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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.

Tyrant King Porn Dragon (mail):

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.

Question: your language implies that, prior to these new decisions, discrimination against gays and lesbians in civilian government service was (and, until the precedent is set, still is) legal and constitutional. Is that, in fact, the case? If not, it seems that these DADT cases do little to alter the status quo ante.
6.9.2008 6:31pm
Eugene Volokh (www):
Tyrant King Porn Dragon: Many states, and the federal government, don't have laws banning sexual orientation discrimination in employment, including public employment. And while some courts have accepted arguments that certain kinds of sexual orientation discrimination violate even the rational basis test, that test is quite easy to satisfy (as the First Circuit pointed out). So my sense is that the First and Ninth Circuit's decisions do make it considerably harder for government employers to discriminate based on sexual orientation or sexual conduct.
6.9.2008 6:38pm
Duncan Frissell (mail):
I think it's pretty easy to establish that fornicators, sodomites, and adulterers, like the former governors of New York and New Jersey, have trouble performing their jobs. After all they quit thus admitting the supposition. If it didn't prevent their performance, they wouldn't have quit.

Such behavior takes a lot of time and is distracting to employees. They, no doubt, find it hard to concentrate on their jobs. Also, deviation in one area of life likely leads to deviation in other areas of life. There's quite a bit of evidence from the GSS that married heterosexual couples with children who remain sexually faithful have lower rates, of drug use, crime, suicide, and longer lifespans than fornicaters, sodomites, and adulterers.

Important for an employer who wants a long-term employees who can show up to work Fridays and Mondays.
6.9.2008 9:44pm
JosephSlater (mail):
Duncan F.:

Have any specific evidence that gays and lesbians -- leave out the other groups -- have trouble performing their jobs? Because of course an adulterer in a high-profile public position is rather different. Why, for example, would it take more time or be more distracting to have gay/lesbian sex than to have heterosexual sex?

Fortunately, DF's absurd bigotry is rightly being swept into the dustbin of history. A good decision by the court.
6.10.2008 11:14am
AngelSong (mail):

Why, for example, would it take more time or be more distracting to have gay/lesbian sex than to have heterosexual sex?

So many splendid responses that could be made...
6.10.2008 1:19pm
darelf:
I'm still confused about the post I can't comment on, about the balancing act.

There is an answer to his question that is just out of my reach, but my intuition tells me is fairly straightforward.

I guess I don't get why balancing your right against the government's "right" is so... outrageous? Too difficult? It seems fairly obvious to say that since there are two parties with opposing interests and rights to those interests, that some kind of balancing has to be done.

I think deference is an interesting question, but I had always imagined that military rules such as this were fairly undiscriminating. That is to say, the military has quite a few things that are banned, including many kinds of sexual activity ( of all orientations ). It would seem to me that would be the looming difficulty in proving that the rules were discriminating against your group specifically.
6.10.2008 1:41pm
zippypinhead:
One area where personal intimate conduct otherwise protected by Lawrence might be relevant in public civilian employment is in the security clearance arena. While I don't pretend to be an expert on the standards for granting or denying a National Security clearance, my general understanding is that nowadays a focus in the clearance process is on whether there are undisclosed conduct issues that might be blackmail fodder. My friends who are somewhat more expert in that subject tell me that if you're really "out of the closet" on the particular conduct, you're not generally going to be deemed a security risk.

Which, ironically, sounds to this pinhead a bit like a "do ask, do tell" policy...
6.10.2008 1:54pm