CA1: First bends to approve “Don’t Ask; Don’t tell” on First Amendment Grounds

Cook  v. Gates, Nos. 06-2313, 06-2381.  The First seems to have gone though both facial and as-applied challenges, and ultimately deferred to the government.  There was a dissent.  So, maybe this will go en banc.

Unlike the Ninth Circuit’s Opinion, the First ignores the precedent from the Court of Appeals for the Armed forces in US v. Marcum 2004 CAAFLEXIS 832 (U.S.C.A.A.F., Aug. 23, 2004)  Strange.  Was this on purpose?  Was it an error by a know-it-all clerk?  Or was it the First playing politics?

Since this case will probably be covered by many folks, I will try and get to the legal nerdery, and leave the political stuff for people that care. 

I thought the only interesting issue before the First was the First Amendment issues.  The rest of the gays-in-the military issues, I thought were settled (in favor of the gays).  Strangely, the First reaches to defer to the government.

• Regarding the First Amendment issue (the most interesting) the First says “There is no question that members of the military are engaging in speech when they state their sexual orientation....But the Act's purpose is not to restrict this kind of speech. Its purpose is to identify those who have engaged or are likely to engage in a homosexual act as defined by the statute.”   10 U.S.C. § 654 (2007).    It concludes, “The Act relies on a member's speech only because a member's statement that he or she is homosexual will often correlate with a member who has a propensity to engage in a homosexual act.”  District Judge Saris dissents on this point, but since he won’t be an en banc judge, his very interesting opinion isn’t of much use.
• The First says that Lawrence “recognized that adults maintain a protected liberty interest to engage in certain consensual sexual intimacy in the home."  This is actually somewhat controversial.  There is some interesting language about the correct way to interpret implied holdings from the Supreme Court, and whether Scalia’s dissent should be used in interpreting it.  However, since I think the First is trying to reach a specific result in this big-ticket case, I don’t know if it will do anyone any good to refer to it in, say, an ERISA case.
• The standard of review applied in Lawrence was something that “that lies between strict scrutiny and rational basis”
• Rational basis review does not permit consideration of the strength of the individual's interest or the extent of the intrusion on that interest caused by the law; the focus is entirely on the rationality of the state's reason for enacting the law.
• Lawrence did not identify a protected liberty interest in all forms and manner of sexual intimacy.  So, the First says, the facial challenge fails.
• The First gets all silly about the role of the military, and says that the as-applied challenge fails because Congress thought long and hard about constitutional rights pre-Lawrence.  It is pretty obvious that the judges were reaching here.  They did a pretty good job analyzing Lawrence, but they fall to pieces and seem to be relying on Congress to construe the constitution.  They don’t even cite other courts (including the Court of Appeals for the Armed forces or even any of the service courts of appeal) that have dealt with the issue. 
• The equal protection claims fail because the First has declared Lawrence to be a substantive due process issue, rather than an equal protection one.  (Lawrence is rather opaque about this.)  The First concludes, “  As neither Romer nor Lawrence mandate heightened scrutiny of the Act because of its classification of homosexuals, the district court was correct to analyze the plaintiffs' equal protection claim under the rational basis standard.”

The opinion includes this choice silliness:

The circumstances surrounding the Act's passage lead to the firm conclusion that Congress and the Executive studied the issues intensely and from many angles, including by considering the constitutional rights of gay and lesbian service members. S. Rep. 103-112 at 286-87. Congress ultimately concluded that the voluminous evidentiary record supported adopting a policy of separating certain homosexuals from military service to preserve the "high morale, good order and discipline, and unit cohesion" of the troops.

Dear Solider:

Sorry to hear about your time in Iraq.  If you don't like it now, I am sure that you will soon.  Rest assured you are there for good and honest reasons and nobody would ever stretch intelligence for political means, especially if your life was at risk.  Although we support our troops, you probably understand that we can’t really send you to college the way you would like when you get back.  Also, the VA could use a bit of work.

Anyway, we are sorry that you might feel that we are in an unwinnable “war” (if you can call it that) and that we don’t really have you back on the home front.  But, to make it all up to you, we will kick out some girls for being “dykes.”  Rather than analyze soliders’ rights under Lawrence we decided to look at the Congressional history which says that these girls are one hurting your morale because of their "propensity or intent to engage in homosexual acts."  How awesome is that?

Happy Days,

The American People (via the First Circuit)

Blue Mass Group Comments here.  Pam's House Blend comments here.  A Stitch in Haste comments here.

Comments

[Marty]

FYI, Judge Saris is a she. :)