In case you missed it, last week the Ninth Circuit reversed a trial court’s dismissal of a constitutional challenge to the military’s Don’t Ask, Don’t Tell policy. The decision, in a case involving an Air Force major’s suspension from duty because of her sexual relationship with another woman, is a fascinating read for any number of reasons, but I’ll just flag a couple for now.
The first concerns the Ninth Circuit’s approach to resolving the vexing question of what level of scrutiny the Supreme Court now requires — as a matter of substantive due process — of government actions that punish same-sex sexual behavior. Because Justice Kennedy’s majority opinion in Lawrence works very hard to avoid identifying the appropriate standard, the Ninth Circuit essentially threw up its hands, declining the parties’ invitation “to pick through Lawrence with a fine-tooth comb and to give credence to the particular turns of phrase used by the Supreme Court that best support their claims.” Instead, the panel chose to “analyze Lawrence by considering what the Court actually did, rather than by dissecting isolated pieces of text.” It concluded that the Lawrence Court applied heightened, and not rational-basis, scrutiny — even though the Court did not tell us that that’s what it was doing. But apparently reluctant to go so far as to apply strict scrutiny absent an explicit go-ahead from the Court, the panel majority borrowed a rigorous-but-not-quite-strict form of heightened scrutiny from the Court’s decision in Sell v. United States, which addressed the proposed forcible administration of anti-psychotic drugs to a mentally ill defendant to render that defendant competent for trial. (Dissenting Judge Canby would have applied strict scrutiny.)
Second, on the equal protection front, the plaintiff’s litigation strategy included the argument that the military’s policy violates equal protection because it requires the automatic discharge of servicemembers who engage in same-sex sexual behavior on the grounds that such activity may be offensive to some members of military units, while failing to require the mandatory discharge of those engaging in other sorts of behavior — such as child molestation — that unit members find objectionable. The panel majority upheld the trial court’s dismissal of the equal protection claim under rational-basis. But as dissenting Judge Canby — who would have applied strict scrutiny to the equal protection claim as well — noted, “it would accomplish too little to establish that persons availing themselves of their constitutional right to intimate homosexual relations should be treated at least as well as child molesters.” This reminded me of last week’s terrific colloquy between Heather Gerken and Kenji Yoshino on Balkinization and Convictions that debated whether future gay rights litigation should lead with equal protection or liberty arguments. While both strategies have their pros and cons, Judge Canby’s observation highlights one particular limitation of an equal protection approach in that it simply requires that certain groups be treated equally: equally well OR equally badly.
Posted by Helen Norton on May 27, 2008 at 03:42 PM