{"id":50154,"date":"2016-09-30T11:27:00","date_gmt":"2016-09-30T16:27:00","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/supreme\/legal-commentary\/a-servicewoman-prevails-in-her-bid-to-reinstate-her-constitutional-challenge-to-the-dont-ask-dont-tell-policy.html"},"modified":"2016-09-30T11:27:00","modified_gmt":"2016-09-30T16:27:00","slug":"a-servicewoman-prevails-in-her-bid-to-reinstate-her-constitutional-challenge-to-the-dont-ask-dont-tell-policy","status":"publish","type":"supreme","link":"https:\/\/supreme.findlaw.com\/legal-commentary\/a-servicewoman-prevails-in-her-bid-to-reinstate-her-constitutional-challenge-to-the-dont-ask-dont-tell-policy.html","title":{"rendered":"A Servicewoman Prevails in Her Bid to Reinstate Her Constitutional Challenge to the “Don’t Ask, Don’t Tell” Policy"},"content":{"rendered":"\n
\n \n
\n
\n \n \n \n \n \n\n \n \n
<\/td>\n

A Servicewoman Prevails in Her Bid to Reinstate Her Constitutional Challenge to the “Don’t Ask, Don’t Tell” Policy: What Are the Implications of the Ninth Circuit’s Ruling in Witt v. Secretary of the Air Force<\/i>?<\/h1><\/td>\n <\/tr>\n

By VIKRAM DAVID AMAR <\/h2>
<\/a><\/td>\n <\/tr>\n

Thursday, Jun. 5, 2008<\/td>\n\n <\/tr>\n <\/table>\n\n\n\n\n

The blockbuster decision by the California Supreme Court to recognize gay marriage may have dominated the headlines, but it was not the only major gay rights judicial victory to emerge from the West Coast last month. In a less-noticed but also significant ruling in Witt v. Secretary of the Air Force<\/a><\/i><\/strong>, the U.S. Court of Appeals for the Ninth Circuit breathed life into an important constitutional challenge brought by a servicewoman to the military\u2019s so-called \u201cDon\u2019t Ask, Don\u2019t Tell\u201d policy. The court held that the policy discriminates against gay and lesbian relationships in a way that requires a substantial government justification. <\/p> \n\n

In this column, I will analyze the Witt<\/i> ruling and consider where it might lead.<\/p><\/span>\n\n \n \n\n\n

The Facts<\/strong><\/p>\n <\/span>\n

The plaintiff in the case was Margaret Witt. As the Ninth Circuit observed, \u201c[b]y all accounts, Major Witt was an outstanding Air Force officer. She received medals for her service, including the Meritorious Service Medal, the Air Medal, the Aerial Achievement Medal, the Air Force Commendation Medal, and numerous others.\u201d Yet Witt was suspended and then discharged from her position as an Air Force Reservist nurse, just one year short of the twenty years of service that would have qualified her for a full Air Force pension.<\/p>\n

Witt\u2019s discharge was based solely on the fact that she was in a six-year lesbian relationship with a civilian woman. Witt alleges (and this allegation was assumed to be true for purposes of the Ninth Circuit case) that she \u201cnever had sexual relations while on duty or while on the grounds of any Air Force base.\u201d Witt also alleges that she never said to anyone in the military that she was lesbian \u2013 suggesting that the \u201cDon\u2019t Tell\u201d aspect of the policy may not have applied here in a literal way. However, Witt apparently does not deny that she has engaged in repeated homosexual conduct during her time in the service.<\/p>\n

In discharging Witt, the Air Force cited regulations that authorize (perhaps even mandate) presumptive separation for those service members who engage in homosexual acts (unless such acts are unlikely to recur or were coerced), or who say they are homosexual or bisexual (or words to that effect.) <\/p>\n

The Parties\u2019 Clash Over the Applicable Standard of Review<\/strong><\/p>\n

Homosexual conduct, Witt alleges in the lawsuit she filed in federal district court, cannot be the basis for a military discharge, under federal Due Process and Equal Protection principles. The district court judge rejected her Due Process and Equal Protection claims and dismissed both, but a three-judge panel of the Ninth Circuit reversed on the Due Process theory, sending that claim back to the trial court for further proceedings. Moreover, one of the three Ninth Circuit judges (William Canby) would have reversed the district court\u2019s ruling on the Equal Protection claim as well; he argued that the Equal Protection challenge also should be treated more seriously by the district court.<\/p>\n

On the dispositive Due Process claim, the key question is what standard of review should govern the military\u2019s exclusionary policy. Major Witt argued for \u201cstrict scrutiny\u201d — a stringent test under which the government policy could survive only if it is demonstrated to be narrowly drawn, or necessary, to accomplish a \u201ccompelling\u201d government interest. Few laws can survive such a judicial inquiry.<\/p>\n

The Air Force, in contrast, argued for applying \u201crational basis review,\u201d a forgiving standard under which the government must show only that its policy is minimally rational in that it might plausibly serve \u2013 albeit quite imperfectly \u2013 any permissible government goal, even a goal that is far from one of overriding importance.<\/p>\n

Earlier Ninth Circuit cases had held that rational basis review is the correct standard to apply in this setting. However, the Ninth Circuit in Witt<\/i> said that these earlier cases had been eclipsed by the 2003 Supreme Court ruling in Lawrence v. Texas<\/a><\/i><\/strong>. In that case, the divided Supreme Court invalidated a Texas statute that had made private, consensual, adult same-sex conduct criminal. Much of the battle in Witt<\/i> was, and I suspect will continue to be, over how much Lawrence<\/i> applies outside of its facts.<\/p>\n

The Air Force correctly pointed out that Justice Kennedy\u2019s majority opinion in Lawrence<\/i> never admitted that it was applying anything higher than rational basis review to the Texas law that singled out same-sex couples for unfavorable treatment. Indeed, at one point Kennedy\u2019s opinion stated that Texas\u2019 law did not further any \u201clegitimate state interest\u201d \u2013 a term of art that is often used in rational basis review cases.<\/p>\n

Yet Major Witt and the Ninth Circuit pointed out with some force that Justice Kennedy\u2019s opinion also never explicitly stated it was applying only rational basis review, and indeed seemed to go out of its way to avoid reciting the complete standard rational basis review formulation as the test that was being administered.<\/p>\n

The Ninth Circuit\u2019s Use of Lawrence v. Texas<\/i><\/strong><\/p>\n

Lawrence<\/i> is notoriously inscrutable in this regard, and has thus been a vexing case for constitutional law professors to teach. The Ninth Circuit panel argued, interestingly, that this linguistic inscrutability should lead us to focus on the Court\u2019s result in Lawrence<\/i>, rather than just on what the Court said in reaching that result. As the Ninth Circuit put the point, \u201c[i]n these ambiguous circumstances, we analyze Lawrence<\/i> by considering what the Court actually did<\/u>, rather than by dissecting isolated pieces of text. In so doing, we conclude that the Supreme Court applied a heightened level of scrutiny in Lawrence<\/i>.\u201d<\/p>\n

In other words, the Ninth Circuit seems to be saying that an inquiry into the Court\u2019s resolution of Lawrence<\/i> (rather than just its language) suggests that the Court must have applied some test more stringent than rational basis review, because ordinary minimum rationality review (if applied the same way as in other cases) would have been more deferential in its application and outcome than the Court seemed to be in Lawrence<\/i>.<\/p>\n

For this reason, the Ninth Circuit decided that at least some intermediate standard of review (in between rationality review and strict scrutiny) should apply to Witt\u2019s case, and sent the case back to the district court to apply this standard. Whether the government can prevail under the intermediate standard will depend on how much it can actually document its claim that keeping Major Witt in the service will somehow harm her unit, a seemingly tough task for the military. <\/p>\n

Judge Canby would have applied strict scrutiny \u2013 which even more likely would result in a finding that Witt\u2019s discharge violated the Constitution. (Recall that he is also the judge who would have sent the Equal Protection claim for more work in the lower court as well.)<\/p>\n

Did the Ninth Circuit Get it Right, and Will its Result Stand?<\/strong><\/p>\n

Given Lawrence<\/i>\u2019s fuzziness, the Ninth Circuit\u2019s decision to apply some form of heightened scrutiny is eminently plausible. Yet when one focuses on what Lawrence<\/i> did \u2013 rather than just what formulations the Court recited \u2013 one must also confront the fact that Lawrence<\/i> invalidated a criminal statute, not a civil regulation, and certainly not a regulation concerning public employment. Indeed, Justice Kennedy, in one of Lawrence<\/i>\u2019s most famous passages, did try to limit the scope of his ambitious ruling there, in ways that might suggest that its logic may not reach Witt\u2019s case:<\/p>\n

\u201c[This case] does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct<\/u> or prostitution. . . . The State cannot demean [the] existence [of the couple who challenged the law] or control their destiny by making their private sexual conduct a crime<\/u>.\u201d (emphasis added).<\/p>\n

There are two parts of this key passage that arguably undermine the Ninth Circuit\u2019s reading \u2013 the disclaimer of application to \u201cpublic conduct,\u201d and the potential limitation to criminal sanctions. In my view, the latter can\u2019t hold much water \u2013 serious civil penalties have to fall within Lawrence<\/i>\u2019s ban, not just criminal penalties. Would the Court, after Lawrence<\/i>, uphold a massive civil fine for the same conduct the statute Lawrence<\/i> struck down had criminalized? It seems highly unlikely.<\/p>\n

However, the former distinction \u2013 referring to \u201cpublic conduct\u201d \u2013 may be trickier, if Witt\u2019s public employment is construed to mean that even her private activities are somehow \u201cpublic\u201d when known within the military. There are other constitutional rights, such a free speech, that provide much less protection to government employees (even when they engage in off-the-job activity) than to the rest of us; conceivably, Justice Kennedy and the Lawrence<\/i> majority might say the same about the right to engage in private homosexual sex. The Ninth Circuit panel didn\u2019t delve into this possibility.<\/p>\n

It is also worth noting that the Ninth Circuit\u2019s ruling last month diverged from that of at least one other United States Court of Appeals, creating what might be considered a \u201cCircuit split\u201d on the extent to which Lawrence<\/i> justifies heightened scrutiny of laws that single out persons who engage in same-sex conduct for unfavorable treatment. <\/p>\n

The Ninth Circuit might reconsider the Witt<\/i> three-judge panel ruling en banc<\/i>, that is, by the entire Ninth Circuit. And ultimately, the Supreme Court may have to step back in to clarify exactly how broadly Lawrence<\/i> applies. Of course, the court of public opinion may have some influence on this topic when the next Commander-in-Chief and Congress are chosen in the November election. <\/p>\n\n\n

\n

\n\n\n<\/a>\nVikram David Amar is a professor of law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.\n

\n\n<\/p>\n\n\n\n\n <\/div>

\n \n Was this helpful?<\/span>\n \n Yes<\/span>\n \n \n \n <\/path>\n <\/g>\n \n \n <\/rect>\n <\/clipPath>\n <\/defs>\n <\/svg>\n <\/i>\n <\/button>\n \n No<\/span>\n \n \n \n \n <\/g>\n \n \n \n <\/clipPath>\n <\/defs>\n <\/svg>\n <\/i>\n <\/button>\n <\/div>\n <\/span>\n