A Stitch in Haste

A major victory and a minor defeat.

ITEM: A panel of the Ninth Circuit Court of Appeals has held that the military's "Don't Ask, Don't Tell" policy must be subjected to a form of heightened scrutiny under substantive due process, generally analogous to the "intermediate scrutiny" applied to equal protection challenges of gender-based discrimination:

We cannot reconcile what the Supreme Court did in Lawrence with the minimal protections afforded by traditional rational basis review. First, the Court overruled Bowers, an earlier case in which the Court had upheld a Georgia sodomy law under rational basis review. If the Court was undertaking rational basis review, then Bowers must have been wrong because it failed under that standard[.] But the Court's criticism of Bowers had nothing to do with the basis for the law; instead, the Court rejected Bowers because of the "Court's own failure to appreciate the extent of the liberty at stake."

The court went on to extrapolate that if Lawrence follows from Griswold, Roe, and Carey, and if those cases all applied heightened scrutiny, then how can Lawrence also not be interpreted to require heightened scrutiny?

Note that the court did not "overturn" DADT, but only told the military that it must show that the policy must: (1) be necessary (2) to significantly further (3) an important government interest. Assuming no en banc rehearing, the litigation now goes back to the trial court to give the government an opportunity to make such a showing.

As I observed in reviewing the California gay marriage ruling:

Long before gay marriage specifically was on anyone's radar screen, the "Holy Grail" of gay rights litigation had been simply to get courts to afford gays the same kind of protection that women had been granted — "intermediate scrutiny."

Putting aside the distinction between substantive due process and equal protection, just the reasoning behind the case — that sexual discrimination discrimination faces a higher hurdle than mere rational basis review — is a all-important achievement. Regardless of how this case plays out, if that analytical paradigm remain precedential, then it would constitute a huge victory for gay rights. Stay tuned. Witt v. Air Force, No.06-35644 (9th Cir., May 21, 2008) (PDF - 36 pages) (Background on Major Margaret Witt's exemplary military career as an Air Force nurse, and the dubious DADT case against her, here.)

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ITEM: In Oregon, meanwhile, a modest defeat:

The Oregon Court of Appeals on Wednesday upheld the ban on gay marriage that state voters approved by a wide margin in 2004.

The court rejected two procedural arguments that attacked the scope of the initiative, Measure 36, and whether it should have been placed on the ballot.

There are two ways to change the Oregon Constitution: by initiative, which allows citizens to propose discreet changes; and by revision, which allows the Legislature to propose sweeping changes. Gay-rights advocates argued that Measure 36 was a revision because it fundamentally altered the constitution.
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Gay-rights advocates promised to appeal to the Oregon Supreme Court.

It seems a bit silly to distinguish between "amendments" and "revisions" in this way. I suppose the very first Oregonians were trying to be clever by imagining an analogue to the federal constitutional "amendment versus convention" system. Note also that under a robust "Republican form of government" jurisprudence (which we do not have), the kind of constitutionalized discrimination that these bigot amendments represent would be summarily void anyway — see also Romer v. Evans. Finally, note that the Oregon bigot amendment was the short form and not a sweeping "no nothing never" version that more rabid bigots have sponsored (e.g., successfully in Michigan and unsuccessfully in Arizona). So that's something to keep our chins up about. Martinez v. Kulongoski, No. 05C11023 (Ct. App. Ore., May 21, 2008)

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Cases Cited:

Bowers v. Hardwick, 478 U.S. 186 (1986)
Carey v. Population Services Intl., 431 U.S. 678 (1977)
Griswold v. Connecticut, 381 U.S. 479 (1965)
Lawrence v. Texas, 539 U.S. 558 (2003)
Roe v. Wade, 410 U.S. 113 (1973)
Romer v. Evans, 517 U.S. 620 (1996)