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?
	By VIKRAM DAVID AMAR
	Thursday, Jun. 5, 2008

The plaintiff in the case was Margaret Witt. As the Ninth Circuit observed, “[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.” 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.

Witt’s 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 “never had sexual relations while on duty or while on the grounds of any Air Force base.” Witt also alleges that she never said to anyone in the military that she was lesbian – suggesting that the “Don’t Tell” 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.

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.)

The Parties’ Clash Over the Applicable Standard of Review

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’s 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.

On the dispositive Due Process claim, the key question is what standard of review should govern the military’s exclusionary policy. Major Witt argued for “strict scrutiny” -- a stringent test under which the government policy could survive only if it is demonstrated to be narrowly drawn, or necessary, to accomplish a “compelling” government interest. Few laws can survive such a judicial inquiry.

The Air Force, in contrast, argued for applying “rational basis review,” a forgiving standard under which the government must show only that its policy is minimally rational in that it might plausibly serve – albeit quite imperfectly – any permissible government goal, even a goal that is far from one of overriding importance.

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 said that these earlier cases had been eclipsed by the 2003 Supreme Court ruling in Lawrence v. Texas. 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 was, and I suspect will continue to be, over how much Lawrence applies outside of its facts.

The Air Force correctly pointed out that Justice Kennedy’s majority opinion in Lawrence 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’s opinion stated that Texas’ law did not further any “legitimate state interest” – a term of art that is often used in rational basis review cases.

Yet Major Witt and the Ninth Circuit pointed out with some force that Justice Kennedy’s 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.

The Ninth Circuit’s Use of Lawrence v. Texas

Lawrence 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’s result in Lawrence, rather than just on what the Court said in reaching that result. As the Ninth Circuit put the point, “[i]n these ambiguous circumstances, we analyze Lawrence by considering what the Court actually did, 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.”

In other words, the Ninth Circuit seems to be saying that an inquiry into the Court’s resolution of Lawrence (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.

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’s 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.

Judge Canby would have applied strict scrutiny – which even more likely would result in a finding that Witt’s 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.)

Did the Ninth Circuit Get it Right, and Will its Result Stand?

Given Lawrence’s fuzziness, the Ninth Circuit’s decision to apply some form of heightened scrutiny is eminently plausible. Yet when one focuses on what Lawrence did – rather than just what formulations the Court recited – one must also confront the fact that Lawrence invalidated a criminal statute, not a civil regulation, and certainly not a regulation concerning public employment. Indeed, Justice Kennedy, in one of Lawrence’s 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’s case:

“[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 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.” (emphasis added).

There are two parts of this key passage that arguably undermine the Ninth Circuit’s reading – the disclaimer of application to “public conduct,” and the potential limitation to criminal sanctions. In my view, the latter can’t hold much water – serious civil penalties have to fall within Lawrence’s ban, not just criminal penalties. Would the Court, after Lawrence, uphold a massive civil fine for the same conduct the statute Lawrence struck down had criminalized? It seems highly unlikely.

However, the former distinction – referring to “public conduct” – may be trickier, if Witt’s public employment is construed to mean that even her private activities are somehow “public” 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 majority might say the same about the right to engage in private homosexual sex. The Ninth Circuit panel didn’t delve into this possibility.

It is also worth noting that the Ninth Circuit’s ruling last month diverged from that of at least one other United States Court of Appeals, creating what might be considered a “Circuit split” on the extent to which Lawrence justifies heightened scrutiny of laws that single out persons who engage in same-sex conduct for unfavorable treatment.

The Ninth Circuit might reconsider the Witt three-judge panel ruling en banc, that is, by the entire Ninth Circuit. And ultimately, the Supreme Court may have to step back in to clarify exactly how broadly Lawrence 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.

Vikram 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.