Disagreeing with the recent Ninth Circuit decision applying intermediate scrutiny to the military's exclusion of gay personnel under "Don't Ask, Don't Tell," a 2-1 decision from the First Circuit today rejected a facial and as-applied challenge to DADT. The First Circuit's decision is available here. The court rejected due process, equal protection, and First Amendment challenges to the law (the dissent disagreed only on the First Amendment issue).

A critical question in the case was how to understand the effect of Lawrence v. Texas, the Supreme Court's notoriously opaque decision from 2003 striking down state sodomy laws under the Due Process Clause. Some commentators, like Eugene and me, have understood Lawrence to recognize a fundamental right of private adult sexual intimacy. Others, like Justice Scalia in his dissent in the case, believe the Court applied only rational-basis review. A third group of scholars, like Nan Hunter and Paul Secunda, think Lawrence broke with the usual bifurcated approach to substantive due-process rights and is charting a new course.

The First Circuit, citing Hunter's work, read Lawrence to protect a "liberty interest" for adults to engage in sexual intimacy that "defies either the strict scrutiny or rational basis label." Op. at 18. Thus, it rejected Justice Scalia's, and a number of courts', interpretations of Lawrence. But it also rejected the idea that strict scrutiny applies, as would be the case if the Supreme Court had recognized an old-fashioned fundamental right. Instead, the First Circuit concluded that Lawrence "balanced" the state's asserted interest "against the degree of intrusion into the petitioner's private sexual life." Id. at 28.

The right recognized in Lawrence, said the First Circuit, is only the "narrow" one to be free of intrusion into one's sexual life in the home and in one's private life. On the other hand, the government's interest, recognized by Congress when it adopted DADT as a federal statute, is of the highest order since it involves legislative judgments about military needs that receive substantial deference from courts. "Balancing" the relatively weak individual liberty interest of a service member against the relatively strong military interest of the state, the First Circuit concluded the government should prevail.

I'll bracket the question whether, under any standard of review, the federal courts should set aside Congress' conclusion about the need for DADT in the special context of the military. Instead, I'll focus on a different issue.

The First Circuit's decision, and to some extent the Ninth Circuit's less deferential decision on the same issue, illustrates how amorphous and unpredictable balancing approaches can be. Whatever the faults of the traditional bifurcated approach, it at least provides a degree of certainty about the outcome. By contrast, balancing approaches under which courts somehow determine the "strength" of the government's interest, the "strength" of the individual liberty interest, and then weigh the two against one another, leave us largely at sea.

I am not sure how courts are supposed to do any of this, and I have never read an explanation of how it's supposed to be done that doesn't make practically any result possible and defensible. There is no methodology in the First Circuit's opinion; there is simply opinion. The more we are left to guess the more room there is for judicial policy-making. The First Circuit's policy conclusion, decorated though it is in the language of deference, may be the right policy result or the wrong policy result, the right opinion or the wrong opinion. But it's impossible to say it's right or wrong under the balancing approach because that approach gives us no practical guidance, no evaluative tools. Judicial decisions involving spacious constitutional principles are already highly discretionary; balancing is discretion on stilts.

Consider how courts will likely use their enormous maneuvering room under balancing, especially given the composition of the federal bench. Since Lawrence, many federal courts have gutted the decision by giving it the narrowest possible rational-basis reading, meaning that Justice Scalia's dissenting opinion is effectively the controlling opinion in the case. Would gay-rights or other liberty advocates fare better under a balancing approach than they have under rational-basis review? The same courts, using the black-box analysis of balancing, will likely use the freedom such an approach provides them to reach the same result they would have reached under rational-basis review. That's what the First Circuit has done by calling the individual interest "narrow." Of course, advocates of the third-way approach to substantive due process rights could argue that the First Circuit got it wrong: that the liberty interest is not narrow or insubstantial. But is that the way courts are likely to understand their job when balancing the relevant interests? I think the First Circuit opinion, and many others post-Lawrence, suggest not.

On the other hand, a federal bench more favorably disposed toward gay rights could just as easily use the plasticity of balancing to reach the same results they would have reached under a traditional fundamental-rights/strict-scrutiny analysis.

In short, I do not see how a balancing approach helps us resolve any difficult or interesting issue. It simply kicks the can down the road, leading to ad hoc decisionmaking in the courts and confusion in the legislature about what kinds of laws it can and cannot adopt.

If Lawrence is to have any substantial bite beyond its immediate holding that sodomy laws are unconstitutional, the federal courts are going to need clear marching orders. Instead, what they got from the decision was poetry, and especially abstract poetry at that. Whether it comes under the title "rational basis" or "balancing," the last line of the poem is the same: liberty denied.

UPDATE: Eugene beat me to it on this one. I have shut off comments to avoid duplication. You can comment on his post about the decision, as well as mine, here.