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)

Still cleaning out the aggregator --

ITEM: Britain abolishes an anti-lesbian rule for access to in vitro fertilization --

Single women and lesbian couples won landmark parental rights last night as MPs voted to remove the requirement that fertility clinics consider a child's need for a father.

The Human Fertilisation and Embryology Bill will replace the rule with a "need for supportive parenting" after opponents were defeated in two votes by unexpectedly wide margins.
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It will stop fertility clinics turning away lesbians and single women because their children will not have a father or male role model. While the current law does not block such therapy, it is sometimes used to justify refusals.

MY TAKE: The lie that "kids do best with a mom and dad" (which distorts as "anti-gay" studies comparing only stable and unstable heterosexual-parent homes, while ignoring substantial research showing no ill effects from being raised by committed gay parents) was, at least in part, the flawed basis for the gay marriage defeats in New York and Washington, but was soundly rejected by the California Supreme Court. Its debunking and elimination from public policy debates is a key victory.

ITEM: In the minus column --

San Diego County plans to comply with a state Supreme Court ruling that allows same-sex marriages but will not force employees to perform the ceremonies if they cite religious or moral objections.

County Assessor-Recorder-Clerk Greg Smith, whose office issues marriage licenses, said he has informed the roughly 115 employees deputized to conduct ceremonies to tell him if they object to same-sex marriages.

MY TAKE: Aside from the pesky fact that a government office is not a church (no matter how many Decalogues theocrats slap on the walls), one wonders why marriage bureaucrats should receive special bigot privileges relative to other government employees. We don't allow bigot police officers not to respond to 911 calls from gays, we don't allow bigot firefighters to opt out of responding to fires at properties owned by gays, we don't allow bigot public school nurses to refuse to treat gay students' bloody noses.

And before you leap to an "emergency care" exception: Would a bigot health inspector be allowed to refuse to audit gay restaurants? Would a bigot food handler in a government office building's cafeteria be allowed to refuse to serve a gay patron? Would a bigot janitor be accommodated in his preference not to mop the office floor of a gay bureaucrat? If there is a workable basis for allowing this and only this accommodation to this and only this group of bigoted public employees, then I cannot deduce it. (Via Religion Clause.)

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ITEM: Speaking of "cannot deduce it," Rick Santorum has, to quote one of my fellow bloggers, "slithered out of oblivion to offer us his unique brand of brainless blathering" --

When I wasn't ducking the epithets, I was being laughed at, mocked, and given the crazy-uncle-at-the-holidays treatment by the media. Or I was being told I should resign from my leadership post by some Senate colleagues.

Five years later, do I regret sounding the alarm about marriage? No.

I'm just saddened that time has proved right those of us who worried about the future of marriage as the union of husband and wife, deeply rooted not only in our traditions, our faiths, but in the facts of human nature: as Pope Benedict said, "The cradle of life and love," connecting mothers and fathers to their children.

(Cue epithets: Bigot! Hate-monger! Homophobe!)

MY TAKE: Cue epithets? Against Rick Santorum? Me? I wouldn't dare. I leave that sort of thing to the experts:


(Contains naughty language.)
Maybe I'm wrong. Maybe there are a group of non-bigoted, non-hate-mongering, non-homophobic anti-gay-marriage banditos. But Rick Santorum is not one of them.