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Tenth Circuit says Lawrence was a rational-basis case:

The past few weeks have provided more evidence of confusion and disagreement in the federal courts about the meaning and implications of Lawrence v. Texas, and specifically whether that decision recognized a fundamental right or merely applied a rational-basis test to the Texas sodomy law.

Today, in Seegmiller v. Laverkin City, a panel of the Tenth Circuit unanimously upheld a city's private oral reprimand of a police officer for an adulterous affair she had with another officer not in her department. The city concluded that the affair interfered with her duties as an officer. The officer then challenged the reprimand on state and federal tort and constitutional grounds citing, in part, Lawrence. The unanimous panel opinion held that Lawrence did not recognize a fundamental right to private adult sexual intimacy, but instead struck down state sodomy laws as irrational.

The Tenth Circuit parted company with (but did not cite) recent opinions by both the First Circuit, which applied a balancing test to a challenge to "Don't Ask, Don't Tell" yesterday based on Lawrence, and with the Ninth Circuit, which last month applied intermediate scrutiny to a DADT challenge based on Lawrence. In so doing, the Tenth Circuit repeated some of the arguments that other courts and Justice Scalia have made about the decision. Like other courts, the panel even cited Justice Scalia's dissent as an authoritative guide to the meaning of Justice Kennedy's majority opinion in Lawrence:

One of the Court's most recent opinions concerning substantive due process also counsels against finding a broad-based fundamental right to engage in private sexual conduct. In Lawrence v. Texas, 539 U.S. 558 (2003), the Court struck down a Texas law that criminalized homosexual sodomy. But nowhere in Lawrence does the Court describe the right at issue in that case as a fundamental right or a fundamental liberty interest. It instead applied rational basis review to the law and found it lacking. Lawrence, 539 U.S. at 578 (stating the Texas statute in question "furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual"); see also id. at 594 (Scalia, J., dissenting) (noting that majority applied "rational basis" test to overturn statute). As one recent decision aptly noted, the Court declined "to recognize a fundamental right to sexual privacy . . . where petitioners and amici expressly invited the [C]ourt to do so." Williams, 378 F.3d at 1236.

Nor did the Lawrence Court conclude that an even more general right to engage in private sexual conduct would be a fundamental right. See id.; see also Reliable Consultants, Inc. v. Earle, 517 F.3d 738, 745 n.32 (5th Cir. 2008) (explaining "Lawrence did not categorize the right to sexual privacy as a fundamental right"); Muth v. Frank, 412 F.3d 808, 817 (7th Cir. 2005) (holding "Lawrence . . . did not announce . . . a fundamental right, protected by the Constitution, for adults to engage in all manner of consensual sexual conduct"); Lofton v. Sec. of Dept. of Children and Family Servs., 358 F.3d 804, 817 (11th Cir. 2004) ("We conclude that it is a strained and ultimately incorrect reading of Lawrence to interpret it to announce a new fundamental right."). Indeed, as we noted above the Court resolved the constitutionality of Texas's sodomy law in Lawrence by applying the rational basis test, rather than heightened scrutiny. See Lawrence, 539 U.S. at 578.

Op. at 18-19.

For reasons both Eugene and I have given elsewhere (see posts here and here), I think these arguments about the meaning of Lawrence are unconvincing. The context in which the Lawrence court placed its discussion of the private sexual conduct at issue, linking the conduct to the Court's fundamental right to privacy, contraception, and abortion cases, indicates to me that the Court believed it was dealing with a fundamental right. As I argued in the Minnesota Law Review shortly after the decision, on rational basis review, the Texas sodomy law would probably have been upheld, foolish and demeaning as it was on policy grounds. So it seems to me that something more than rational-basis review was applied. Additionally, the Court's failure to mention a standard of scrutiny or to use talismanic words that fit neatly into the Court's earlier opinions, while frustrating to lower courts and to legislatures, is hardly unprecedented. But it has to be admitted that other interpretations of Lawrence are plausible, including the one the Tenth Circuit adopted today.

It may be that state and federal governments, in their capacity as managers of large numbers of employees, should be given considerable leeway in making employment decisions related to work performance. Perhaps Lawrence should be largely limited to protecting from state law infrigement the private sexual lives of private citizens. Perhaps, as in other constitutional contexts, the government should be free to limit its own employees' behavior in ways that would be unacceptable if applied to a private citizen. As with the military context in the recent challenges to DADT, the public employment context in the Tenth Circuit case may make Seegmiller special, requiring more-than-usual deference to state decisionmaking.

Those considerations aside, the Tenth Circuit opinion adds to the need for some guidance from the Supreme Court. This isn't news to most of us who've struggled to understand Justice Kennedy's opinion, but it is now clear that nothing about Lawrence is clear. One group of courts believes that Lawrence was a rational-basis case; another group believes Lawrence was somewhere between rational basis and strict scrutiny; and a few courts and some commentators suggest it was a fundamental-right case. There is a real and growing circuit split on this basic doctrinal issue with potential consequences to a range of governmental policies. Whatever one thinks of the result in Lawrence, the Supreme Court has created a mess that only it will be able to clean up.

(Thanks to reader Elliot Scott for pointing me to the decision.)

wooga:
I thought the deliberate avoidance by Lawrence of a rational basis test was extremely obvious. I would have preferred they had used a rational basis test, but, as Dale notes, it took something 'extra' to strike down that law.

It just seems to me that the 10th Circuit is bending over backwards to avoid admitting the full strength of Lawrence, because they don't like the natural ramifications of Lawrence. Well too bad, I say to the 10th. Bad cases make bad law.
6.10.2008 7:26pm
J. Aldridge:
Can laws to protect public morality exist under the fiction of substantive due process? John Bingham had said there was no more of a vital obligation upon state legislatures than to protect public morality through law. Yet federal jurists occupy a great deal of their time in preventing such laws.
6.10.2008 8:10pm
Justin Levine:
Further proof that Kennedy remains the worst justice by a long shot. His legal rationalizations and contortions in order to come to the political outcome he personally prefers offers no guidance or sustaining principle for courts to follow. Same holds true for his decisions regarding abortion, his Kelo concurrence regarding government takings, his ad hoc case-by-case approach to Establishment Clause cases, etc. It is far better simply to have liberal judges who create rational principles that everyone can follow (even if those principles are not found anywhere in the law or the Constitution).

Jeffery Rosen nailed it when he wrote his eye-raising article "The Arrogance of Justice Kennedy". Well worth another read.
6.10.2008 8:20pm
David M. Nieporent (www):
I thought the deliberate avoidance by Lawrence of a rational basis test was extremely obvious. I would have preferred they had used a rational basis test, but, as Dale notes, it took something 'extra' to strike down that law.
Well, they could have just adopted O'Connor's equal protection argument.
6.10.2008 9:04pm
Clayton E. Cramer (mail) (www):

Well, they could have just adopted O'Connor's equal protection argument.
Or they could have looked at the state of the law when the 14th Amendment was ratified--and seen that regulating sexual behavior even in private was considered a legitimate police power of the states--and let Justice Thomas write the opinion, which properly called it a very silly, but constitutional law.

But why bother to follow original meaning when you can override the legislature whenever you feel like it?
6.10.2008 9:58pm
BobDoyle (mail):
Clayton nails it!
6.10.2008 10:30pm
E:
Justin Levine, why blame Kennedy when four justices joined his opinion in full force?
6.10.2008 10:50pm
Steve2:
Clayton, I think the main reason not to bother with original meaning is that it's the province of the past, and thus of the dead and irrelevant.
6.10.2008 11:24pm
J. Aldridge:
Steve2: By your broken line of reasoning, the entire Constitution, being in the province of the past, is also dead and irrelevant, which I'm sure makes liberally programmed jurists very happy.
6.10.2008 11:37pm
Elliot Reed (mail):
The "heightened rationality" cases (Cleburne, Moreno, Allegheny Pittsburgh Coal Co., etc.) are all bizarre abberations. The actual rational basis standard is so forgiving that SCOTUS can't strike such laws down using the permissible techniques of rational basis analysis, so they have to look to forbidden methods such as looking to the actual purpose of the law or examining the actual degree of connection between the law and its hypothetical legitimate purpose. And yet they don't acknowledge that they're using a heightened standard of review rather than the rational basis "test".

I don't think there's a fact of the matter about whether Lawrence was a heightened rationality case or a heightened scrutiny case. If SCOTUS wants to use heightened scrutiny in later cases, Lawrence will be "revealed" to have been a heightened scrutiny case all along, just as Reed v. Reed and Eisenstadt v. Baird were later found to have been heightened scrutiny cases despite not actually saying anything about heightened scrutiny. If SCOTUS doesn't want to use heightened scrutiny in later cases, Lawrence will be found to have been a rational basis case from the start.
6.11.2008 1:33am
Tony Tutins (mail):
As I recall, it seemed to me that Scalia's dissent tries to force the majority to fit Lawrence into the review standard format, almost taunting them in the attempt to lure them out into the open. By not declaring homosexual sodomy to be a fundamental right, they let their adversary define their game. By being classified as irrational under rational basis review the decision fits into the Romer standard for laws impinging on the rights of gays.
6.11.2008 3:56am
A.W. (mail):
My, what the Supremes have wrought. Most rational people would say "of course the police can make sure that its officers are not in affairs, given that it can cause people with guns to do crazy things--and if you don't like it, you don't have to be a cop."

But now these days rights advocates basically think that the right is infringed unless you get to keep your state-run job, too.

Thank God the 10th Circuit said "no" to that nonsense.
6.11.2008 9:00am
Just Dropping By (mail):
I'll offer the observation that Tymkovich (who wrote the opinion) is usually considered one of the best judges on the 10th Circuit.
6.11.2008 11:05am
Warrior:
Further proof that Lawrence was worse than Roe (as bad as Roe was.) In fact, I'll go on record to say that there is not a single more destructive, absurd and nonsensical decision in the history of the Court.

Scalia's dissent has been proven right time and time again.
6.11.2008 11:22am
CJColucci:
I don't think there's a fact of the matter about whether Lawrence was a heightened rationality case or a heightened scrutiny case. If SCOTUS wants to use heightened scrutiny in later cases, Lawrence will be "revealed" to have been a heightened scrutiny case all along, just as Reed v. Reed and Eisenstadt v. Baird were later found to have been heightened scrutiny cases despite not actually saying anything about heightened scrutiny. If SCOTUS doesn't want to use heightened scrutiny in later cases, Lawrence will be found to have been a rational basis case from the start.

Elliot, that makes too much sense. But then again, isn't that the sort of thing we were supposed to learn in our first semester of law school?
6.11.2008 11:41am
Randy R. (mail):
Warrior:" Scalia's dissent has been proven right time and time again."

Yes, especially that part that states that soon mastubation will be legal.

Ah, those horrible culture wars.....
6.11.2008 12:15pm
Cold Warrior:
Whether pronounced as a rational basis test or not, it seems clear to me that the State of Texas could not provide any rational basis for the statute at issue in Lawrence: one that prohibited a particular kind of same-sex consensual behavior, but not the very same kind of opposite-sex consensual behavior.

That is as far as we need to take Lawrence.

The situation in the 10th Cir. case is obviously different. Note, as a starting point, that the personnel action was not in any way based on a distinction between hetero vs. homosexual conduct. And note, too, that the law enforcement agency in question certainly has an interest in morale and (borrowing from the military cases) unit cohesion.

No rational basis in Lawrence; obvious rational basis here. Did Lawrence require more? It certainly never expressly stated a more stringent test, so why wouldn't we assume that since the case could have been decided on rational basis grounds, that is in fact how it was decided?
6.11.2008 12:17pm
Sk (mail):
One nice thing about our current judicial and legal philosophy. In the name of forcing the country to agree with them, the judiciary, under the guise of pretending to be making legal arguments, is making what are, in essence, libertarian arguments. No Supreme Court can come out and say 'you have to agree with us on homosexuality, because we are morally better than you.' So, they say, 'the State can't regulate X (and X is related to homosexuality, so homosexuality can't be regulated either).' The result, of course, is that X is thereby removed from State regulation. And the more X's there are, the more libertarian, in effect(even if not in belief) the country becomes.

This is one reason why, after all, the government should get out of the marriage business (and return marriage to a privately-chosen religious choice). Not because it makes any sense from a democratic perspective (in a democracy, the citizens should be the ones that determine the structure of their society).
Rather, as long as the judiciary is going to be autocratic, we should remove important decisions from their purview. Let them be autocrats over trivia. Once important decisions are no longer the business of the State, the judiciary can't force us to agree with them with regard to those important decisions.

Sk
6.11.2008 2:43pm
ReaderY:
If one asks whether Justice Kennedy considers a law rational one gets different answers from asking the same question about any other Justice (or anyone else, for that matter). So it's completely natural that when rational basis review comes to refer to nothing more than whether a particular Justice happens to think a law rational, the results end up being arbitrary, even capricious.
6.11.2008 9:13pm