A Stitch in Haste

To review: Less than three weeks ago, a panel of the Ninth Circuit Court of Appeals sustained a challenge to Don't Ask, Don't Tell on the grounds that Lawrence v. Texas, 539 U.S. 558 (2003), imposes a substantive due process "heightened scrutiny" standard to government discrimination based on sexual orientation. Where there is heightened scrutiny, there is little or no deference to the legislature (or the military) and a discriminatory law is far more likely to be found unconstitutional.

Now comes word that a panel of the First Circuit has embraced essentially the same favorable standard:

Courts and commentators interpreting Lawrence diverge over the doctrinal approach employed to invalidate the petitioners' convictions. Some have read Lawrence to apply a rational basis approach. Others see the case as applying strict scrutiny. And a third group view the case as applying a balancing of state and individual interests that cannot be characterized as strict scrutiny or rational basis. Lawrence's doctrinal approach is "difficult to pin down." But we are persuaded that Lawrence did indeed recognize a protected liberty interest for adults to engage in private, consensual sexual intimacy and applied a balancing of constitutional interests that defies either the strict scrutiny or rational basis label.
...
Lawrence is, in our view, another in this line of Supreme Court authority that identifies a protected liberty interest and then applies a standard of review that lies between strict scrutiny and rational basis. [Footnotes and citations omitted.]

(The "line of Supreme Court authority" referenced is a series of cases applying heightened, but not strict, scrutiny outside the Griswold/Eisenstadt/Roe/Casey line of sexual privacy cases. See pages 26-28 of the opinion.)

The bad news is of course that the panel held that DADT in fact survives this "between strict scrutiny and rational basis" standard of review and is therefore constitutional.

So be it. But the very fact that the court embraced any level of heightened scrutiny is a victory (especially given a broad and deep tendency of courts to show almost absolute deference on military matters — cf., Rumsfeld v. FAIR). Losing the game is not as bad as having the rules stacked against you before you even play. So here we at least have some sweet to take with the bitter.

Meanwhile, thus far in 2008 we have seen:

• The Fifth Circuit extend Lawrence to commercial transactions.


• The Ninth Circuit explicitly hold that Lawrence requires heightened scrutiny based on sexual privacy precedent.


• The First Circuit do likewise based on liberty interest grounds apart from sexual privacy precedent.


• The California Supreme Court declare sexual orientation a suspect class for equal protection claims.

I think that's a pretty good trend.

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(The First Circuit was less kind to the discharged soldiers' equal protection and First Amendment claims, dismissing them entirely. One judge on the panel dissented only from the denial of the First Amendment claim but agreed with the panel's main holding.)

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The case is Cook v. Gates, No. 06-2313 (1st Cir., June 9, 2008) (PDF - 70 pages)