By Lisa Keen
Keen News Service
BOSTON-
In a stunning defeat, a relatively progressive federal circuit court ruled Monday that a constitutional challenge against the military's "Don't Ask, Don't Tell" policy was properly dismissed by a lower court. But in doing so, the court became the second federal appeals court in less than a month to say that the U.S. Supreme Court decision in Lawrence v. Texas requires that laws directed at private same-sex conduct be justified by more than just a rational reason.
During oral argument in March 2007, attorneys representing former service members challenging the policy argued that a lower court judge, who had dismissed their case, failed to consider the 2003 ruling in Lawrence striking down sodomy laws. That ruling, said the attorneys, requires the government to offer a significant reason for excluding gays and to show how the policy furthers that interest. Just last month, a 9th Circuit U.S. Court of Appeals panel in Seattle, Wash., rendered just that line of reasoning in upholding the right of an Air Force Reserve major, Margaret Witt, to challenge the military's effort to discharge her under "Don't Ask, Don't Tell."
While acknowledging that the U.S. Supreme Court's decision in Lawrence "has reinvigorated the debate" over the constitutionality of the policy, the panel said the Supreme Court was "unclear" about what level of scrutiny to apply to cases involving gay-related discrimination.
"Some have read Lawrence to apply a rational basis approach. Others see the case as applying strict scrutiny. And a third group views the case as applying a balancing of state and individual interests that cannot be characterized as strict scrutiny or rational basis. Lawrence's doctrinal approach is 'difficult to pin down'," wrote the panel, referring to a comment by lesbian attorney and legal scholar Nan Hunter.
"Lawrence is, in our view, another in this line of Supreme Court authority that identifies a protected liberty interest and then applies a standard of review that lies between strict scrutiny and rational basis," said the panel.
To that extent, the 1st Circuit agreed with the 9th Circuit in the Witt case, but then, it departed. It said the Lawrence decision recognized "only a narrowly defined liberty interest in adult consensual sexual intimacy in the confines of one's home and one's own private life."
The military's policy, said the panel, calls for discharge of a service member "who engages in a public homosexual act or who coerces another person to engage in a homosexual act." Although the policy also calls for dismissing a service member who engages in consensual sex off base in the privacy of their home, said the panel, the policy was "an exercise of Congressional judgment in the area of military affairs" and warrants enormous deference.
"Here, … there is a detailed legislative record concerning Congress' reasons for passing the ("Don't Ask, Don't Tell" policy). This record makes plain that Congress concluded, after considered deliberation, that the Act was necessary to preserve the military's effectiveness as a fighting force, and thus, to ensure national security. This is an exceedingly weighty interest," concluded the panel, "and one that unquestionably surpasses the government interest that was at stake in Lawrence."
The panel also rejected an argument from the plaintiffs that the Supreme Court's 1996 ruling against "laws based on animus" in striking down an anti-gay initiative in Colorado (in Romer v. Evans) should be applied to the military policy. The plaintiffs said that ruling, too, required that the military policy treating gays differently meet a higher standard of review.
But the panel said "Congress has put forward a non-animus based explanation for its decision to pass the Act" and that "Given the substantial deference owed Congress' assessment of the need for the legislation, the Act survives rational basis review."
The three-judge panel of the 1st Circuit U.S. Court of Appeals took 15 months to come to its conclusion. The decision was written by Judge Jeffrey Howard, an appointee of the current President Bush, and joined by Levin Campbell, a Nixon appointee, and in part by Patti Saris, a Clinton appointee.
Saris said she disagreed with her colleagues on only one aspect of the ruling: She believes the policy does violate a service member's First Amendment right to say she or he is gay "if the (policy) is applied to punish statements about one's status as a homosexual."
Aubrey Sarvis, executive director of Servicemembers Legal Defense Network, which led the challenge, said the organization would consult with the plaintiffs to assess whether to appeal to the full 1st Circuit.
The lawsuit, Cook v. Gates, was filed in December 2004 by 12 service members discharged for being gay.
Congress passed the "Don't Ask, Don't Tell" policy in 1993 and, since it went into effect in 1994, more than 11,000 gay servicemembers have been discharged. One of the primary reasons offered for the policy was that the presence of gays would create sexual tension among troops in close quarters and thus, threaten unit cohesion.
