pageok
pageok
pageok
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.

Dilan Esper (mail) (www):
On point 2, Rokster v. Goldberg also supports Professor Volokh's argument. (Korematsu v. US does too, but I wouldn't cite that one.)

I really think that in the end, deference to the military is going to decide the constitutionality of this issue, one way or the other. If the courts believe that the military's rationale for banning gays is asserted in good faith, they are going to defer to it even if they are skeptical about it. If the courts think the asserted basis is a cover for anti-gay animus, they are going to strike it down.
5.21.2008 4:39pm
Bart (mail):
I cannot much fault the Ninth Circuit for drawing the obvious conclusion from the mushy Kennedy opinion in Lawrence applying heightened scrutiny disguised in rational relationship clothing.

How Kennedy deals on appeal with having his bluff called should be interesting. It does not appear that he wants to extend heightened scrutiny on the basis of sexual orientation, but Kennedy needed to invent an heretofore unknown liberty interest in sodomy in order to reverse Bowers.
5.21.2008 5:21pm
Randy R. (mail):
Bart, please don't forget that Lawrence also struck down laws that banned sodomy between consenting heterosexual people as well.

And since the legal definition of sodomy is both oral and anal intercourse, I'd say there are darn few couples in this country who have not engaged in sodomy, regardless of their sexual orientation.

Many, many couples in this country, both gay AND straight, breathed a sigh of relief that the sex police can't throw them in jail for doing what comes naturally.
5.21.2008 7:22pm
Bart (mail):
Randy:

Bart, please don't forget that Lawrence also struck down laws that banned sodomy between consenting heterosexual people as well.

We are not arguing whether or not laws criminalizing sodomy are good policy. This libertarian thinks they are not. I cannot think of a greater waste of time and resources.

What we are discussing is whether the Constitution provides a right to engage in sodomy. The text obviously does not and a right to sodomy is hardly well established in history like say marriage.

Kennedy invented this "right" out of whole cloth the same way Blackmun invented a "right" to abortion. Now, Kennedy is being called on the contradictions of his legal fiction.
5.21.2008 8:16pm
Gaius Obvious (mail):
'rational basis test'
'mandated rational basis scrutiny'
'strict scrutiny'
'heightened scrutiny'
'strict heightened scrutiny'
'intermediate heightened scrutiny'
'mixed intermediate-strict heightened scrutiny'

With all these subtle variations, you are getting dangerously close to a type of debate wherein you are debating the numbers of angels that would fit on the head of a pin.
5.21.2008 9:36pm
JohnO (mail):
Eugene:

On point 2, here's what I postred in Orin's thread:

The majority gives little attention to the military context in which this case arises. And that might be okay, or it might be a major error. In Rostker v. Goldberg, the majority observed that sometimes the Court implements the military deference doctrine, where applicable, by considering the military nature of the challenged regulation at the outset, in establishing the relevant test (a good example is Parker v. Levy). Other times, the Court accounts for the military nature of the regulation on the back end, by taking an established test from a non-military context and applying it more leniently to account for the military context before it. Hopefully, the district court will recognize that the 9th Circuit essentially adopted the test announced in Lawrence -- a non-military case -- and that consequently the district court must account for Congress's greater freedom to regulate the military by applying the 9th Circuit's test in a more lenient way than it was applied in Lawrence.

------------

Like Dilan Esper, I think the military context will decide this one in the end, much more so than wrangling over the correct test.
5.21.2008 10:16pm
Clayton E. Cramer (mail) (www):

Bart, please don't forget that Lawrence also struck down laws that banned sodomy between consenting heterosexual people as well.
Keep in mind that the big objection that most people have to Lawrence wasn't that it repealed a largely symbolic and seldom enforced law, but that it destroyed all pretense of following the Constitution. Few people* want laws that tell consenting adults what they can do in private. But the Court just made up the claims in Lawrence about laws against homosexual behavior being of recent origin.

*One group that really does want laws telling consenting adults what they can do in private are homosexuals. Hence, their enthusiasm for laws requiring photographers to photograph same-sex commitment ceremonies, laws requiring print shop owners to print same-sex wedding announcements, and all the rest of the fiercely antilibertarian crap that is the homosexual movement.
5.21.2008 10:17pm
Clayton E. Cramer (mail) (www):

Many, many couples in this country, both gay AND straight, breathed a sigh of relief that the sex police can't throw them in jail for doing what comes naturally.
They might have, but they might well have breathed a sigh of relief that the aliens didn't abduct them last night and do anal problems.

The remaining laws prohibiting non-vaginal intercourse were almost never enforced--and most of the time that they came up, it was either someone having sex in public view, or a weird situation such as brought Bowers and Lawrence before the Court.

There are no telescreens in bedrooms. How, exactly, did police have enough evidence to charge anyone with violations of these laws except as a result of homosexuals doing it in public restrooms?
5.21.2008 10:20pm
Randy R. (mail):
Bart: "What we are discussing is whether the Constitution provides a right to engage in sodomy. The text obviously does not and a right to sodomy is hardly well established in history like say marriage. "

The constitution enumerates few actual rights. Does that mean that we have only the rights that are enumerated in the constitution? No, of course not. That' s because the constitution is a limitation upon the gov't, not the people. So in other words, where the constitution is silent, those are implicit rights of the people.

Sodomy is very much a part of married life. Perhaps not every couple's married life, but most. Virtually all couples engage in some form of oral or anal sex play.

Take it another way -- is kissing a right in the constitution? Certainly not. But it's not prohibited either. And it's certainly an essential element to any married couple. To pass a law against kissing, or some form of kissing, like open mouth, or kissing of certain people, would certainly violate the constitution. Or at the least, I would think few people would stand for it.

Clayton: "How, exactly, did police have enough evidence to charge anyone with violations of these laws except as a result of homosexuals doing it in public restrooms?"

Well, first off, you can't have a case without a controversy. And that's exactly what happened in Lawrence -- the police arrested two men that they observed having sex. You only need a few instances of that happening to instill the fear of the police on any gay behavior at all.

Secondly , these laws were used against gay people all the time. In child custody cases, gays were assumed to be criminals, and therefore unworthy of having custody. A woman in Virginia was to be appointed as a state judge, but she was successfully struck, since as a lesbian, it was assumed she would violate the law, and so you can't have a judge who continually violates the law. Several shareholders started shareholder initiatives to prevent corporations from offering domestic partnership benefits on the grounds that such activity is illegal in many states, and a corporation shouldn't support illegal activity. A lesbian was hired as a DA in Alabama, and when the DA found out she was a lesbian, fired her since she would be in violation of state law. When Queer as Folk was initially broadcast on cable, people tried to block it because he showed gay men having sex, which is against the law in some parts of the country, and you shouldn't have a tv show centered around illegal sexual activity.

So it isn't so much that the law was enforced, but rathter that the law was used by ant-gay groups as another weapon against gays in various instances.
5.21.2008 10:57pm