Ninth Circuit: "Don't Ask Don't Tell" may be unconstitutional

The Second Circuit has been quiet as a mouse lately on civil rights issues of any kind, so here's a taste of the Ninth Circuit, which held this week that the military's "Don't Ask Don't Tell" policy governing gays and lesbians is constitutionally suspect.

The case is Witt v. Department of the Air Force, decided on May 21. Witt is a lesbian who was suspended from the Air Force, where she worked as as reservist nurse, because of her sexual relationship with another woman. The Secretary of the Air Force recommended that Witt receive an honorable discharge. She brought this lawsuit challenging the constitutionality of the "Don't Ask Don't Tell" rules which "permits discharge of members of the armed forces on account of homosexual activity." She prevails in the Ninth Circuit which finds that her substantive due process claim has merit.

Substantive due process is a legal theory that allows people to sue the government over unfair or unconscionable decisionmaking. It's not easy to win these claims, as the courts are reluctant to identify rights that are not specifically outlined in the Constitution. Examples of the kind of "fundamental rights" that may predicate substantive due process claims are the rights to privacy, travel and child-rearing. So, what about homosexual activity?

A few years ago, the courts would have, and did, uphold the constitutionality of the "Don't Ask Don't Tell" rules because gays and lesbians did not have any heightened rights under the Constitution. The law was upheld under "rational basis" review, which generally means that the government can defend the law with any rational justification. Constitutional lawyers know that rational basis review will kill any lawsuit because the government can come up with any reason to support any law. For this reasons, lawyers try to convince the courts to apply "heightened scrutiny" in reviewing their substantive due process cases. Heightened scrutiny is less deferential to the government than rational basis review.

In 2003, the Supreme Court issued Lawrence v. Texas, 539 U.S. 558 (2003), ruling for the first time that the constitutional protects the fundamental right to engage in adult consensual sexual acts. Lawrence overruled a Supreme Court decision from 1986 which held otherwise in context of gay and lesbian sex. How does Lawrence affect lawsuits challenging "Don't Ask Don't Tell"? Does rational basis review still apply when the Supreme Court has now granted protections for homosexual relationships? The answer, according to the Ninth Circuit, is yes. Lawrence changes the landscape for cases involving gay and lesbian relationships. Here's the gist of what the Ninth Circuit did:

We hold that when the government attempts to intrude upon the personal and private lives of homosexuals, in a manner that implicates the rights identified in Lawrence, the government must advance an important governmental interest, the intrusion must significantly further that interest, and the intrusion must be necessary to further that interest. In other words, for the third factor, a less intrusive means must be unlikely to achieve substantially the government’s interest.

This is groundbreaking reasoning. Never before, to my knowledge, has a Federal court granted heightened protections because of sexual orientation. That protection previously applied for claims alleging racial, gender and religious discrimination.

The case will continue, as the government now has the opportunity to defend the "Don't Ask Don't Tell" law. But not just any reason will suffice this time around. The Court notes that "it is unclear on the record before us whether [Don't Ask Don't Tell], as applied to Major Witt, [is constitutional]. The Air Force attempts to justify the policy by relying on congressional findings regarding “unit cohesion” and the like, but that does not go to whether the application of [Don't Ask Don't Tell] specifically to Major Witt significantly furthers the government’s interest and whether less intrusive means would achieve substantially the government’s interest." The case is thus sent back to the trial court "to develop the record on Major Witt’s substantive due process claim. Only then can [Don't Ask Don't Tell] be measured against the appropriate constitutional standard."

The Circuit Court suggest that Witt may win the case. After noting that the question for the lower court is whether the law, as applied to Witt, is constitutional, in a footnote, the Court says that "the facts as alleged by Major Witt indicate the contrary. Major Witt was a model officer whose sexual activities hundreds of miles away from base did not affect her unit until the military initiated discharge proceedings under DADT and, even then, it was her suspension pursuant to DADT, not her homosexuality, that damaged unit cohesion."