A panel of the Ninth Circuit Court of Appeals has issued an opinion favorable to Major Margaret Witt, a decorated Air Force nurse and Persian Gulf veteran who was discharged for being in a longstanding relationship with another woman.
The appellate panel cited the U.S. Supreme Court's Lawrence decision, which overturned so-called sodomy laws criminalizing gay sex, and which established that intimate consensual sexual conduct was part of the liberty protected by substantive due process under the Fourteenth Amendment [revised from earlier posting]. The panel then remanded for lower court determination whether Don't Ask, Don't Tell (DADT) violated Witt's (and by extension all service members') fundamental rights. IGF contributing author Dale Carpenter weighs in over at the Volokh Conspiracy, commenting:
I take some satisfaction in the panel's conclusion that Lawrence supports heightened scrutiny for laws that burden the exercise of private adult sexual autonomy.
But just about every lower federal and state court, and it seems most scholars, until now have refused to read Lawrence that way. Even courts that have struck down laws that are anti-gay, like the Kansas Supreme Court (striking down a law establishing vastly different criminal penalties for sex with a minor depending on whether the minor was of the same or opposite sex), or striking down laws that have infringed on private adult sexual autonomy, like a recent Fifth Circuit panel (striking down a Texas law against sex toys), have avoided reading Lawrence as a fundamental-rights case. Indeed, on the question of whether the sodomy decision recognized a fundamental right, it can be said without too much exaggeration that the controlling opinion in Lawrence is actually Justice Scalia's dissent....
Nevertheless, quite apart from whether DADT is ultimately struck down, and unless the en banc court reverses the panel's determination that some form of intermediate scrutiny applies under Lawrence, this holding by itself is significant.
Law professor Eugene Volokh adds:
there's now a split on the subject between the Ninth and the Eleventh Circuits, and the question extends far beyond "Don't Ask, Don't Tell." (The Eleventh Circuit decision, for instance, upheld Florida's ban on adoption by homosexuals; that case might well come out differently under heightened scrutiny.
There's background on Maj. Witt and her case here.
More. Carpenter also comments on sexual orientation and heightened scrutiny in the California marriage decision, here, finding:
the court's equal protection holding will outlast a state constitutional amendment banning gay marriage and will have potential to challenge anti-gay discrimination well beyond the issue of marriage. If gay marriage loses in California in November, the equal-protection holding will be the lasting legacy of the opinion.
20 Comments for “A Case to Watch”
posted by RIchard on
Odd. Apparently, some people want to celebrate some court rulings, but decray others as the work of ‘activists’.
Romer v. Evans (1996) and Lawrence v. Texas (2003) both place sexual orientation-based discrimination under the lowest level of constitutional review; rational.
At most, Lawrence might invalidate a part of the UCMJ sodomy law, but certainly not DADT. Although the Supreme Court will either ignore the issue or seek to undermine these two iimportant gay rights cases.
posted by Rob on
Why the hell is the Democrat controlled congress taking so much time to revoke DADT? H.R.1246 , which was introduced 14 months ago is still at the committee level! The system is inefficient and slow, and for such simple legislation, there shouldn’t be a need for a committee. Parliaments tend to get things done much faster.
posted by Rob on
Sorry, ignore previous post. Forgot double quote in link reference
Why the hell is the Democrat controlled congress taking so much time to revoke DADT? H.R.1246 , which was introduced 14 months ago is still at the committee level! The system is inefficient and slow, and for such simple legislation, there shouldn’t be a need for a committee. Parliaments tend to get things done much faster.
posted by Craig2 on
It’s fascinating that this is still an issue in the United States, given that Britain, Canada, Australia and New Zealand all desegregated our armed forces during the nineties, and there are now frontline UK Iraqi War service personnel serving in that theatre of combat.
As for NZ’s armed forces, one senior military officer accepted our Human Rights Act 1993 with the observation that he didn’t care what the guy opposite him in the trench did in bed, he was just concerned with whether or not they were a competent soldier.
(Apparently, the “Libertarian” Presidential candidate Bob Barr doesn’t agree. Remember his anti-Wiccans-in-the-military shenanigans while in the House of Representatives?)
Craig2
Wellington, NZ
posted by Jorge on
Lawrence v. Texas “established” a fundamental right to sexual autonomy? That’s news to me. What about the contraception and abortion cases? Lawrence is just a rational extension of existing rights, but there’s no absolute sexual autonomy. The military disciplines people for heterosexual relationships. Religious schools fire people for having children out of wedlock. Therapists can lose their licences for having sex with their clients. There are limits to sexual autonomy. What’s not acceptable is discrimination.
posted by Patrick on
Stephen is right about underlining what is more important in the California decision of last week. It’s equal protection.
It is a shame that Maj Witt was not able to continue to serve her country in the outstanding manner she served for so long. I hope the 9th’s decision will be upheld by the Supreme Court on the right grounds.
But it’s more important for gays to press our Democrat Congress to repeal DADT or make it legislatively irrelevant. It’s the least Dems can do for gays after all we’ve done for them. And they need to do it before November, not after they get another election cycle out of our support.
posted by tavdy on
“But it’s more important for gays to press our Democrat Congress to repeal DADT or make it legislatively irrelevant. It’s the least Dems can do for gays after all we’ve done for them. And they need to do it before November, not after they get another election cycle out of our support.” – Patrick
Unless the Dems can get a veto-proof vote, there’s little point.
I think the real shame in this situation is that, at a time when other nations have for years banned their militaries from discriminating against gays in this way, the American government – which so often portrays itself abroad as the defender of liberty – is yet again having to be dragged kicking and screaming to an admission that they fouled up.
posted by Pepe N. Johnson on
“Apparently, the “Libertarian” Presidential candidate Bob Barr doesn’t agree.”
Actually, Craig, Mr. Barr has specifically gone on record – via an Op-Ed published in the Wall Street Journal, his personal website and campaign website – calling for the repeal of Don’t ask, Don’t tell. His reasoning for repealing DADT is very close to the privacy rationale similar to what the judges have cited in Maj. Witt’s case.
I have met Mr. Barr and spoke to him at length about his position on gays in the military. I don’t know much about his positions on Wiccans and other religions on military installations, but I do know he supports gays in the military.
posted by Pepe N. Johnson on
One of the keys to getting the Military Readiness Enhancement Act passed will be hearings. Congress must repeal the law, but most knowledgeable Congressional staffers will cite the testimony from the 1993 hearings as evidence. Despite the numerous studies, personal statements, surveys, etc., that support gays in the military, most of them came after the 1993 hearings and they are not part of the official record yet.
posted by Richard on
A parliamentary system is different because very little discussion or debate occurs within the legislative body itself.
After an election, one party has a majority (in a two party system) and thus controls (with the opposition having little to do but complain) the legislative and executive branch or has formed into a formal contract with another party (in a multi party system) that stipulates policy agreements in advance.
Also many parliamentary systems have a ‘strong party system’ where a party keeps its members on track, with regards to platform. In America, platforms are –as the Pirates movie notes — more like guidelines then actual planks.
Hence, Democrats have a slim majority, different Democrats have different views on gay rights and what the majority of Americans think does not matter too much because we do not have national elections and candidates need not get a majority of the popuar vote.
posted by Richard on
What can be do about it? Well here are some thoughts;
(1) We could use IRV (majority rule) to elect candidates or keep pluarity rule with some form of pr.
(2) We could make candidate ballot access and debate rules fair and equitable, so at least elections might be a bit more competitive.
posted by Pat on
Unless the Dems can get a veto-proof vote, there’s little point.
Tavdy, I disagree. Let’s get a vote and see if we can get a majority. Then let’s see if Bush has the nerve to veto the bill.
posted by avee on
Richard writes: “Romer v. Evans (1996) and Lawrence v. Texas (2003) both place sexual orientation-based discrimination under the lowest level of constitutional review; rational.”
That’s obviously open to judicial dispute, since the appellate panel just ruled that Lawrence should be interpreted as imposing the higher standard of “strict scrutiny.” That’s the point of the ruling — and the post.
Jorge writes: “Lawrence v. Texas ‘established’ a fundamental right to sexual autonomy? That’s news to me. What about the contraception and abortion cases? Lawrence is just a rational extension of existing rights, but there’s no absolute sexual autonomy.
Well, yes. So what’s your point? You seem to belittle Lawrence as if the abortion and contraceptive cases did the real heavy hauling – except for gay people (as if that were a minor detail!).
It seems to me that many commenters are interested soley in picking nits and/or simply denigrating these Culture Watch posts, often with little thought to the actual content.
posted by Richard on
The fact that both major gay rights case were decided on the basis of rational review is not open to judicial dispute, to anyone reading the opinions.
The Justices are very clear what standard of review they are using. Strict scrutiny has been reserved for race (color, ethnicity), heighten for sex, and everything else falls into rational.
What an Federal Appellate Court says only matters in that particular Circuit, until the Supreme Court says otherwise.
What a State Appellate Court says only matters in that State.
Lawrence was decided on rational review and did not establish any ‘fundamental’ right (strict review) to engage in sodomy or homosexuality.
The birth control cases were decided in the 1960s, so the three levels of review may not have arisen in the court. But the cases are online, and the opinion probably states what level of review was used.
The controlling view on abortion is probably not Roe v. Wade but a 1992 case.
The 1992 case did not really find a fundamental right for a woman to have an abortion.
All this basically comes down to how ‘good’ a reason does the State or Federal government have to give — to the court — when they want to deny a citizen of life, liberty or property or due process or equal protection.
posted by tavdy on
One question regarding the equal-footing issue that has come out of the California Gay Marriage decision – if California does vote for a DOMA-style constitutional amendment in November, given the new status of gay rights issues as subject to “strict scrutiny” rather than “rational basis”, surely such an amendment could be struck down as breaching the US Constitution’s due to the 14th Amendment’s Equal Protection Clause?
And doesn’t that have the potential to then strike down State-level DOMAs?
____
As an aside, there’s a case currently being heard in London which hinges on the plaintiff’s explicit recognition of UK Civil Partnerships as equivalent to and indistinguishable from UK Civil Marriage, and the fact that the plaintiff is a Christian opposed to gay marriage. US Courts have previously taken European case law as precedent regarding the values of “Western civilisation” – the 2003 Lawrence v. Texas case cited the 1981 European Court of Human Rights case Dudgeon v. United Kingdom. If Lilian Ladele wins her case it could have relevance in the USA by establishing that, within Western civilisation, civil unions are recognised as equivalent to marriage by at least some Christian opponents to gay-marriage.
posted by another steve on
We may well feel that anti-marriage state amendments breach the U.S. Constitution’s equal protection clause, particularly if Lawrence is read as placing sexual orientation discrimination in a class that requires “strict scrutiny” to survive. But as noted above, strict scrutiny appears to be a standard read into Lawrence by the California Supreme Court; it’s very possible the U.S. Supreme Court would disagree. And even if they didn’t or side-stepped the issue, overturning state anti-marriage amendments and/or DOMAs would be a big step that I don’t believe most of the nation (unlike possibly liberal-leaning California) would be ready for — and so the nightmare result could be passage of a U.S. Consitutional Amemdment barring same-sex unions for many, many years.
That’s why it’s way to early to try the judicial strategy at the federal level — and if the California decision produces a voter backlash that leads to a state amendment, as blogger Steve notes it will show that the judicial strategy wasn’t so smart at the state level, either.
posted by Richard on
Q) “If California does vote for a DOMA-style constitutional amendment in November, given the new status of gay rights issues as subject to “strict scrutiny” rather than “rational basis”,
The United States Supreme Court decides what the 14th Amendment does and does not mean. They have put sexual orientation based discrimination under rational review.
The fact that the California Supreme Court has looked at such discrimination with strict scrutiny only applies within the state.
If a same-sex couple sued, after a state initiative passed, it would be left up to the FEDERAL courts to rule on the meaning of the 14th Amendment and they refer to the Federal Supreme Court.
All Federal Courts, except the Supreme Court, exist only because Congress wants them to. At any time, Congress has the power to do the ‘nuclear option’ or to abolish every federal court and dump it all the in the supreme court’s lap.
The Fed Supreme Court only has the power of judicial review by an act of Congress.
With few exceptions, the constitution is silent on the powers of the Fed Supreme Court.
Thus the Fed Supreme Court has to avoid piss— off Congress too much or else the nuclear option might come into play or Congress will tell it not to taske certain cases.
surely such an amendment could be struck down as breaching the US Constitution’s due to the 14th Amendment’s Equal Protection Clause?
And doesn’t that have the potential to then strike down State-level DOMAs?
____
As an aside, there’s a case currently being heard in London which hinges on the plaintiff’s explicit recognition of UK Civil Partnerships as equivalent to and indistinguishable from UK Civil Marriage, and the fact that the plaintiff is a Christian opposed to gay marriage. US Courts have previously taken European case law as precedent regarding the values of “Western civilisation” – the 2003 Lawrence v. Texas case cited the 1981 European Court of Human Rights case Dudgeon v. United Kingdom. If Lilian Ladele wins her case it could have relevance in the USA by establishing that, within Western civilisation, civil unions are recognised as equivalent to marriage by at least some Christian opponents to gay-marriage.
posted by Richard on
Right now, the initiative would probably pass and be constitutional. What can change that?
Well, create a multi-party, professional group that can oppose it. This means Democrats, Republicans, Independents, Greens and Libertarians.
posted by Craig2 on
Pepe:
Thank you for updating me about Mr Barr. Evidently, he’s softened up since leaving Congress.
One thing troubles me though. Like many other societies, New Zealand pays a remedial social security benefit to veterans of our wars, as well as to their surviving spouses and any pre-adult dependents.
Is that solely restricted to married heterosexual soldiers, their wives and children in the United States? Because if it is, you may want to bring the area of unconscionable hardship for widowed same-sex partners and children of lesbian/gay soldiers who have made the ‘ultimate sacrifice.’
Craig2
Wellington, NZ
posted by Michigan-Matt on
Patrick writes: “But it’s more important for gays to press our Democrat Congress to repeal DADT or make it legislatively irrelevant. It’s the least Dems can do for gays after all we’ve done for them. And they need to do it before November, not after they get another election cycle out of our support.”
tavdy offers, “Unless the Dems can get a veto-proof vote, there’s little point.”
There’s LITTLE POINT unless it’s veto-proof? Wow, thanks for letting all those wimps in Congress off the hook so easily… I don’t think they’d even crack a sweat with guys like you backing ’em up for yet another election cycle of promises.
How about the Democrat majorities in Congress ACT… then we’ll all put sufficient pressure on the Prez to sign the bill.
It’s called LEADERSHIP.