DADT and the
Courts: What’s Going On?
by Tom Field
Georgetown University Law Center
For those who seek repeal of DADT, the
courts have produced both good news and bad in
the past year.
The bad news is that the courts have
failed to strike down DADT on due process, equal
protection, or First Amendment grounds. The
good news is that an important crack has opened
in the wall that stands in the way of a court
decision overturning DADT.
Here’s an explanation of what is going
on.
Stages of Litigation
During the last 30 years, there have
been two main stages of litigation over the
military ban on gays and lesbians. We are now
entering stage three.
Stage One. Stage one began in the
1970s, when a series of cases attacked the
long-standing policy of discharging all gays and
lesbians from the armed services, whether or not
they had declared their sexual orientation.
This policy was coupled with extensive “witch
hunts” to ferret out actual or suspected
homosexuals, and was enforced through an
intrusive question on physical examination forms
which inquired whether an individual had
“homosexual tendencies”.
Starting in the mid-1970s, plaintiffs
such as Air Force Technical Sergeant Leonard
Matlovich began to challenge these policies in
court. After Matlovich declared his
homosexuality, he was discharged as “unfit for
service” despite an exemplary record. He
promptly sued for reinstatement. After years of
litigation, he eventually won an upgraded
discharge and a substantial cash settlement.
Others were not so fortunate. Many
courts deferred to military judgment and refused
to allow challenges to homosexual discharge
decisions. This was the judicial background to
candidate Bill Clinton’s campaign pledge to
issue a Presidential executive order bringing
gay and lesbian discharges to an end.
Stage Two. The second phase of
gay-ban litigation began with the 1993 enactment
of Don’t Ask, Don’t Tell, which overrode
President Clinton’s efforts to issue an
executive order eliminating the gay ban. The
Constitutionality of the DADT statute was
promptly challenged in a number of lawsuits, but
court after court rejected the challengers’
claims, pointing to the extensive Congressional
hearings that had preceded enactment of DADT and
to the long-standing judicial practice of
deferring to military judgments.
Some of these cases found their way to
the U.S. Courts of Appeal, four of which
eventually held that DADT could not be
challenged on due process, equal protection, or
First Amendment grounds.
The uniform rejection of these challenges
seemed to doom efforts to attack DADT in the
courts. No further suits were filed, thus
bringing to a close the second phase of
litigation over the military’s ban on gays and
lesbians.
Stage Three. The Supreme Court’s
decision in Lawrence v. Texas, 539 U.S,
558 (2003) destabilized this static situation
and ushered in the third stage of litigation
over the military ban. Lawrence
overturned statutes in 13 states that
criminalized sodomy between consenting adults in
the privacy of their own homes. It did so in a
way that made it possible to challenge other
statutes that impose disabilities on gays and
lesbians, including the Don’t Ask, Don’t Tell
statute.
Two new DADT suits were promptly
filed, one in New England (Cook v. Gates),
and one in the State of Washington (Witt v.
Department of the Air Force). In both
cases, the district courts dismissed the cases,
holding on the basis of earlier precedent that
DADT was beyond judicial challenge. In both
cases, the plaintiffs appealed to their
respective courts of appeal – the First Circuit
in Boston in Cook and the Ninth Circuit
in San Francisco in Witt. In both
appeals, the plaintiffs alleged that DADT
violates the Due Process and Equal Protection
Clauses of the Constitution, as interpreted in
Lawrence, as well as the free speech
clause of the First Amendment.
Standards of Review
What happened next requires an
understanding of the standards of review that
the courts apply when considering the
Constitutionality of a federal or state statute.
Despite claims by right-wing
commentators that the courts are filled with
“judicial activists,” the courts are actually
very reluctant to strike down statutes. This is
especially the case with statutes that involve
military affairs.
In most cases, federal courts will
uphold a challenged statute if it is possible to
imagine any set of circumstances that
might rationally justify enactment of the
statute. This is known as the “rational basis”
standard of review. Under this standard, a
statute will be struck down on Constitutional
grounds only if it serves no conceivably valid
government interest. Actual legislative reasons
are not required; even a hypothetical reason
invented by the courts after the fact can
justify a challenged statute. Not surprisingly,
few statutes are struck down under this
standard.
In the case of DADT, it has been easy
for the courts to point to morale and unit
cohesion as providing a rational basis for the
military ban. The 1993 Congressional hearings
and the words of the statute itself suggest this
rationalization. This is why none of the
phase-two judicial attacks on DADT were
successful.
The Supreme Court’s decision in
Lawrence changed this situation by
suggesting that a different standard of
review should apply in cases involving
homosexual conduct. This standard of review
involves “strict scrutiny” or at least
“heightened scrutiny” of the purposes of a
statute. Hypothetical justifications won’t do,
Strict or heightened scrutiny is
generally applied in only a very limited number
of cases. Most of these cases involve what the
courts call a “protected liberty interest”. If
a protected liberty interest is at stake, then
the government is required to show compelling
reasons that justify a statute infringing that
interest, and to demonstrate that narrower or
less far-reaching measures could not be used to
reach the same result.
To date, the Supreme Court has
catalogued the following as liberty interests
that trigger strict scrutiny of infringing
statutes: the right to marry, to have children,
to direct the education of one’s children, to
enjoy marital privacy, to use contraceptives, to
have an abortion, and to refuse unwanted medical
treatment.
Lawrence appears to add to this
list an adult’s right “to engage in consensual
sexual intimacy in the home”. Arguably, DADT
infringes this right. That is why Lawrence
has given rise to a new round of DADT
litigation.
Circuits in Disagreement
Both the First Circuit Court of
Appeals in Cook and the Ninth Circuit in
Witt found that the Supreme Court’s
decision in Lawrence required adoption of
some form of heightened scrutiny of the DADT
ban. But the similarity in the decisions of the
two courts ended there.
In Cook, despite finding
hightened scrutiny to be needed, the Court
nevertheless upheld the military ban. It argued
that the Courts owe Congress “the highest
deference” when it enacts statutes relating to
military affairs. “The complex, subtle, and
professional decisions as to the composition,
training, equipping and control of a military
force are essentially professional military
judgments....” it said, adding that the courts
lack “competence” when dealing with military
affairs. It then reviewed the Congressional
hearings that led to adoption of DADT and
concluded that with respect to Congressional
decisions on military matters “judicial
intrusion is simply not warranted.”
In Witt, in contrast, the Ninth
Circuit focused directly on the Lawrence
decision, rather than on deference to Congress
or to the military. It read Lawrence to
mean that “when the government attempts to
intrude upon the personal and private lives of
homosexuals ... the government must advance an
important governmental interest, the intrusion
must significantly further that interest, and
the intrusion must be necessary to further that
interest.”
On this basis, the Ninth Circuit
remanded the Witt case to the U.S.
District Court for trial. When doing so, it
cautioned that when considering DADT as applied
to Major Witt, the lower court should not look
for “some hypothetical, posthoc rationalization
in general” (as would be required under rational
basis review) but should instead investigate
“whether a justification exists for the
application of the [DADT] policy as applied to
Major Witt” (as required under a heightened or
strict scrutiny standard).
Major Witt was an outstanding military
officer who never told anyone in the military
that she was a lesbian. She never had sexual
relations while on duty or on an Air Force base,
and her civilian partner was not connected in
any way with the military. She was well
regarded in her unit, and there is a shortage of
persons with her skills. Given these facts, it
may be difficult for the Air Force to justify
her discharge under DADT.
Perhaps because the government
anticipated the difficulties just described, it
asked the Ninth Circuit to review the Witt
decision en banc. That review would
have required all 48 of the Ninth Circuit’s
judges to consider the case. On December 4,
2008, the government’s request for an en banc
hearing was denied.
Where
Does This Leave Us?
Under normal circumstances, when two
courts of appeal arrive at conflicting decisions
on substantially similar facts – as has happened
in the Witt and Cook cases – the
Supreme Court steps in to resolve the conflict.
But Elena Kagan, President Obama’s new Solicitor
General, recently decided not to seek Supreme
Court review in the Witt case. At almost
the same time, the forces supporting the
plaintiffs in the Cook case also decided
against asking for Supreme Court review.
Why wasn’t Supreme Court review sought
in either case? In Witt, the Obama
Administration may have decided that a Supreme
Court decision could tie its hands as it sought
to repeal or modify DADT. Or it may have
reasoned that the Witt decision would not
be final until after a remand for trial and a
subsequent appeal, and that the case was
therefore not ripe for Supreme Court review.
In Cook, the forces supporting
the plaintiffs may well have concluded that any
case involving the rights of gays and lesbians
automatically has four votes against it when it
reaches the Supreme Court (Scalia, Thomas, Alito,
and Roberts). Loss of only one more vote – on
the basis of military deference or some other
reason -- would spell long-term disaster. That
danger was avoided by a decision not to seek
Supreme Court review.
The continuing failure of the courts
to strike down DADT is disappointing. But
overall the judicial picture is brighter than it
has been in many years, because:
·
For the first time,
the military will be required in Witt to
defend DADT in court and to explain to the
judiciary why it discharged an outstanding
officer with needed skills whose sexual life was
entirely private.
·
At least in the
Ninth Circuit, the standard of review for
statutes that infringe on the rights of gays and
lesbians has changed for the better. Now, for
the first time, heightened scrutiny will be
applied to all statutes (not just DADT) that
infringe on their rights.
These gains are important. Similar
lawsuits may follow Witt, citing the same
precedents that she did. Soon, the courts may
find themselves busy with challenges to DADT
from other discharged soldiers with excellent
records.
Furthermore, additional judicial
circuits may follow the Ninth Circuit’s lead.
Even if that doesn’t happen, the Ninth is a
large circuit, encompassing California, Oregon,
Washington, Idaho, Montana, Nevada, Arizona,
Alaska, and Hawaii. Thanks to the heightened
judicial scrutiny achieved in Major Witt’s case,
gay and lesbian military personnel in those
states now enjoy enhanced protection. In
addition, all gays and lesbians in those states
have greater protection than before against any
statute, state or federal, that intrudes on
their private lives.
©
2009 Gay Military Signal |