9th Circuit Refuses to Reconsider Gay Military Case

An attempt by the government to get the U.S. Court of Appeals for the 9^th Circuit to reconsider a decision issued by a three-judge panel earlier this year about the anti-gay military policy known as "don’t ask, don’t tell," failed last week, when the court announced on December 4 that the panel that originally decided the case had voted against rehearing it, and that a call for review by a larger "en banc" panel of the court fell short of a majority vote from the full circuit court.   Witt v. Department of the Air Force, 2008 Westlaw 5101565.

The court’s action enhanced the possibility that the military issue will end up in the Supreme Court, unless the incoming Obama Administration decides not to appeal the ruling further as part of a general reconsideration of the policy, which President-Elect Obama promised to end during his presidential campaign. Reports emanating from the Obama transition organization suggested that DADT was not high on the list of things to be addressed early in the administration, as candidate Obama had intimated that his approach would be to initiate discussions within the Pentagon about changing the policy and reaching some kind of consensus before proposing legislation. The court’s ruling may force the issue forward on the calendar, unless the government decides to avoid further appeal and let the case go back to the District Court for a trial, which could take a year or more to resolve.

The May 21 panel decision in Witt v. Department of the Air Force broke new ground, holding that prior decisions by the 9^th Circuit upholding the military policy were no longer valid in light of the Supreme Court’s 2003 Texas sodomy decision, Lawrence v. Texas, which found constitutional protection for "homosexual conduct," and that the government would have to show that there was a good justification to dismiss Major Margaret Witt, an Air Force nurse, because of her relationship with a civilian woman. Although the panel decision did not hold that the "don’t ask, don’t tell" policy was unconstitutional on its face, a majority of the panel found that the application of the policy in any individual case was entitled to "heightened scrutiny" by the court, putting the burden on the government to show that discharging the particular service member was necessary to achieve the policy justification, identified by Congress as preserving "good order and morale" in the military.

Under prior 9^th Circuit cases upholding the policy, it was presumed to be constitutional and the burden was placed on the challenging gay service member to show that there was no rational justification for the policy. Courts have consistently ruled that the extensive legislative hearing record that led to the policy’s enactment provides a rational justification for the policy.

Because Major Witt continued to receive the support of her peers after it became known that she was involved in a lesbian relationship (which has since ended), and she had conducted her relationship with her partner discreetly, living with her in a house more than 250 miles away from the military hospital were she worked, there was some doubt whether it was necessary to dismiss her from her nursing position in order to uphold "good order and morale" in her unit, but the decision whether the discharge was justified was to be decided by the trial judge, who had originally dismissed the case based on the pre-Lawrence 9^th Circuit precedents.

The Witt decision was the first by a federal appeals court to find that Lawrence v. Texas mandated a higher level of judicial review than the deferential "rational basis" test in a case asserting that a federal policy placed an unconstitutional burden on the liberty of an individual. In the same decision, a majority of the panel rejected the argument that the military policy might violate Witt’s right to equal protection of the law, finding that the Supreme Court had premised its ruling in Lawrence on the Due Process Clause rather than the Equal Protection Clause, and refusing to question prior 9^th Circuit decisions holding that sexual orientation is not a "suspect classification" for government policymaking. A partially dissenting judge on the panel argued that both the Due Process and Equal Protection challenges should be subjected to strict scrutiny, the most demanding level of judicial review, while agreeing with the majority of the panel that the district judge erred in dismissing the case.

Six members of the 28-member court dissented from the decision to deny en banc review, in three separate opinions joined by various members of the court. All of the dissenting judges were appointed by Republican presidents. The court gave no indication of how many 9^th circuit judges voted to reconsider the case, reporting only that "the en banc call failed to receive a majority of votes of the nonrecused active judges in favor of en banc reconsideration."

Judge Diarmuid Fionntain O’Scannlain, a Ronald Reagan appointee, argued that the panel had misapplied Lawrence v. Texas to this case. In a lengthy opinion joined by three other members of the court, he insisted that Lawrence was a narrow holding that states could not use the criminal law to penalize the private consensual sexual activities of gay adults. O’Scannlain rejected the panel’s conclusion that Lawrence stood for a broader principle that government could not enact policies that place burdens on the gay people because of their sexual activities or identities outside the criminal law context. He strenuously objected to the panel’s conclusion that the Lawrence ruling mandated "heightened scrutiny" for any government policy that adversely affects gay people, criticizing the panel’s use of another Supreme Court decision concerning forced medication of criminal defendants as a source to construct an analytical test for reviewing the constitutionality of such policies. Judge O’Scannlain also argued that the panel’s decision failed to accord the deference to the political branches on questions of military policy that is mandated by Supreme Court precedents.

"No matter how strongly some of us may feel about the underlying issues in this case," he wrote, "the Supreme Court precedents in substantive due process law compel not only our usual obedience, but also our self-conscious restraint. We have no mandate to follow either our reasons or our convictions down paths the Constitution and the Court have left for Congress to chart. Lawrence did not change that, nor did it provide a forum for lower courts to measure the policy decisions of Congress against the circumstances of a particular litigant."

Judge Andrew J. Kleinfeld, who was appointed to the court by George H.W. Bush, dissented separately, joined by Judge Carlos T. Bea, a recent George W. Bush appointee (who actually signed all three dissenting opinions). Judge Kleinfeld refrained from taking on the panel’s analysis of Lawrence v. Texas, instead premising his dissent entirely on the deference argument. Kleinfeld wrote that even if federal precedents, including Lawrence, do establish "a broad constitutional right, enforceable in civil as well as criminal proceedings, to liberty among consenting adults to have whatever sort of sexual contact they choose," and even if this mandates "intermediate or strict scrutiny" rather than the traditional rational basis test, "the panel would still be mistaken," he asserted. "The reason why is that the general constitutional right to sexual liberty competes against the especially high level of deference we are required to extend to Congress and the President regarding military affairs, and few liberties prevail against that deference."

Kleinfeld focused on a prior U.S. Supreme Court decision from 1986, Goldman v. Weinberger, in which the Court ruled that the military could discipline an Orthodox Jewish chaplain who insisted on wearing his religiously-mandated head covering in circumstances that would violate military dress regulations. Although the right of an individual to comply with the dictates of his or her religion is firmly protected by the First Amendment, nonetheless the Supreme Court ruled that deference to the military’s judgment about what is necessary to preserve good order and morale should be shown by the courts. Although Congress promptly passed a statute authorizing the wearing of religious headgear by chaplains in the military, the Court’s constitutional holding has never been repudiated. "I do not think the panel’s decision can stand unless Goldman v. Weinberger falls," wrote Kleinfeld.

Finally, Chief Judge Alex Kozinski dissented, joined by two judges, taking no position on whether the panel decision was right or wrong, but arguing instead that en banc review should be granted because of the importance of the case. "The panel has done a fine job in an exceptionally difficult and fraught area of the law," he wrote, "and Major Witt’s case compelling illustrates the sometimes arbitrary and destructive operation of the ‘Don’t Ask, Don’t Tell’ policy. At the same time, Judge O’Scannlain raises serious doubts about the scope of Lawrence, and Judge Kleinfeld makes a strong case for deference to the political branches on military matters."

"I’m not sure who’s right," Kozinski continued, "but I am sure that this is the type of case we need to take en banc because it ‘involves a question of exceptional importance,’" quoting from the Federal Rules of Appellate Procedure’s description of the standards for determining when a panel decision should be reconsidered by a larger group of judges.

"When we stand against the combined might of the other branches of government," wrote Kozinski, "we should ensure that our own authority is at its maximum. En banc rehearing – whatever the outcome – would have shown that we gave this matter the sustained attention it merits. Moreover, there is strength in numbers: The conclusions of an en banc court would reflect many more points of view and could not easily be dismissed as outliers." The 9^th Circuit’s current rules provide that an en banc panel consist of 15 judges drawn at random from the full 28-member circuit court.

If the government seeks Supreme Court review, the odds are good that it would be granted for the first time in a gay military case, because the U.S. Court of Appeals for the 1^st Circuit, based in Boston, ruled on June 9, in Cook v. Gates, that the military policy was subject to heightened scrutiny but was saved from attack by the deference requirement. This creates a split in circuit authority on a question of national importance, which would make it unlikely that the Supreme Court would deny review to a case that ruled against the government’s position.

The government has three months to decide whether to file a petition. The Bush Administration could rush to file a petition for review, but that makes little sense, since the decision whether to pursue the case would be up to the incoming administration, and the Court would not likely rule on whether to hear the case until after receiving a responding statement from Witt’s attorney, which would not be due for some time after the government’s petition was filed, after the new administration has taken office. More likely, the Justice Department would apply to the Court for an extension of time to file a petition, on the ground that the new administration should be given time to decide whether to proceed, or just let the matter sit to be resolved by the incoming administration.

Judge Kozinski concluded his dissent by commenting that granting en banc review would have the merit of delaying the case further, thus giving the political branches a chance to address the issue in light of 15 years of experience under the policy, including Witt’s case, and perhaps rendering Witt’s case moot.