Witt v. Department of the Air Force

Here, nothing suggests exercising the record for his constitutional ato trial. court imposed the within- the district Guidelines 90-month sentence retalia AFFIRMED. trial. going Although tion for Vasquez’s trial, Vasquez his asserted

district decreased his offense court level points acceptance responsi two

bility. Espino See also United States v.

za-Cano, (9th 456 F.3d Cir.

2006) (noting “possible for a defendant to exercise his to a both Margaret WITT, Major, Plaintiff- acceptance trial demonstrate and to re Appellant, Gonzalez, sponsibility”); United States (9th Cir.1990). any evidence that the absence of district FORCE; DEPARTMENT AIR OF THE motivated, improperly court’s decision was Gates,* Secretary Robert M. of De argument higher defendant’s sen fense; Wynne, Secretary, Michael W. tence impermissible is foreclosed Department Force; Mary of the Air L. (“Mere Carter. See 804 F.2d at 513 impo Walker, Colonel, Commander, 446th sition of a sentence Squadron, [after heavier defen Aeromedical Evacuation AFB, rejects plea more, Defendants-Appellees. dant McChord bargain], without it.”). does not invalidate The record does No. 06-35644. suggest gave the district court Appeals, United States Court of any weight improper to the failure to enter Ninth Circuit. plea proposed by agreement gov ernment. See id. 514. Argued and Submitted Nov. 2007. May Filed

IV Vasquez prima Because faded to make a threat,

facie of an showing immediate

district properly precluded court Vasquez

from introducing any evidence a duress properly

defense and declined to instruct jury on duress. affirm the We district

court’s 90-month sentence reasonable.

The district court did not abuse discre-

tion in declining give Vasquez the same

48-month Vasquez sentence offered to

similarly plea situated defendants as a bar-

gain. Nothing in suggests the record Vas-

quez’s imposed punish sentence was him

* 43(c)(2). Robert prede- M. Gates is R.App. substituted for his Defense. Fed. P. cessor H. Secretary Donald Rumsfeld as Clause, pro- procedural

Protection enjoin DADT’s She seeks to en- cess. The district court dismissed forcement. under Federal Rule of Civil Proce- the suit 12(b)(6) for failure to state claim. dure part, and remand in and affirm We reverse in part. I Lobsenz, Carney Badley Spell- E.

James Seattle, WA, man, P.S., appellant. for the Air Force in Major Witt entered the She was commissioned as Second 1987.1 Washington, ACLU of Caplan, Aaron H. year promoted that same and Lieutenant Seattle, WA, appellant. for the 1989, Captain Lieutenant in in to First General, Keisler, De- Attorney Peter Major in In and 1999. she WA, Justice, DC, ap- for partment of duty from active to reserve transferred pellees. Air assigned to and was McChord Force Steinmeyer, Assistant Anthony J. Tacoma, Washington. Base Director, Staff, Di- Appellate Civil Branch accounts, an By Major all Witt was out- vision, Justice, Washington, Department standing Air Force officer. She received DC, appellees. for the service, including for her the Meri- medals Medal, Medal, the Air

torious Service Medal, Achievement the Air Force Aerial Medal, numerous oth- Commendation annual Performance ers. Her “Officer Re- accomplishments views” commended her Major an was made Air and abilities. Witt child” the Air “poster when Force CANBY, C. Senior Before: WILLIAM her featured in recruitment materi- Force GRABER, P. Judge, Circuit SUSAN Air als; of her photos appeared GOULD, Judges. RONALD Circuit M. than a materials for more dec- promotional GOULD, Judge: ade. Circuit Major Major Witt in a committed and

Plaintiff-Appellant Margaret Witt Witt”) Force, relationship with another wom- (“Major long-term sued Air Defense, August July through 2003. Secretary Secretary of an from Force, Major partner Air was never member Ah' and her Force commander Witt’s (“the Force”) employee any branch of suspended after nor a civilian Air she was forces, Major states Air nurse the armed Witt duty from as an Force reservist had while relationship never sexual relations on account of her sexual with that she any grounds while on Air Major alleges duty civilian woman. Witt relationship, During § as the Force their commonly known base. U.S.C. (“DADT”), Ask, and her shared a home policy partner “Don’t Tell” Witt Don’t process, Equal Spokane, Washington, about miles violates substantive light her. suit Witt in a favorable to Mi- the district court dismissed the most Because (9th claim, present County, v. Clark to state randa below for failure Cir.2003) (en banc). alleged by Major the facts consider Air her away request from McChord Force Base. an administrative Force, Major hearing, promptly Ah’ which On serving in the she did. While Witt 12, 2006, April Major Witt filed military this suit any never told member the United States District Court she was homosexual. Washington, seeking Western District of 2004, Major Witt was July contacted injunctive declaratory and relief from the Torem, by Major who told her Adam discharge proceedings. assigned investigate he had been hearing A military was held on Septem- allegation homosexual. that she was She ber 2006. The board found any declined to make statement to him. that Major engaged had homosexu- An Air Force contacted her chaplain there- al acts and had stated that she awas homosexuality, after to discuss her but she homosexual in violation DADT. It rec- him, speak declined to as well. honorably ommended that she be dis- 2004, Major November Witt’s Air Force charged from the Air Force Reserve. The they superiors told her that were initiating Secretary of Force acted on this formal separation proceedings against her July 2007, ordering recommendation on homosexuality. on account of her This Major that Witt receive honorable dis- was confirmed in a memorandum that Ma- charge. jor Witt received on November unit, Major regarded Witt is well in her That also memorandum stated that she and she that believes she would continue any “pay could engage point to regarded be so even if the entire unit activity pending separa- resolution” was made aware that she is homosexual. tion proceedings. way, another Stated she She also proceedings contends reservist, paid could not be a she could against negative her have had a effect promotion, not earn points toward and she morale, unit cohesion and and that there could not earn benefits. retirement When currently shortage a of nurses in Air memorandum, she Major received this Force ability. of her rank and We must year Witt was less than one short of twen- presume those facts be true for the ty years Force, of service for the purposes appeal.2 of this which have time she would earned a pension. a full Air retirement II later, 6, 2006, on March Sixteen months A Major received another Witt memorandum notifying discharge her that a action was We review de a novo dismissal for fail being her on against initiated account of ure to state a claim. Pruitt v. Cheney, 963 (9th Cir.1992). her homosexuality. 1160, 1162-63 It also advised her of F.2d 2. Four were filed amicus briefs in this Legal case. case. The Servicemembers Defense The International Commission of Jurists and support Major Network wrote in Witt and Rights the Center for Constitutional wrote in argued that the rationale for DADT is not support Major argued and Witt compelling and DADT forces homosexual United recognized States Court has service identity members hide their privacy fundamental and that the in- discharge. Legal avoid National The Founda- legal legal equality ternational is toward trend support tion wrote in of the Air Force and Legal for homosexuals. The Lambda Defense argued purpose has a DADT valid supported and also Major Education Fund cohesion, supporting reducing unit sexual argued Witt and Court has tension, protecting privacy. appreci- We recognized a fundamental to sexual ate the important advice of all amici on the identity and that the district court underval- issues before us. ued the value of the interest at stake in (3)That § married or DADT, member has permits 10 U.S.C. marry forces attempted person members of the armed known discharge of activity. In rel- homosexual the same biological on account of be of sex. provides: part, evant Id. (b) of the armed Policy. member —A argues that DADT violates Witt separated from shall forces process, Equal due Protec substantive regulations pre- under armed forces Clause, procedural process. tion due if Secretary of Defense scribed re Ninth Circuit considered and has findings is following more of the one or see, jected past, e.g., claims in similar with approved in accordance made Guard, v. Cal. Army Holmes Nat’l regulations: forth in procedures set such (9th Cir.1997) 1126, 1136 (rejecting an F.3d (1) in, engaged That the member has challenge to Equal Protection Clause in, engage an- attempted to or solicited review); rational Phil DADT under basis in a act or other to homosexual (9th ips Perry, F.3d 1425-26 findings, are unless there further acts Cir.1997) (same); Middendorf, Beller v. with in accordance approved made Cir.1980) (9th (reject 805-12 procedures regulations, forth in set such process and substan ing procedural demonstrated the member has process challenges Navy reg tive due that— forbidding service ulation (A) from departure such conduct Navy). However, Major argues customary be- the member’s usual and Holmes, Philips, are no and Beller havior; dispositive light of Lawrence longer (B) conduct, all the cir- such under Texas, U.S. 123 S.Ct. cumstances, recur; unlikely is (2003), in L.Ed.2d 508 which (C) conduct was not accom- such down a Texas statute Court struck force, coercion, in- by use of or plished sodomy. Accordingly, homosexual banned timidation; appeal, must consider to resolve (D) particular circum- under prior prece of Lawrence on our the effect case, con- of the the member’s stances dents. forces is presence tinued the armed with the interests of consistent B proper discipline, good armed forces morale; order, and and Major first whether We assess (E) pro- not have a the member does standing this action. pursue has Witt in homosexu- engage or intent pensity minimum irreducible constitutional “[T]he al acts. standing contains three elements.

(2) First, an plaintiff must have suffered That the member has stated bisexual, legally in fact’—an invasion of a ‘injury a homosexual or or he or she is (a) effect, concrete is a interest which is protected to that unless there words (b) or immi actual finding, approved particularized, made and further ” nent, ‘conjectural’ ‘hypothetical.’ forth in not or procedures accordance with set Wildlife, has regulations, Lujan the member Defenders of 555, 560, not a 112 S.Ct. 119 L.Ed.2d that he or she is demonstrated (1992) (internal citations, footnote, and in, engages attempts who to en- person omitted). Second, in, plain in, engage quotation marks propensity has gage be- connection present acts. tiff must “causal intends to or injury Although and the conduct com has not tween the claims. she been dis- injury fairly ... plained formally, of—the has to be charged Major Witt suffered a challenged to the action cognizable injury traceable of her long- account defendant, not ... the result suspension. term to the addition loss of party independent action some third not points pay promotion toward and re- (internal quotation before the court.” Id. benefits, Major tirement Witt asserts omitted). Finally, “it marks and brackets declaration that her suspen- record ‘likely,’ opposed merely must as seriously sion being harmed her chances of ‘speculative,’ injury will be ‘re promoted to injury Colonel. This is suffi- ” favorable Id. at dressed decision.’ injury” cient to establish “actual for Article 561, 112 purposes. III Major There little doubt that However, the situation different meets and third requirements, the second Major for procedural process Witt’s due if requirement she can the first meet —an Major allege claim. Witt does that she are, injury actual from DADT. There how- deprived has been of life or a property ever, about questions whether she has suf- procedural process interest. Her injury pur- fered an III actual Article claim rests on her assertion her dis poses. Although Major Witt has been papers charge will reflect the reasons for suspended, board recom- discharge, her and that this in turn will discharge, Secretary mended her and the stigma. result in a The record indicates discharge, ordered her Witt will receive honorable formally discharged she has not been from discharge. We suggested have that an military, far as the record before us discharge honorable be stigmatizing could Accordingly, shows. of Ma- least some if prospective employers had some reason jor unripe they are Witt’s claims because to know the reasons for honorable rely which may may on harms not actu- Beller, discharge. See 632 F.2d at 807 States, ally occur. Texas v. See United (rejecting claim that an honorable dis 140 charge resulted in stigma because there (“A (1998) ripe L.Ed.2d 406 claim not is indicating was “no plain evidence adjudication for if it upon contingent rests tiffs’ likely service records to im [we]re may future events that not occur as antici- stigma pose upon them or make it more pated, may or not at indeed occur all.” for difficult them to post-discharge seek (internal omitted)) quotation marks employment”). However, the record does Major We conclude meets the not reflect what will appear on her dis III requirements and, thus, Article for her substan- charge certificate any whether process tive due and equal protection stigma will occur.3 Accordingly, the pro Major by 3. on a Witt relies number of cases that tected Fifth Due Amendment Process Clause.”); "suspension” Barchi, 55, 64, have support Barry involved her 443 U.S. 2642, liberty already (1979) ("[I]t claim that her has been violat 99 S.Ct. 61 L.Ed.2d 365 by suspension pending ed her a final dis property clear Barchi had a interest However, charge. all of those involved protection cases his license sufficient to invoke Mallen, Clause.”); property interests. See FDIC v. 486 of the Due Process United States v. 230, 240, 1780, U.S. 108 S.Ct. Ninety-Five Ivory 100 L.Ed.2d Carvings, Two Hundred (1988) ("It 850, (9th Cir.1982) ("Since undisputed appellee’s its sum right interest in the serve mary during period continue to seizure and the entire president participate delay, bank and Segal deprived of the in the has been of his right pro property property conduct of its affairs is a impartial hearing without an con sodomy. 539 U.S. consensual ripe for claim is process cedural so, 578, doing it also 123 S.Ct. 2472. at record because adjudication on Hardwick, 478 U.S. Bowers v. overruled may or asserts Major Witt injury that (1986), 2841, 186, 92 L.Ed.2d 140 106 S.Ct. Davis, 424 Paul See not occur. decision of the Court a 1986 1155, 47 L.Ed.2d 405 693, 96 S.Ct. Georgia criminalizing law upheld had “defamation, (1976) standing (holding sodomy. The Court in Law- consensual stigma-plus not suffice alone” does that “broad statements of the rence noted right “a or status claim; must be there the Due liberty reach of under substantive [that] state law recognized previously can found in earlier Process Clause” extinguished”). distinctly altered cases, including Society Pierce v. Sis- at this the claim to dismiss We hesitate 510, 571, ters, 69 L.Ed. 45 S.Ct. 268 U.S. however, the factual situa- because stage, Nebraska, (1925), 262 U.S. Meyer v. discharge surrounding Witt’s tion (1923), 625, L.Ed. 1042 43 S.Ct. of this changed in the course may have and, v. Con- pertinently, most Griswold proce- remand the therefore appeal. We necticut, 85 S.Ct. claim to the district process dural due (1965). Lawrence, 539 U.S. L.Ed.2d 510 court, can consider the the court where Griswold,” “After at 123 S.Ct. 2472. discharge with more of her factual details wrote, “it was established the Court current information. complete and regard- to make certain decisions beyond the extends ing sexual conduct Ill relationship.” Id. at 123 S.Ct. marital Major Witt’s substan To evaluate claim, we first must deter process

tive due Bowers, recog- the Court Turning to scrutiny to apply. proper level mine appreci- own failure to nized “the Court’s cases, rational we have previous at stake” ate the extent predecessor to DADT and review basis 2472. The Id. at that case. Holmes, See, 124 F.3d at e.g., policies. explained: 1136; How 106 F.3d 1425-26. Philips, in Bowers was say that the issue To ever, argues that Lawrence Major Witt in certain simply those cases estab effectively overruled in Bow- the Court did [as sexual conduct engage in lishing a fundamental the individual the claim demeans ers] The Air sexual acts. adult consensual forward, demean just as would put carefully consid Having disagrees. mar- were it to be said couple married arguments and the ered Lawrence to have right riage simply about requires that Lawrence we hold parties, The laws involved intercourse. sexual rational more than traditional something sure, are, stat- and here to be Bowers therefore that remand is review and basis more than to do no purport utes that appropriate. act. Their particular sexual prohibit have though, purposes, and penalties

A touch- far-reaching consequences, more human con- private Lawrence, ing upon the most struck behavior, duct, in the most that criminalized sexual a Texas statute down Here, right alleges only a to be seizure.”). Major Witt each cerning plaintiffs The occur, stigma may may not right free of property that was those had cases currently present. hearing. which is not delayed actively infringed the home. The stat- private places, promise “It is a of the Constitution that personal control a utes do seek to rela- there is a personal liberty realm of that, tionship whether or not entitled to which government may not enter.” law, recognition in the is within formal Planned Casey, Parenthood v. 505 U.S. liberty persons 833, 2791, choose without 847 [112 S.Ct. 120 L.Ed.2d (1992). being punished as criminals. The 674] Texas statute furthers no legitimate state interest which can Id. justify its intrusion personal into the The Court then discussed the reach of private life of the individual. decision, summarizing: 578, 123 Id. at S.Ct. 2472. This, rule, general as a should counsel State, against attempts by the or a B court, to meaning define the of the rela- Major argues Witt recog Lawrence tionship or to set its boundaries absent nized a fundamental to engage in injury a person or abuse of an institu- private, consensual, homosexual conduct protects. tion the law It suffices for us requires subject therefore us to acknowledge adults choose heightened DADT to scrutiny. The upon to enter this relationship in the argues applied only Lawrence confines of their homes and their own review, rational basis and that the Ninth private dignity lives and still retain their Holmes, Circuit’s decisions Philips, and persons. as free When sexuality finds Beller remain binding law on DADT’s va expression overt intimate conduct lidity. is, Because perhaps Lawrence in person, with another the conduct can be so, tentionally silent as to the level of personal but one element in a bond that scrutiny that it applied, both parties draw enduring. is more protected upon language from sup Lawrence that by the Constitution allows homosexual ports their views. persons to make this choice. argues “plain lan- Id. guage” of Lawrence demonstrates The Supreme provided Court then addi- heightened scrutiny required here. She why tional reasons it was overruling Bow- that, persons in deciding how to conduct their Court concluded: private in pertaining lives matters to sex.” right [Homosexuals’] to under protections” “Substantial are not afforded the gives Due Process Clause review, them the under rational basis right full their conduct argues, because rational review basis con- without government. intervention of the only siders whether challenged policy the state strict of review rationally legitimate related a ther the standard review.”). or the rational-basis standard of interest. a dis- The Seventh Circuit made similar Air that argues the Force response, In next claimer in the that the Air Force case only language” implies “plain the same discusses, Frank, Muth v. 412 F.3d 808 particular, review. In the rational basis (7th Cir.2005), which the issue addressed in Law- passage Air Force stresses the Muth, In only dicta. the court said: challenged that states the stat- rence legitimate no state inter- “furthered] ute litigants It well be that future the justify can intrusion into est which will insist Lawrence has broader individual,” personal private life implications challenges to other state (emphasis at criminalizing sexual laws consensual added). Force, legiti- According the However, conduct. because this case are the hallmark of rational mate interests review, only question here on habeas The Air also notes review. basis this court Lawrence before is whether it was that Lawrence never stated that a new laws proscribing announced rule anything other than rational basis applying prohibiting the for which Muth conduct concludes, review, so, the Air Force [, was convicted incest].

surely not. at 818. The court concluded that Law- Id. holding activity did not apply rence’s thus, question incest—and, did not — matter, Air Force preliminary As a scrutiny applied consider the level of no court to has held that argues that date Lawrence. Id. applied heightened level of Lam'ence Only appeals one of three courts of However, is more scrutiny. the situation that the Air Force claims to have “decided presented by the Air complex than question” actually has done so. this Although argues the Air Force Force. Secretary Department Lofton Article III decid- “every court to have Services, Family & 358 F.3d Children ap- question [whether Lawrence th[e] ed (11th Cir.2004), Eleventh Circuit plied heightened scrutiny], including three a law that homosexuals upheld forbade appeals, agreed with the District courts children, holding adopting explicitly from Court in this case that Lawrence did strict scruti- apply that Lawrence review, meaning rational-basis Otherwise, ny. our circuits are si- sister implicate case did not a fundamental lent. it, that is not case. As we see right,” only appeals directly court of has con- one directly we consid- previously Nor have sidered the issue. implications of Lawrence. ered District, 427 case that Air Force claims v. Palmdale School

The first Fields (9th Cir.2005), noted question,” Sylvester Fog we “decided (8th Cir.2006), privacy “encompasses is dis that the ley, 465 F.3d However, (Citing Law- length intimacy.” in its brief. of sexual cussed rence.) However, explicitly declined to ad we concluded Eighth Circuit Fields, survey of ele- Sylvester. id. at 858 action at issue dress issue See (“[W]e Syl included mentary need not determine whether school children sex, relating not interfere protected questions sexual conduct is did vester’s parents make intimate privacy right because we with the fundamental ap- did not applying Accordingly, the same ei- Id. would reach result decisions. Lawrence, ply whatever level of scruti- ation of might “additional factors” that ny might require.4 it justify the policy, might which be viewed corollary as a requirement that a other court of note has considered One challenged policy “compelling” serve a implications of Lawrence. United “important” government interest under (C.A.A.F. Marcum, States v. 60 M.J. 198 heightened traditional forms of scrutiny. 2004), the Appeals United States Court of for the Armed Forces considered a chal- With this background, mixed we now lenge sodomy to an Air Force law brought turn analysis to our of Lawrence. by a serviceman who had been convicted of sodomy

consensual a man with of inferior rank within chain his of command. That parties urge The pick through us to application court concluded that of Lawrence with a fine-toothed comb and to Lawrence must be “in addressed context give credence to particular turns of through challenge.” and not a facial Id. at phrase by Supreme used Court that concluded, the court did support given best their claims. But identify right; however, a fundamental studied limits of analysis the verbal in required it “searching constitutional inqui- Lawrence, approach is not conclusive. ry.” at Id. 205. The court distilled this Nor a does review of our circuit precedent inquiry three-step analysis: into a question; answer the Ap as the Court of

First, was the conduct that the accused peals for the Armed Forces stated in Mar guilty committing found of a na- cum, 204, “[although 60 M.J. at particular bring ture to liberty within the inter- Supreme sentences within the Court’s est by identified Court? opinion may be culled in support of the Second, encompass did the conduct any argument, Government’s other sentences behavior or by factors identified the Su- may be support Appellant’s extracted to preme analysis Court as outside the argument.” ambiguous these circum Third, Lawrence? are there additional stances, analyze we Lawrence consider factors relevant solely did, ing what actually Court rather environment that affect the nature and than by dissecting pieces isolated of text. reach of the Lawrence interest? doing, In so conclude applied (citation omitted). heightened level of scruti Id. at 206-07 in ny Lawrence. The Appeals Court of for the Armed Forces, view, in our heightened cannot We reconcile what the Supreme scrutiny. level of By considering whether Court did Lawrence with the minimal the policy applied properly to a particular protections afforded traditional rational litigant, rather than First, whether there was a basis review. the Court overruled permissible application statute, Bowers, an earlier case which the Court court necessarily required upheld more than had Georgia sodomy law under hypothetical justification policy- for the rational basis review. If the Court was —all is required under rational review, basis re- undertaking rational basis then view. required The court also consider- Bowers must have been wrong because it that, However, 4. The Air Force states Judge Hensala v. only partial Tashima wrote Force, Department (Ta- the Air 343 F.3d 951 dissent in that case. See id. at 959 n. 1 (9th Cir.2003), shima, J., Judge dissenting Tashima held that Law- part). panel ma- closely point” rence and jority Holmes "are not held that it need not reach the issue. so that "Holmes (majority opinion). remains the law of the land.” Id.

817 620, Evans, standard; it Romer v. 517 U.S. 116 namely, S.Ct. failed under (1996), reasonably 1620, “any conceiv- 134 L.Ed.2d 855 which the must have lacked provide that could a state facts rational basis review to a able Court Instead, the classification.” FCC rational basis for the concerning law homosexuals. Inc., Commc’ns, 508 U.S. v. Beach Court overturned Bowers because “[i]ts 211 L.Ed.2d S.Ct. continuance demeans the precedent as (1993). criticism of Bow- the Lawrence, But Court’s persons.” lives with the basis for the nothing ers had to do 575, 123 2472. 539 U.S. at S.Ct.

law; instead, rejected the Bowers Court Third, Court’s rationale the Lawrence ap- own failure to of the because “Court’s analysis that it holding inquiry for —the liberty at stake.” preciate the extent of with applying was inconsistent rational —is Lawrence, at 123 S.Ct. 539 U.S. declared: review. The Court “The basis the Court in Bowers The criticism that legitimate Texas furthers no state statute “the extent of the misapprehended had justify interest can its intrusion which liberty at does not sound rational stake” personal private into life of review, rational basis Under basis review. 578, 123 individual.” Id. at governmen- whether the Court determines added). (emphasis apply- Were Court that a arbitrary tal action rational is so review, ing rational it would not iden- basis for the action cannot even be con- basis tify legitimate “justify” a state interest to If post applying ceived hoc. the Court liberty particular intrusion of at issue judicial re- paradigm standard —“a Lawrence; liberty in- regardless straint,” Beach, 508 U.S. at 113 S.Ct. volved, any rationale hypothetical for the 2096—it no reason consider had law would do. did, liberty extent of the involved. Yet ultimately concluding that the ban on ho- We therefore conclude that Law sought mosexual sexual conduct to “control applied something more than tradi rence that, relationship or personal whether This tional rational basis review. leaves recognition not to formal in the entitled open question ap whether Court law, persons is within the scrutiny, intermediate plied scrutiny, strict being punished choose crimi- without scrutiny. level of heightened or another Lawrence, nals.” typically ap process Substantive cases due ra- S.Ct. 2472. This is inconsistent with of a ply strict in the ease funda tional basis review. mental and rational basis review all other a fundamental cases. When

Second, the Supréme the cases on which process for recognized, is substantive explicitly Court based its decision in Law all, of that “at infringement bids scrutiny. heightened rence are based process provided, no matter what unless out, cases pointed As those infringement narrowly tailored to Griswold, Roe, Carey. include More interest.” Reno over, compelling serve state Casey, post- stated that Flores, 292, 301-02, decision, holding Sowers east its in Bowers (1993) 1439, 123 (emphasis omit L.Ed.2d into doubt. 539 U.S. at ted). scrutiny, New such Notably, the Court laws survive 123 S.Ct. 2472. did However, likely DADT not.5 post-Bowers mention or se most would apply ca presence of persons armed forces 5. The DADT is found at 10 in the rationale 654(a)(15), propensity § Congress’s who intent U.S.C. which states demonstrate would finding acts create in homosexual that: scrutiny apply theory we strict when that we are bound hesitate or reason did not discuss narrow case, Court ing underlying not compelling state interest tailoring or a just by holding). recognized its The Court Lawrence, and we do not address the issue a “significant” liberty interest —the inter here. “in avoiding est the unwanted administra antipsychotic drugs” tion of balanced

Instead, we look to another recent Su —and liberty against interest the “legiti preme applied height Court case that “important” mate” and state “in interest scrutiny ened level of to a substantive providing appropriate medical treatment scrutiny that process claim—-a resembles to reduce the danger an inmate suf analysis expands upon performed fering from a serious mental disorder rep States, Lawrence.6 Sell United Sell, resents to himself or others.”7 539 539 U.S. 123 S.Ct. (internal quota U.S. at S.Ct. (2003), L.Ed.2d 197 the Court considered omitted). tion marks To balance those two permits gov whether the Constitution interests, required the Court the state to forcibly antipsy- ernment administer justify its intrusion into an individual’s rec drugs mentally-ill chotic to a defendant ognized liberty against interest forcible competent order to render that defendant just trial. as Lawrence determined stand The Court held that the medication — the state “significant “justify defendant has a had failed to constitutional ly liberty stake, intrusion protected personal private interest” at into the life so drugs could of the individual.” forcibly be administered 578, 123 “only medically if the treatment is 2472. appro S.Ct.

priate, substantially unlikely is to have heightened scrutiny may side effects that undermine the fair First, Sell consisted of four factors: and, trial, taking ness of the account of court important govern must find that alternatives, necessary less intrusive is sig mental interests are at stake.... nificantly important governmen to further Courts, however, tal must consider trial-related interests.” Id. at 2174(internal facts of the individual case in quotation evaluating marks omitted). Special Government’s interest.... impor- circumstances lessen the Although the Court’s holding Sell is tance of that interest.... specific forcibly the context of adminis- medication, tering Second, the court employed must conclude that by the Court to reach that holding involuntary is in- medication will significantly Gammie, structive. See Miller v. 335 F.3d those concomitant state inter- further (9th Cir.2003) (en banc) 889, 900 (holding .... ests unacceptable high risk to the inquiry standards of 7. This is similar to intermediate scru- morale, good discipline, order and and unit tiny equal protection Craig cases. See cohesion that are the essence of Boren, 190, 197, capability. (1976) (“To L.Ed.2d 397 withstand constitu- challenge, by gender tional ... classifications Although agree with the Eleventh Circuit important governmental objectives must serve apply Lawrence Court did strict substantially and must be related to achieve- view, Lofton, scrutiny, 358 F.3d at in our objectives.”). ment of those appreciate Eleventh Circuit failed to both recognized by interest Lawrence heightened-scrutiny and the balancing em- ployed by Lawrence. addition, we Third, conclude that hold the court must analysis necessary heightened scrutiny as-applied involuntary medication is preferred court must facial. “This those interests. The rather than further alternative, any adjudication less intrusive course of since it enables find unlikely unnecessarily are to achieve sub- making courts avoid treatments stantially judgments.” City the same results.... broad constitutional of Inc., 473 Living Cleburne v. Cleburne Ctr.

Fourth, ... court must conclude the 432, 447, 105 S.Ct. L.Ed.2d U.S. 87 drugs is medi- administration of the that (1985). Cleburne, em 313 In the Court appropriate. ... cally ployed “type of ‘active’ rational basis 180-81, 2174. The at 123 S.Ct. Pruitt, 1165-66, review,” in 963 F.2d at the specific factor is medical fourth zoning ordi requiring city justify the Sell, three factors of but the first context in specific plaintiffs nance as to the thus equally here. We take our apply courts to required that case. And Sell from the Court and direction “consider facts of the case the individual heightened-scrutiny the first adopt three interest.” evaluating the Government’s heightened scrutiny as the bal- Sell factors 180, 123 2174. Under 539 U.S. at analysis under Lawrence. ancing required review, we must determine not wheth government that when the at- We hold hypothetical, posthoc some er DADT has personal intrude the tempts upon general, rationalization but whether homosexuals, of in a manner private lives justification application for of exists the implicates rights that the identified This applied Major the Witt. policy Lawrence, government the must advance necessary meaning approach give interest, governmental the important an the that “lib Court’s conclusion significantly must further that intrusion to adult erty gives protection substantial interest, must be intrusion neces- deciding how conduct their persons in further sary to interest. other pertaining in matters to sex.” private lives words, factor, the third a less intrusive 2472. U.S. at 123 S.Ct. 539 unlikely must be to achieve sub- means stantially government’s interest. See holding We also conclude that our State, Sec’y Aptheker also of Beller, predecessor that a 500, 508, 84 S.Ct. L.Ed.2d heightened to DADT survived scru- policy (1964) (“Even governmental though Clause, is no tiny the Due Process under substantial, legitimate be purpose longer good law.8 cannot be purpose pursued means Beller, n. we 632 F.2d at 807 broadly personal stifle fundamental liber- “[t]he narrowly applied heightened scrutiny the end more because ties when can be (internal all-or-nothing pro of due marks omit- kind substantive quotation achieved.” think, ted)). not, re- approach ... we d[id] cess ("Neither Gays High Gays, High Tech 895 F.2d at 572 observation in Tech Our Def. Security Office, Army, Hatheway Sec’y 895 F.2d [v. Ind. Clearance Beller nor 1990), (9th 1981),] Cir. “Beller has since been (9th authority binding Cir. F.2d 1376 Hardwick,” not [Bowers v.] overruled does scrutiny regarding heightened for clas on us inquiry. Bel our Beller Bowers overruled end homosexuality.”). But based on sifications heightened scrutiny. See ler’s invocation necessarily hold Bowers alter Seller's did Bowers, 478 U.S. at regulation ing at issue survived heightened scrutiny 2841(rejecting for classi scrutiny. heightened homosexuality); based on see also fications adopt today, of the complexity explicitly fleet Court’s Belief de [due We reasoned process] analysis.” perform as-applied clined to analysis. that, acknowledged analy We “[u]nder process substantive opinion, sis described in our individual regulation government involves a treatment might some circumstances balancing of the case-by-case nature of required by process, substantive due allegedly de infring- the individual interest ed, pending government balancing on the outcome importance furthered, degree of in- test.” Id. at 20. But interests 808 n. we refused to sensitivity fringement, apply individual treatment because of “the entity government responsible for the impracticality relative th[at] time of regulation carefully tailored al- to more achieving goals by regu Government’s achieving goals. of ternative means precisely lations which turn more on the facts of an individual case.” Id. at 810. recognized at Id. 807. We “that there refusal an perform as-applied Belief’s substantial academic comment which [wa]s balancing clearly test is irreconcilable with argue[d] that choice to in engage the ho- balancing analysis the personal individualized re mosexual action is a decision enti- tled, instances, quired at in under and recogni- least some 5865 Cleburne Sell.9Bel tion heightened scrutiny analysis as fundamental and to full ief’s protection aspect holding as individual’s effectively therefore have been privacy.” of Id. at 809. But we held by intervening overruled Supreme Court of importance government that “the the Miller, authority.10 See 335 at F.3d 900 ... outweigh[ed] (“We interests furthered what- hold that issues the decided the heightened ever solicitude is appropriate higher court need not be identical in order for private consensual homosexual con- Rather, to be controlling. the relevant duct.” Id. at 810. court of last resort must have undercut the theory heightened or

Although reasoning underlying prior the em the ployed prescient circuit precedent way Beller was of in such a Law rence, Sell, and three factors that clearly the cases are irreconcilable.... In fu Navy Better’s conclusion individualized deter- Better tension was between “impractical” mination were at that time has known homosexuals and other members who placed question by also since been into (Internal despise/detest homosexuality.” quo Appeals Court of Armed Forces’ deci- omitted.) tation We marks held that "[t]his Marcum, sion in where court held that the justification accepted in Better ... should not application of Lavwence must be addressed given today be effect unexamined as a matter through "in context and not a facial chal- of law” because it was inconsistent with the lenge.” Although at 206. 60 M.J. Court’s decisions Palmore v. Sido panel, not bind our court’s decision does it is ti, 429, 1879, 466 U.S. S.Ct. 104 80 L.Ed.2d telling that the Marcum court did not find it Cleburne, (1984), 432, 421 105 "impractical” particularized to consider " facts ‘[p]rivate S.Ct. may biases be Henry, each case. See 425 Middendorf law, outside the reach but the law 47 S.Ct. L.Ed.2d 556 cannot, directly indirectly, give them ef (1976) (noting military judgments courts’ ” Pruitt, (quoting fect.' at 1165 Pal normally great "are entitled to deference” more, 1879). U.S. at How "[d]ealing peculiar when with areas of law ever, Better, that, Pmitt noted "we held that branches.”). grounds there were reg several on which the Pruitt, upheld,” ulation could be intervening Supreme F.2d at 10. Other Court deci 1164, only impacted by sions one of which was have also weakened the rationale of Pruitt, Cleburne, Better. F.2d at Palmore and so Pmitt we noted does not end justifications inquiry. "one of the offered our against irreconcilability, appropri- a DADT measured clear cases of such ture constitutional standard. this court and district ate three-judge panel of bound should consider themselves courts authority and intervening higher

by the IV court as prior opinion reject next turn to Witt’s We overruled.”). effectively having been claim. ar Equal Protection Clause She Here, heightened equal protection scru that DADT violates gues applying mandatory the Air Force has a DADT because tiny light current in ho gov discharging clear that the rule those who precedents, it is important govern mosexual activities but not those “whose advances an ernment among also cause discomfort presence DADT concerns mental interest. members,” military, “judicial such child mo management other service However, Philips clearly held congressional to ... exercise lesters. deference equal protec DADT violate authority legislative when does not apogee at its review, authority to under 106 F.3d congressional under tion rational basis action holding rules and that not dis armies and make support raise Lawrence, governance by is which to regulations their turbed declined and for equal protection, 453 see at challenged.” Goldberg, address 539 U.S. Rostker 2646, 574-75, 57, 70, 2472(declining to reach 69 L.Ed.2d 478 S.Ct. 101 S.Ct. (1981). and, protection argument in Notably, equal “deference does the stead, “Congress, addressing Id. “whether Bowers itself mean abdication.” course, validity”). af continuing the We thus subject requirements ha[d] is to Major firm the district court’s dismissal of legislating the Due Process Clause when ” equal protection claims. military in the area of affairs.... Weiss Witt’s States, 176, 510 U.S. v. United (1994). 752, 127 L.Ed.2d V posed by might

However, the rec The issues case it is unclear on DADT, those generate great concern both from before as ord us whether Major par- continued Major Witt, and who welcome Witt’s to satisfies the second in the Air Force and from those attempts ticipation to third factors. The be, may oppose it. Those issues must by relying congres the who justify policy been, in- have addressed the first findings regarding “unit cohesion” and sional like, by military the communi- wheth leaders of go and the that does not stance but Congress law- ty by DADT and those with application specifically the er responsibilities. Congress’s All of gov making Major significantly Witt furthers Con- and intru laws must abide United States interest whether less ernment’s stitution, Taking direction from substantially the however. means would achieve sive Supreme decided in Law- there what the Court government’s interest.11 Remand Sell, DADT, and hold that after required the district court rence we fore is satisfy an intermediate Major sub must develop record on Witt’s under substantive due then can level of Only due claim. process stantive Indeed, discharge proceed- alleged Major initiated until the facts as then, and, even was her contrary. Major ings under DADT Witt was a mod- indicate DADT, pursuant suspension not her homo- el officer sexual activities hundreds whose sexuality, damaged unit away unit cohesion. base did not affect her miles from Flores, requires inquiry an facts not 507 U.S. 113 S.Ct. process, (1993). 1439, 123 us. L.Ed.2d on the record before present Substantive Due Process light foregoing, VACATE opinion majority correctly recog- As the REMAND court’s judg- the district nizes, Court’s opinion regard with Witt’s substan- ment Lawrence unambiguously never states procedural process claim due tive what standard of review it is applying. claim, regard and AFFIRM with process The Lawrence opinion leaves no doubt equal clause claim. The protection to the all, however, importance about ap- shall bear own costs on parties their protecting. discussing it is peal. Hardwick, flaws of Bowers v. 478 U.S. (1986), 106 S.Ct. 92 L.Ed.2d 140 CANBY, concurring in Judge, Circuit overruling, which it was ex- Lawrence part dissenting part: plained: majority opinion The has written say To the issue in Bowers very praiseworthy goes. far as it I simply certain I I II. also concur in concur Parts sexual conduct demeans the claim III, portion first of Part to the end of forward, just individual as it would put (1). that, Beyond agree I subdivision sub- demean couple a married it to be were stantially majority’s with the discussion marriage simply said about the leading to the conclusion to have sexual intercourse. laws Texas, in Lawrence v. are, involved in Bowers and here to be (2003), L.Ed.2d sure, that purport statutes no do something rigorous than more tra- more prohibit particular than sexual rational review in striking ditional basis act. penalties Their and purposes, down Texas’s criminalization of sexual re- though, have more far-reaching conse- of lations between members the same sex. quences, touching upon private the most Finally, agree I that the district court conduct, behavior, human sexual in dismissing complaint erred the for fail- private places, the most of the home. process ure to state a substantive The per- statutes do seek to control a claim, and that remand that, we must for fur- relationship sonal whether not proceedings. majority, ther Unlike the entitled to recognition in the formal however, law, I would also reverse the dismiss- is within the liberty persons to of of equal protection al the claim. But choose being punished without as crimi- majority I differ most the where from is in nals. scrutiny level of be applied

the to to both This, rule, general as a should counsel view, In my claims. the so-called “Don’t against State, the or a attempts Ask, statute,1 § Don’t Tell” 10 U.S.C. court, meaning to rela- define subjected be scrutiny. must to strict Un- tionship or to set boundaries absent standard, der that Force must injury person to a or abuse an institu- of demonstrate that the statute’s restriction tion protects. the law It us suffices for liberty, of and its adverse classification of to that acknowledge adults choose homosexuals, “narrowly are tailored upon enter this relationship in the a compelling serve state interest.” Reno confines of their homes and own their tell, alleged complaint, 1. Under applied Major the facts mer as Witt. She did not popular appears statute’s name to be a misno- but the Air Force asked. 2254(d)(1). present § In the con- dignity retain their U.S.C. and still private lives sexuality text, enough question finds it is that the an persons. as free When intimate conduct expression majority overt open opinion recog- one. theAs the conduct can be person, seems) with another nizes, (carefully, avoids it Lawrence personal in a bond but one element stating of review what standard the Court liberty protected enduring. is more Certainly nothing' applying. in Law- allows by the homosexual Constitution reasonably forbidding can read as rence be make right to this choice. persons the scrutiny to statutes application of strict Lawrence, attaching consequences severe homosex- added). points shine forth (emphases Two question of stan- ual behavior.2 The context in Law- this and its passage from case is an scrutiny dard of therefore first, engage to choose to right rence: one, it must address accord- open we sexual relations with private, consensual understanding our indi- ing to best right of the first another is a human adult rights govern- vidual constitutional and, second, right firmly pro- order For mental action involved.3 reasons that guarantee pri- tected the substantive from already apparent my quo- should the Due Process vacy autonomy of — tation and I have discussion Thus, though the did even Clause. concluding difficulty no expressly characterize relationships “fundamental,” certainly it as it treated private conduct is a person- related sexual treatment, and impor- It such. is this order, and high al of a constitutional recog- values of tant individual Ask, Don’t Tell” statute so “Don’t nizes, scrutiny gov- strict require relationship and conduct penalizes right. ernmental encroachment subjected scrutiny. that it to strict must be view, therefore, Lawrence itself man- my Ask, strict “Don’t dates Equal Protection Don’t Tell” statute. equal protec- presented scrutiny, howev- apply order to strict court, claim the district but ac- tion er, satisfy do ourselves that not need a claim was knowledges here that such expressly adopts Lawrence commands Philips Perry, v. rejected by court in our review. We are not re- standard of Cir.1997). (9th Although 106 F.3d 1420 conviction, criminal where viewing a state it before our three- pursue she does not are the Antiterrorism and forbidden her preserve right to judge panel, she does Act Penalty applying from Effective Death event she en assert the claim in the seeks unless it has been a constitutional standard decision; she of our has Supreme Court. See 28 banc review determined Middendorf, 812 e.g., Beller 632 is to be v. regard, 2. Lawrence contrasted discrimination, (9th 1980) gender (upholding Navy policy where of dis with Cir. cases expressly specified an Court has though regulation charging even homosexuals Craig of review. v. standard See intermediate necessary”); "perhaps broader than 190, 197, Boren, 429 U.S. Guard, Army v. Nat'l 124 F.3d Holmes Cal. (1976). L.Ed.2d 397 Cir.1997) (9th (upholding 1132-36 Ask, equal policy "Don’t Don’t Tell” under following explained in the sec- 3. For reasons review); Philips v. protection rational basis regard equal protection, I do not our tion on Cir.1997) (9th Perry, 106 F.3d 1425-29 applying precedents earlier lesser standards (same). against scrutiny discrimination See, binding after Lawrence. homosexuals as strict scrutiny equal protection abandoned the claim.4 under anal- ysis, and both should be followed in this I that Philips do not ties our believe case. rational basis re Philips hands. attack on equal protection

view to an path scrutiny most direct to strict Ask, policy Navy. Tell” “Don’t Don’t equal the statute protection under authority It did on the of our earlier so principle is to hold that classifications dis- Gays High decision Tech criminating against homosexuals are “sus- Defense Security Office, Clearance Industrial 895 pect,” like classifications based on race. (9th Cir.1990). Philips, F.2d 563 See 1, 11, See Loving Virginia, however, Gays, F.3d at Tech High (1967) (sub- 18 L.Ed.2d that it proposition based on the would jecting miscegenation race-based statute to scrutiny strict inappropriate apply strict scrutiny Equal under the Protection targeting Clause). classifications homosexuals when I long have been convinced that had held in Bowers against classifications homosexuals are could homosexual conduct be made a sense, suspect in the equal protection but I High Gays, crime. See Tech 895 F.2d at was persuade majority unable to my (“[I]f fundamental there is no colleagues to embark on en banc review to sodomy ... homosexual see establish proposition. High See Tech Hardwick, ... it [Bowers would be v.] Gays v. Security Industrial Clear- Defense incongruous ... find a fundamental (1990) Office, ance 909 F.2d at 376-80 right of conduct under J., (Canby, dissenting from denial of re- equal protection component of the Due banc). hearing en As I have already ex- Amendment.”). Fifth Process Clause of the plained, however, overruling of Bowers unequivocally Because Lawrence overruled by Lawrence High has undermined Tech Bowers, theory [and] “undercut rea Gays. We are accordingly free to revisit soning High Tech underlying” Gays and question whether adverse classifi- Philips way “in such a that the cases are cation of is “suspect” homosexuals under Gammie, clearly irreconcilable.” Miller v. equal protection analysis. My reasons Cir.2003) (9th (en banc). 335 F.3d concluding that such classifications are I am therefore that Philips convinced is no suspect are out in fully my set dissent longer controlling.5 from denial of High en banc review in analysis Gays,

An Tech equal protection and I will not applying belabor the Ask, strict matter say to the “Don’t Don’t here. it to Suffice that homo- accordingly Tell” open statute is sexuals “experienced history us. have pur- approaches poseful There are unequal two different treatment been [and] sub- urge upon 4. Witt does us a right different their to constitutional intimate homosex- equal protection kind of claim. She contends ual relations should treated at least as well equal protection the Air Force violates as child molesters. requires discharge because it automatic of sexually ground active on homosexuals Guard, Army In Holmes v. Nat'l Cal. 124 they are to some offensive members of a 1126, (9th Cir.1997), ap- 1132 we also unit, offensive, equally while others plied reject equal rational basis to review an molesters, such as child are categorically not protection challenge component to a 36-3209, subject discharge. to See AFI Ask, policy, “Don't relying Don't Tell” on ¶ majority, 2.29.10. Like the I find it unnec- Philips High Gays. Tech For the reasons essary argument. to address this I also con- discussed, just overruling Lawrence's of Bow- accomplish clude that it would too little to ers undermines Holmes as well. persons availing establish that themselves of any legislation supported would have on the basis of jected unique disabilities to truly path indic- a its invali- not standard of review as to stereotyped characteristics Lawrence, Bd. Ret. Romer, Mass. their abilities.” like does not ative of dation. of 313, 307, 96 S.Ct. 427 U.S. Murgia, v. scrutiny, of application forbid the strict (internal (1976) quo- 2562, L.Ed.2d 520 have that level though even found omitted). They also “exhibit tation marks unnecessary scrutiny of to invalidate immutable, obvious, distinguishing char- or legislation the Court in that case. before aas discrete that define them acteristics suspect In of a addition to avenue minority.” they Lyng a group; and are [ ] classification, path there is another 638, Castillo, 635, S.Ct. scrutiny equal under anal protection strict (1986). short, L.Ed.2d 527 on a ysis. impinge Classifications that deserving protection of group are a they right subject are to strict fundamental an against prejudices power scrutiny challenged as a violation when majority. often-antagonistic See, equal protection. e.g., Dunn v. Blum decision Romer The Court’s stein, 330, 337-39, 92 S.Ct. 405 U.S. Evans, 517 U.S. S.Ct. (1972). already I have 31 L.Ed.2d 274 As (1996), a is not a barrier to L.Ed.2d 855 effectively establishes explained, Lawrence classification, scrutiny ap- strict suspect it. right labeling without a fundamental so case, the Court proach. struck least, very At the Lawrence leaves provision a constitutional down Colorado recognize question open, permit us things, any prohibiting, among other anti- rela right the fundamental legislation protecting homo- discrimination already must. tions as I have insisted we Id. at 116 S.Ct. 1620. sexuals. justifies Even strict though that most laws Supreme Court noted theory a under substantive that, if fun- a classification and no involve adding process, good there are reasons for involved, suspect class damental analysis case. equal an in this protection subject rational only are basis statutes that, It is true 1620. The Id. at review. equal pro employ not to an elected provi- that the Colorado Court then stated 574-75, 123 theory. tection sion however, that recognized, It S.Ct. 2472. defies, fails, this convention- indeed even basis protection a “tenable” equal provided First, amendment has inquiry. al invalid, and con the statute declaring imposing peculiar property recognizing ceded decision that a disability and undifferentiated broad interest certain conduct advanced exceptional named an single group, process. as well as due equality cause and, invalid form of explain, as we shall why 575, 123 2472. The reason Id. at legislation. employ did not the Court in Laivrence (emphasis 116 S.Ct. 1620 add- Id. at analysis protec itself equal protection ed). need ad- Thus the Court had no it would tive. stated that The Court homosexuals constituted dress whether intimate sufficiently establish provi- class the Colorado suspect because only equal protec if relations “even” rational basis review. sion failed invoked, might a state tion because were application ruling negate That does not by denying heterosexu frustrate the of clas- higher of levels similar to als as well as homosexuals Indeed, strong language of sifications. id. relations. See invidiousness of non-marital sexual suggests that the Romer remedy inquiry an the clear of end-run of should address dis- danger The case, our is not severe in equal treatment crimination between homosexuals and het- erosexuals, that the armed services however. I doubt and determine whether that respond to an invalidation of likely are necessary discrimination serve com- Ask, Don’t Tell” as a the “Don’t statute governmental pelling sweeps interest and. decreeing protection by equal violation of broadly necessary. no more than member, discharge any of the automatic Inquiry of in Further Proceed- Order homosexual, is found heterosexual or who ings in sexual relations outside engaged to have event, any guard marriage. we can inquiry on should remand focus first against any by retaining result our such Air justification on the Force’s for its im- process analysis along substantive due pingement private on the intimate approach. an equal protection with compelling sexual relations and the nature by that including equal pro- any interest that is served meas-

The reason for very required is that clear Air be analysis tection there is a ure. The Force should whole identify element of discrimination interest with compelling suffi- Ask, apparatus, Tell” and an “Don’t Don’t specificity cient so that the relation be- equal analysis inqui- protection focuses Ask, tween the “Don’t Don’t Tell” statute ry question that not be sharply on a should policy and that can be evaluated. It is ignored: compelling of the what interest goal if accomplish difficult the com- narrowly by discharg- served Force is pelling broadly interest is as stated as ing but not others who en- homosexuals military” or, “management say, duty, relations off gage privately in sexual Moreover, “winning wars.” under strict base, persons off and with unconnected to scrutiny, it is not enough the interest It military? is no answer to such a merely challenged leg- “served” question presence the known of a islation; the legislation necessary must be sexually military homosexual in a active purpose, sweep to that and must no more (if necessarily unit creates sexual tensions than broadly gov- is essential to serve the shown), indeed that could be were unless Dunn, purpose. ernmental See U.S presence also demonstrated 351-52, 345-46, 92 S.Ct. 995. military in a unit created no heterosexuals Thus, process, as a matter of due the Air comparable It is also not suffi- tensions. can be required why to show there many cient military personnel answer compelling discharge ais need to homosex- against are biased homosexuals. See sexually uals who have been active outside (9th Cheney, 963 F.2d Pruitt v. duty persons of their station with uncon- Sidoti, Cir.1992); Palmore see also military why nected the meas- 80 L.Ed.2d adopted narrowly ure it has (1984) tailored to (“The Constitution cannot con- compelling the satisfaction of that need. prejudices trol such but neither it to- can equal protection, As a matter of the Air lerate them. Private biases be out- Force can be what law, compel- asked show side the reach of the the law but cannot, ling narrowly treating need is indirectly, them served directly give effect.”); Romer, sexually homosexuals who are active off 517 U.S. at duty military outside S.Ct. 1620. There are other context dif- requirements tailoring ferently from who are apply narrow would dur- heterosexuals sexu- ing ally duty further strict active off proceedings applying and outside scrutiny, point part requirements but the now is that context. These are case- order, it must be alleged high tutional of a they reflect the specific just outstanding her for the ser- Major protected all of conducted facts that Witt Witt, off-base, Major member but also for partner vice like with female relations her run-of-the-mill airman or It is be in or the soldier. partner alleged not to and her was of statute military. general application Air thus the the by If the employed the the Air generic the to the service member that requirements, Force cannot meet these to required justify. Force must appli- in such be must be invalidated statute all, after the cations. any- as to struck down the statute advantages are to address- There clear conduct; it engaging one in homosexual first, justifications Air be-

ing the Force’s necessary or to not find it relevant did personal the charac- any inquiry fore into inquire into whether the individual conduct Major in her and situation Witt teristics petitioners which the had been convicted First, the Air to requiring unit. interests was more less offensive the as requisite showing the a threshold make of its of the State under the circumstances may case. matter end the occurrence. Second, inquiry directed toward Conclusion potentially disruptive Air Force less majority represents a con- and, opinion The Major on Witt than a focus herself just a scientious effort to reach result allegedly atti- particularly, favorable case, and with of its agree I much part of other mem- tude toward her on the however, conclude, I Air analysis. require her To unit members bers of unit. the “Don’t Force must demonstrate that concerning testify or submit affidavits Ask, require- Tell” meets Don’t statute degree they or do not which do ments of strict is neces- adversely affected consider themselves —that governmental known, sary compelling to serve a sexually active presence sweeps no interest and that it more broad- homosexual, may constitute a distraction ly necessary. than I also conclude that It is to em- regular from duties. better required Air Force must be to do so only resort.6 inquiry such a last ploy process of both substantive due purposes justify Finally, requiring the Force to respect- I equal protection. therefore generic application of the statute to majority from fully part dissent member carries on a homosex- service who opinion. relationship away intimate ual conduct duty personnel

from the station constitu-

provides protection more Be-

tional set forth Lawrence. choose

cause the conduct a eonsti-

private, intimate sexual reason, developed accept cerning Major I Witt that need to be 6. For this even if were to scrutiny, point her rela- majority's would mod- at that are that standard of I tionship off-duty, away from ify its remand now directed carried instructions person determining military premises, application "the with unconnected whether Major significantly military. Air Force must then specifically to to the The DADT apply government’s necessary Supra why demonstrate it is furthers the interest....” begin by member in those circum- p. proceedings statute to service 821. Further should impor- details of Witt’s indi- requiring the to show what stances. Further Air Force left to the governmental significantly fur- vidual would best be tant interest is circumstances end, unnecessary. only facts con- thered the statute. notes First, explained, ers. the Court Bowers Griswold, 479, Court relied on 381 U.S. predicated was on the erroneous belief Wade, S.Ct. Roe v. 410 U.S. homosexuality “subject to state (1973), 35 L.Ed.2d 147 and Car- throughout intervention history ey Population International, Services Western civilization.” Id. at 123 S.Ct. 52 L.Ed.2d 675 2472(internal omitted). quotation marks (1977), all of which are rights fundamental Second, logic Bowers “demean[ed] cases. She also observes that the lan- persons” the lives of homosexual and had guage of Lawrence emphasizes the impor- widely rejected by been state courts and tance of the at issue and refers to international tribunals. Id. at protections” “substantial afforded “adult S.Ct. 2472.

Case Details

Case Name: Witt v. Department of the Air Force

Court Name: Court of Appeals for the Ninth Circuit

Date Published: May 21, 2008

Citation: 527 F.3d 806

Docket Number: 06-35644

Court Abbreviation: 9th Cir.