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.