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.
Related Posts (on one page):
- What Next for Don't Ask, Don't Tell?
- First Circuit upholds DADT:
- Don't Ask, Don't Tell Cases and Government Employees:
- First Circuit Demands Heightened Scrutiny of Restrictions on Homosexual Conduct, but Upholds "Don't Ask, Don't Tell" On Deference-to-Military Grounds:
- Lawrence and the Ninth Circuit opinion:
- Prospects for Supreme Court Review in the Don't Ask, Don't Tell Case:
- Ninth Circuit Demands Heightened Scrutiny of "Don't Ask Don't Tell":
- Ninth Circuit Revives Substantive Due Process Challenge to "Don't Ask, Don't Tell" Policy: