The Volokh Conspiracy - Ninth Circuit denies <i>en banc</i> review of DADT case:

Last May a panel of the Ninth Circuit called into question the constitutionality of "Don't Ask, Don't Tell," the federal law under which the military discharges personnel known to be gay. The panel did not actually hold DADT unconstitutional but announced a heightened scrutiny standard applicable to the policy based on the Supreme Court's decision in Lawrence v. Texas. It then remanded the case to the district court for further fact-finding to determine whether the policy could survive the heightened scrutiny. Orin, Eugene, and I offered some thoughts about the decision in a series of posts at the time.

Now the Ninth Circuit has refused to hear the case en banc, with six judges dissenting. In his dissent, Judge O'Scannlain emphasized the narrow context and reach of Lawrence. Judge Kleinfeld, in a separate dissent, emphasized the traditional deference due to Congress and the President in military matters. Finally, Judge Kozinski pronounced himself agnostic on the merits but believed the case was important enough that it should be heard by the full court.

The question now, as back in May, is what happens next. At this point, the case would go back to the district court for factual development and final decision on the merits. Alternatively, the Supreme Court could accept review of the case if the Bush and/or Obama administration decide to press it.

Left to its own devices, I doubt the Obama administration would pursue the case at this point, but would prefer to preserve its options -- political and legal -- for the future. Obama himself opposes DADT and might like to see it held unconstitutional, but I'm guessing he'd rather not have the issue take center-stage via a showdown in the Supreme Court in the immediate future. I also doubt the current court would hold DADT unconstitutional, and a ruling in favor of it might actually politically entrench it for a few more years. Others have also expressed doubts about the Obama Justice Department pushing the case to the Supreme Court.

On the other hand, if the Bush administration decided to file a cert petition the Obama DOJ would be put in the difficult position of having either to defend the constitutionality of a policy the President opposes on the merits or withdrawing the petition in the early weeks of his presidency. The latter course would also present public-relations problems reminiscent of the early days of the Clinton administration. But withdrawing a cert petition might not be as politically risky as it seems because the Ninth Circuit hasn't actually held that DADT is unconstitutional.

Indeed, some factual development in the district court showing the weaknesses, inconsistencies, and harm caused by the policy might be helpful in laying the groundwork for a legislative repeal of DADT in Congress before the Supreme Court ever has a chance to hear the case -- years down the road. Additionally, Obama will need time to establish his bona fides as a tough Commander-in-Chief -- for example, by bombing a country or two, or by supporting the limited use of "enhanced interrogation" techniques or broader domestic surveillance, or by delaying his 16-month timetable for Iraq withdrawal -- before he can push legislatively for what will be a controversial change. He will need the acquiescence if not the support of the Joint Chiefs of Staff for such a change and he won't get that until he establishes some credibility with them. The Ninth Circuit's decision to kick the can back to the district court, rather than address it with the weight of the full court, may buy some needed time.

	[Dale Carpenter, December 5, 2008 at 12:42pm] Trackbacks Ninth Circuit denies en banc review of DADT case: Last May a panel of the Ninth Circuit called into question the constitutionality of "Don't Ask, Don't Tell," the federal law under which the military discharges personnel known to be gay. The panel did not actually hold DADT unconstitutional but announced a heightened scrutiny standard applicable to the policy based on the Supreme Court's decision in Lawrence v. Texas. It then remanded the case to the district court for further fact-finding to determine whether the policy could survive the heightened scrutiny. Orin, Eugene, and I offered some thoughts about the decision in a series of posts at the time. Now the Ninth Circuit has refused to hear the case en banc, with six judges dissenting. In his dissent, Judge O'Scannlain emphasized the narrow context and reach of Lawrence. Judge Kleinfeld, in a separate dissent, emphasized the traditional deference due to Congress and the President in military matters. Finally, Judge Kozinski pronounced himself agnostic on the merits but believed the case was important enough that it should be heard by the full court. The question now, as back in May, is what happens next. At this point, the case would go back to the district court for factual development and final decision on the merits. Alternatively, the Supreme Court could accept review of the case if the Bush and/or Obama administration decide to press it. Left to its own devices, I doubt the Obama administration would pursue the case at this point, but would prefer to preserve its options -- political and legal -- for the future. Obama himself opposes DADT and might like to see it held unconstitutional, but I'm guessing he'd rather not have the issue take center-stage via a showdown in the Supreme Court in the immediate future. I also doubt the current court would hold DADT unconstitutional, and a ruling in favor of it might actually politically entrench it for a few more years. Others have also expressed doubts about the Obama Justice Department pushing the case to the Supreme Court. On the other hand, if the Bush administration decided to file a cert petition the Obama DOJ would be put in the difficult position of having either to defend the constitutionality of a policy the President opposes on the merits or withdrawing the petition in the early weeks of his presidency. The latter course would also present public-relations problems reminiscent of the early days of the Clinton administration. But withdrawing a cert petition might not be as politically risky as it seems because the Ninth Circuit hasn't actually held that DADT is unconstitutional. Indeed, some factual development in the district court showing the weaknesses, inconsistencies, and harm caused by the policy might be helpful in laying the groundwork for a legislative repeal of DADT in Congress before the Supreme Court ever has a chance to hear the case -- years down the road. Additionally, Obama will need time to establish his bona fides as a tough Commander-in-Chief -- for example, by bombing a country or two, or by supporting the limited use of "enhanced interrogation" techniques or broader domestic surveillance, or by delaying his 16-month timetable for Iraq withdrawal -- before he can push legislatively for what will be a controversial change. He will need the acquiescence if not the support of the Joint Chiefs of Staff for such a change and he won't get that until he establishes some credibility with them. The Ninth Circuit's decision to kick the can back to the district court, rather than address it with the weight of the full court, may buy some needed time.