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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.[1] 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.

[1]   Able v.United States, 155 F. 2nd 628, (2nd Cir. 1998); Holmes v. Cal. Army Nat’l Guard, 124 F. 3rd 1126 (9th Cir. 1997); Richenberg v. Perry, 97 F.3rd 256 (8th Cir. 1996); and Thomasson v. Perry, 80 F. 3rd 915 (4th Cir. 1996)(en banc). 

  2009  Gay Military Signal