel.

Ryan Waxx (mail):
For a long time now, the government has NOT been holding to the "Don't Ask" part of the deal. This is a welcome ruling.
6.9.2008 7:43pm
Perseus (mail):
Typo (or sic) in the second paragraph of the post: The First Circuit calls for "balanc[ing] the strength of the state's asserted interest ... against the degree of intrusion into [people's] private secual life."
6.9.2008 8:59pm