Ninth Circuit Revives Substantive Due Process Challenge to "Don't Ask, Don't Tell" Policy: The Ninth Circuit handed down a decision today concluding that the military's "Don't Ask, Don't Tell" policy should be subject to heightened scrutiny under Lawrence v. Texas. The new decision is Witt v. Department of the Air Force. The majority opinion was by Judge Gould joined by Judge Graber; Judge Canby concurred in part and dissented in part on the ground that the majority did not go far enough.

  From the opinion:
In previous cases, we have applied rational basis review to DADT and predecessor policies. See, e.g., Holmes, 124 F.3d at 1136; Philips, 106 F.3d at 1425-26. However, Major Witt argues that Lawrence effectively overruled those cases by establishing a fundamental right to engage in adult consensual sexual acts. The Air Force disagrees. Having carefully considered Lawrence and the arguments of the parties, we hold that Lawrence requires something more than traditional rational basis review and that remand is therefore appropriate.
  Specifically, the panel considers Lawrence and concludes that it's not persuasive as an application of rational basis scrutiny. But Lawrence doesn't say what kind of heightened scrutiny it is applying — or even whether it is applying heightened scrutiny — so the panel must determine what type of heightened scrutiny is appropriate.

  The panel ends up adopting a modified-intermediate scrutiny standard that it finds in a case involving forcing a defendant to take medication to be competent in a criminal trial, Sell v. United States, 539 U.S. 166 (2003). The panel then concludes that it doesn't have enough facts to know if the "Don't Ask, Don't Tell Policy" is consistent with Substantive Due Process under the specific forced medication standard from Sell, so it remands for more factfinding. (If you're missing the connection between gay rights and forcing a criminal defendant to take medication to be competent at trial, re-read the first two words of the title of this post.)

  Judge Canby concurred in part and dissented in part; he would have subjected the "Don't Ask, Don't Tell" policy to strict scrutiny.

  The obvious question is, will the Justice Department petition for certiorari, and if so, would the Court take it? This isn't my area and I haven't followed the cases, so I only have uninformed speculation. But I would think that the key difficulty from a cert perspective would be that the decision isn't final; the panel remanded for factfinding, and the court could still conclude that the policy is constitutional under the heightened scrutiny standard. So even if there is a "methodological split" on the degree of scrutiny for sexual orientation claims under Lawrence, it may not actually change outcomes in this situation. At the same time, the Court is always very attentive to cert petitions from the SG, and this is obviously a major issue of national importance. Thanks to How Appealing for the link.
Ninth Circuit Demands Heightened Scrutiny of "Don't Ask Don't Tell":

Orin summarized the opinion below; let me add a few thoughts:

1. Sexual Autonomy Rights: The panel's decision 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. I've long argued that this is how Lawrence must be read, but this creates a circuit split with an Eleventh Circuit decision holding that Lawrence only mandated rational basis scrutiny.

I also think this would bear on sexual autonomy matters that don't involve same-sex conduct -- for instance, restrictions on sex between dental hygienists and their ex-patients or even bans on incestuous sex between adults. Some such restrictions might still be upheld under heightened scrutiny, but it seems to me that under the Ninth Circuit's (correct) interpretation of Lawrence, they must face such scrutiny.

2. Special Standards for the Military? Yet even if the panel is right on its general interpretation of Lawrence, I was struck by its failure to consider that the sexual autonomy right -- like the right to free speech, or the Sherbert/Yoder-era right to free exercise of religion -- might demand a far lower standard of scrutiny in the military than outside it. "Our review of military regulations challenged on First Amendment grounds is far more deferential than constitutional review of similar laws or regulations designed for civilian society," the Court expressly held, rejecting the strict scrutiny standard for religious freedom claims.

Perhaps the panel contemplates that the special role of the military would be considered entirely within the heightened scrutiny framework that it applies (or within the strict scrutiny framework that Judge Canby would have applied). But this is not how the Court has treated free speech or free exercise rights; in those contexts, it has applied a far more deferential standard of review from the outset. I would have expected some explanation of why sexual autonomy rights should be treated better than those other rights.

3. Heightened Scrutiny: The Court has sometimes opined that burdens on fundamental rights (especially under substantive due process or the right to privacy) must be subject to strict scrutiny. Other commentators and judges have picked up on this.

But there's ample precedent for the Ninth Circuit's mixed intermediate-strict scrutiny test: As the Ninth Circuit pointed out, the substantive due process right to be free from unwanted medication is also judged under this test (which requires that a restriction be necessary to further an important government interest, rather than the strict scrutiny "necessary to further a compelling government interest" or the pure intermediate scrutiny "substantially related to an important government interest"). The court could also have pointed to the right to marry, which uses a similar formulation ("closely tailored to effectuate" "sufficiently important state interests"). And outside the substantive due process context, such a test is also used as to content-based restrictions on broadcast television and radio.

One could argue, for various reasons, that there should be no heightened scrutiny of sexual autonomy rights at all, that there should be no such scrutiny in the military context, that there should be strict scrutiny, or that having different standards of heightened scrutiny -- strict, intermediate, and mixed intermediate-strict -- requires subtle distinctions that courts can't practically (or even theoretically) apply. But the argument can't simply turn on the claim that, as a matter of precedent, strict scrutiny and the rational basis test are the only games in town.

4. Chances of Supreme Court Review: More on this in an upcoming post.

Prospects for Supreme Court Review in the Don't Ask, Don't Tell Case:


1. Circuit Split on Whether Burdens on Sexual Autonomy Rights Require Heightened Scrutiny: As I noted below, there's now a split on the subject between the Ninth and the Eleventh Circuits, and the question extends far beyond "Don't Ask, Don't Tell." (The Eleventh Circuit decision, for instance, upheld Florida's ban on adoption by homosexuals; that case might well come out differently under heightened scrutiny.) Such circuit splits are usually seen by the Court as counseling in favor of agreeing to hear the case.

On the other hand, it's only a 1:1 split now, as best I can tell, and this is the very sort of area where the Court might want to see more discussion by lower courts (as well as more similarity among the particular policies involved in the cases).

2. Interference with Federal Statute and Military Policy: A court's striking down a federal statute — or an important executive policy — is also often seen by the Court as counseling in favor of agreeing to hear the case.

Here, though, the Ninth Circuit didn't strike down "Don't Ask, Don't Tell," but just remanded to the trial court to consider arguments about whether the policy is indeed necessary to protect unit cohesion. This means there's no final judgment below, an important factor that has traditionally counseled against Supreme Court review, especially in state cases but also in federal cases like this one. It also means that the Court won't have much of a factual record on the necessary-to-protect-unit-cohesion issue; where there's some possibility that the factual record may be relevant, the absence of such a record at this stage might lead the Court to want to wait until the trial court finds the facts and the Ninth Circuit then gets another change to review it. And the lack of a final decision means that the government can't easily argue that the Ninth Circuit decision is frustrating important military judgments — the government hasn't been enjoined from implementing the "Don't Ask, Don't Tell" policy.

3. The Solicitor General's Decisions: Of course, the Court is sure not to grant certiorari until the government asks for it. The government will likely choose to ask the Ninth Circuit to rehear the case en banc first; an 11-judge en banc panel may well reverse the panel decision. The Ninth Circuit is on balance considerably less liberal than this particular panel; it has 11 Reagan/Bush Sr./Bush Jr. appointees among its active judges (including Chief Judge Kozinski, who is guaranteed to be on any en banc panels), and 16 Carter/Clinton appointees. A majority-Republican en banc panel is still unlikely given this distribution, but the en banc panel is likely to be more conservative than the 3-judge panel in this case (two Clinton judges and a senior judge appointed by Carter).

If the Ninth Circuit refuses to take the case en banc, or takes it but affirms the panel decision, then I suspect that the current Administration — or a McCain Administration — would petition for certiorari right away, rather than going on to a trial (though that's not certain). On the other hand, en banc review might put the decision off until after the election, and a possible Obama (or long-shot Clinton) victory. At that point, it seems likely that a Democratic Administration would at least wait until after the trial and subsequent appeals.

Lawrence and the Ninth Circuit opinion:

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.

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.

Don't Ask, Don't Tell Cases and Government Employees:

As Paul Secunda (Workplace Prof Blog) points out, the First and Ninth Circuit's have an important effect beyond "Don't Ask, Don't Tell": Because they hold that Lawrence v. Texas recognizes a right to sexual autonomy (subject to a balancing test), they mean that government employers' discrimination against gays, lesbians, people engaged in premarital sex, and possibly even adulterers (though that's not clear) would also be subject to constitutional challenge.

The government may be able to justify such discrimination, if it can show that the employee's or applicant's sexual activity seemed likely to sufficiently interfere with the government employer's operations. (After all, such restrictions are allowed even as to expressly secured rights, such as the freedom of speech.) But it would now have to justify such discrimination -- at least in the First and Ninth Circuits -- rather than having a free hand to discriminate based on sexual conduct.

First Circuit upholds DADT:

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.

What Next for Don't Ask, Don't Tell?

Recall that last month, the Ninth Circuit parted from several other federal courts, and held that Don't Ask, Don't Tell might be unconstitutional. It then concluded that the case should be remanded to the district court, "to develop the [factual] record" as to whether Don't Ask, Don't Tell "significantly furthers the government's interest [in 'unit cohesion' and the like] and whether less intrusive means would achieve substantially the government's interest."

It wasn't clear, though, that -- even if the Ninth Circuit refused to rehear the case en banc -- either the government or the challengers would ask the Supreme Court to hear the case (the government asking for Don't Ask, Don't Tell to be upheld even without further district court hearings, and the challengers asking that it be invalidated even without further district court hearings). Nor is it clear that the Supreme Court would agree to hear the case even if it was asked to do so, given that the case had been remanded to the trial court. The Supreme Court tells to be reluctant to consider lower court cases, even federal court cases, when there's no final judgment below, though that's not a categorical rule.

The First Circuit decision may affect this analysis, but it's not clear. (I assume for purposes of this discussion that the First Circuit refuses to rehear the case en banc.) The challengers will be free to petition for certiorari, and there is a final decision here, so that procedural obstacle isn't present here the way it is in the Ninth Circuit. What's more, there is a circuit split -- several circuits have upheld Don't Ask, Don't Tell, but the Ninth Circuit adopted different reasoning that has led to a different intermediate result (remanding to the district court instead of upholding the policy).

On the other hand, the split is "soft," in that the bottom line even in the Ninth Circuit may end up being the same as in the other circuits. And the factfinding in district court on remand from the Ninth Circuit may well illuminate the issue, so that there might be good reason for the Court to wait.

The most important factor here, I think, will be whether the Administration files a brief in support of the certiorari petition, arguing that the Court should hear the case, though of course they would want the Court to affirm rather than reverse. If the Administration so argues, perhaps on the grounds that the government shouldn't be burdened with defending the case further in the Ninth Circuit (and perhaps based on the unstated concern that the longer it takes for the issue to reach the Court, the more likely it will be that the Court's personnel will change in a way that favors the challengers), then I expect the Court will be inclined to agree. The Executive Branch's views on whether to grant certiorari in a case are generally quite influential.

On the other hand, if the Administration argues that the Court should wait until after the factfinding in district court on remand from the Ninth Circuit is done, and the Ninth Circuit has another chance to review the case, then the Court would likely deny certiorari and leave the matter for a later day. That, at least, is my tentative sense of the matter.