9th Circuit Rules Heightened Scrutiny Applies to Due Process Challenge of Military Discharge

A three-judge panel of the U.S. Court of Appeals for the 9^th Circuit, based in San Francisco, has revived a constitutional challenge to the "Don’t Ask, Don’t Tell" anti-gay policy governing the U.S. armed forces, partially reversing U.S. District Judge Ronald B. Leighton’s dismissal of Major Margaret Witt’s challenge to her impending discharge from the Air Force Reserve. Witt v. Department of the Air Force, No. 06-35644.

Two of the judges in the May 21 ruling, Circuit Judges Ronald M. Gould and Susan P. Graber (both appointed by Bill Clinton), found that the military policy’s application to Major Witt should be evaluated using a "heightened scrutiny" standard, which would require the government to do more than reiterate the tired mantra that "homosexuality is incompatible with military service" and actually demonstrate why the Air Force needs to discharge officers such as Witt, who did not speak openly about her sexual orientation to other military members and maintained a discreet relationship with a civilian woman, living several hundred miles away from the base where she performed her Reserve service.

The third member of the Ninth Circuit panel, Judge William Canby (a senior judge appointed by Jimmy Carter), would go further, requiring the government to meet the test of strict scrutiny by showing a compelling interest that can only be achieved through the discharge of Major Witt and service members like her.

Major Witt’s challenge alleged violations of substantive and procedural due process as well as the equal protection component of the 5^th Amendment. The court voted 2-1 to uphold Judge Leighton’s dismissal of the equal protection claim, and decided that the factual record would have to be further developed on the procedural due process claim, so it was premature to dismiss that claim. The focus of the 9^th Circuit panel’s majority ruling was on the substantive due process claim.

This is not the first time that a three-judge panel of the 9^th Circuit sought to impose heightened constitutional scrutiny on a policy requiring the discharge of gay military personnel. In 1988, a three-judge panel found that the anti-gay policy that pre-dated the current "don’t ask, don’t tell" policy violated the Equal Protection Clause in the case of Perry Watkins, an Army sergeant who had enlisted during the Vietnam War era, but whose attempt to re-enlist was being blocked. Watkins v. U.S. Army, 847 F.2d 1329 (9^th Cir. 1988), vacated en banc, 875 F.2d 699 (9^th Cir. 1989), certiorari denied, 111 S.Ct. 384 (1990). At that time, Circuit Judges William Norris and William Canby voted to subject the military policy to heightened scrutiny, while Circuit Judge Stephen Reinhardt, agreeing in principle, dissented because he found that the Supreme Court’s 1986 Georgia sodomy ruling, Bowers v. Hardwick, 478 U.S. 186, compelled rejecting the challenge.

The Watkins ruling was vacated by a larger panel of the 9^th Circuit, which instead ruled in Watkins’ favor using a non-constitutional theory of estoppel, reasoning that since the Army had allowed Watkins to re-enlist several times even though his homosexuality was known to them, it was precluded from rejecting his re-enlistment. After the Supreme Court refused to review that ruling, the Army settled up with Watkins by offering him the pension he would have earned had he been allowed to re-enlist.

The "don’t ask, don’t tell" policy was adopted by Congress in 1993, and the 9^th Circuit subsequently rejected several challenges to it, relying on Bowers to bolster the court’s view that the correct standard of judicial review for an anti-gay government policy challenged as violating equal protection was the rational basis test, under which deference to military judgment about the undesirability of having gay people in uniform carried the day for the government. The courts relied on the argument that because Bowers upheld criminal penalties for sodomy, a class of individuals defined by their desire to engage in sodomy could not be a suspect classification.

But now, according to Circuit Judge Ronald M. Gould, writing for the majority of the Witt panel, Lawrence v. Texas, 539 U.S. 558 (2003), changes everything. Rejecting the government’s argument that the Supreme Court’s ruling in Lawrence applied the rational basis test to strike down the Texas Homosexual Conduct Law, Gould concluded that the Court had used some form of heightened scrutiny. "We cannot reconcile what the Supreme Court did in Lawrence with the minimal protections afforded by traditional rational basis review," he wrote, noting that the Court had reversed Bowers, criticizing the Bowers court as having failed "to appreciate the extent of the liberty at stake."

This "does not sound in rational basis review," said Gould. "Under rational basis review, the Court determines whether governmental action is so arbitrary that a rational basis for the action cannot even be conceived post hoc. If the court was applying that standard. . . it had no reason to consider the extent of the liberty involved. Yet it did, ultimately concluding that the ban on homosexual sexual conduct sought to ‘control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.’ This is inconsistent with rational basis review."

Gould also noted that the Court had relied on "fundamental rights" cases involving contraception and abortion in describing the liberty interest at stake, and that the Court’s language in stating its conclusion was also inconsistent with rational basis review. "The Court declared: ‘The Texas statute furthers no legitimate state interest _which can justify its intrusion into the personal and private life of the individual."_ (emphasis added). Were the Court applying rational basis review, it would not identify a legitimate state interest to ‘justify’ the particular intrusion of liberty at issue in Lawrence; regardless of the liberty involved, any hypothetical rationale for the law would do."

"However," wrote Gould, "we hesitate to apply strict scrutiny when the Supreme Court did not discuss narrow tailoring or a compelling state interest in Lawrence, and we do not address the issue here." Instead, looking by analogy to a 2003 Supreme Court decision involving forcible medication of a mentally-ill criminal defendant, Sell v. United States, 539 U.S. 179 (2003), the 9^th Circuit panel decided that private, consensual homosexual conduct involves a "significant constitutionally protected liberty interest," and borrowing from the Supreme Court’s terminology in that case, ruled that the application of the "don’t ask, don’t tell" policy to Major Witt should be evaluated based on a three-part test: whether there is an important governmental interest at stake, whether application of the policy to Major Witt will significantly further that interest, and whether it is necessary to do so because an alternative method is unlikely to achieve the desired result.

Major Witt had alleged in her complaint, without any contraction by the government, that she had an exemplary military career, earning numerous commendations and promotions, right up to the time that the Air Force acted against her based on reports that she was a lesbian. While the Defense Department claims that it must exclude openly gay people to maintain good order and morale, Witt alleges that it was her suspension from active duty pending discharge that harmed good order and moral in her unit, not her sexual orientation.

The court rejected the idea of subjecting the military policy to a facial due process challenge in this case, instead finding that the decision should focus, on an individual basis, on whether a particular service member’s sexual orientation and behavior merited discharge. In this, it was following the lead of the Court of Appeals for the Armed Forces, which ruled in 2004 that under Lawrence v. Texas, the military sodomy law may not be applied to cases – usually involving sodomy in private off a military basis between a military member and a civilian – that do not raise specific military concerns. That is, the military appeals court refused to declare the military sodomy law unconstitutional on its face, but instead limited its application.

Thus, when/if the case goes back to Judge Leighton of the District Court in Seattle, the focus would be on Major Witt and the application of the policy to her.

In another part of the opinion, Gould rejected Major Witt’s equal protection challenge to the policy, finding that Lawrence had not changed anything regarding constitutional equal protection doctrine, thus leaving intact the 9^th Circuit’s pre-Lawrence rejection of equal protection challenges to the military policy, on the ground that the rational basis test is used to determine equal protection challenges involving sexual orientation.

In his separate opinion, concurring in part and dissenting in part, Judge Canby, who had been part of the original three-judge panel in the Perry Watkins case twenty years ago, argued that the Lawrence opinion was a due process fundamental rights case and that the standard should be strict scrutiny. Furthermore, he disputed the majority’s decision that there was no viable equal protection claim, arguing that the standard of review for equal protection has not been definitively decided by the Supreme Court in Romer v. Evans, 517 U.S. 620 (1996), that the 9^th Circuit’s precedents on that issue have been superseded by later Supreme Court rulings – most significantly the overruling of Bowers v. Hardwick – and that the court should find sexual orientation to be a "suspect classification," again requiring the strict scrutiny standard for judicial review of the policy. (Canby also noted the inconsistency on equal protection: if the policy burdens either a "significant liberty interest," per the majority, or a fundamental right as he contends, then the policy would be subject to heightened scrutiny on that basis as a matter of both equal protection and due process, since the Supreme Court has embraced alternative approaches to equal protection focusing either on the right at stake or the group that is disadvantaged by the policy....)

Judge Canby did not mention the California Supreme Court’s marriage ruling of last week, in which that court found that sexual orientation is a suspect classification under the state constitution, but his argument was similar to that made by Chief Justice Ronald George in the marriage case. Canby would require the Defense Department to show that there is a compelling interest behind the military policy, and that it is narrowly tailored to achieve that interest without unduly burdening the privacy and equality rights of LGBT service members.

Now the government has a strategic decision to make. It could let the case go back to the district court, but that would require the government to actually try to prove that the military policy is really necessary to maintain good order and morale.

The more likely alternative is that the government will petition the 9^th Circuit for review by a larger bench, as it did in the Perry Watkins case twenty years ago, and given the significance of the ruling, the Circuit is likely to grant en banc review. Also, this is an atypically liberal panel of the 9^th Circuit (all Democratic appointees), which suggests a high likelihood of granting en banc, vacating, and affirming the original dismissal.

On the other hand, this case could end up being the vehicle to get the issue of the military policy, and some enlightenment on the true scope of Lawrence and Romer as precedents, the correct standard of judicial review for anti-gay government discrimination, up before the Supreme Court, if the government decides to by-pass en banc review and petitions directly for certiorari. The Supreme Court has never agreed to review a gay military case – because it has never been confronted with a government appeal from a final decision by a federal court of appeals questioning the constitutionality of the policy. It is hard to imagine that the Supreme Court would deny certiorari in the government’s appeal from a decision requiring them to cut sharply back on the enforcement of "don’t ask, don’t tell."

A test-case challenge to the military policy is pending before the First Circuit Court of Appeals in Boston, Cook v. Rumsfeld, 429 F.Supp.2d 385 (D. Mass. 2006), and it is possible that the First Circuit’s ruling, when it emerges, will end up first at the Supreme Court.

Major Witt is represented by Seattle attorneys James Lobsenz and Carney Spellman and the ACLU of Washington in Seattle. (Lobsenz, by the way, was one of the attorneys representing Perry Watkins in his lawsuit against the Army two decades ago.) Judge Gould noted that the court received three amicus briefs in support of Major Witt’s appeal, from Servicemembers Legal Defense Network, Lambda Legal, and a joint brief by the International Commission of Jurists and the Center for Constitutional Rights. The conservative National Legal Foundation filed a brief in support of the Air Force.