May 21, 2008
06-35644
The court of appeals reversed in part and affirmed in part a judgment of the district court and remanded. The court held that the military?s ?Don?t Ask, Don?t Tell? policy permitting discharge on account of homosexual activity must satisfy an as-applied intermediate level of scrutiny under principles of substantive due process.
Air Force Major Margaret Witt served in the air force as a nurse since 1987 and became a major in 1999. Witt transferred from active to reserve duty in 1995 and was assigned to McChord Air Force Base in Tacoma, Washington. By all accounts, Major Witt was an outstanding air force officer and received many medals and service awards.
Witt was in a committed and long-term relationship with another woman from July 1997 through 2003. Her partner was never a member or civilian employee of the armed forces, and Major Witt stated that she never had sexual relations while on duty or on the grounds of any air force base. She and her partner shared a home about 250 miles away from the McChord base. While serving in the air force, Witt never told any member of the military that she was homosexual.
Following an investigation in 2004, Witt was informed that her superiors were initiating separation proceedings against her on account of her homosexual activity. At this time, she was less than one year short of twenty years of service for the air force, at which time she would have earned the right to a full air force retirement pension.
Sixteen months later, Witt was notified that a discharge action was being initiated. She exercised her right to an administrative hearing and then filed suit in the district court, seeking declaratory and injunctive relief from the discharge proceedings on the grounds of substantive due process, equal protection and procedural due process.
The military board found that Witt had engaged in homosexual acts and had stated that she was a homosexual in violation of the ?Don?t Ask, Don?t Tell? (DADT) policy and recommended that she be honorably discharged. The Secretary of the Air Force acted on this recommendation and ordered that she receive an honorable discharge.
Witt alleged that she was well regarded in her unit and believed she would continue to be so regarded even if the entire unit was made aware that she was homosexual. She contended that the proceedings against her had a negative effect on unit cohesion and morale, and that there is currently a shortage of nurses in the air force of her rank and ability.
The district court dismissed Witt?s suit under F.R.Civ.P. 12(b)(6) for failure to state a claim.
Witt appealed.
The court of appeal reversed the judgment in part, affirmed in part and remanded. The court held that the DADT policy permitting discharge on account of homosexual activity must satisfy an as-applied intermediate level of scrutiny under substantive due process.
The court noted that DADT, 10 U.S.C. §654. generally permits the discharge of armed services members if (1) the member has engaged in or solicited homosexual acts, (2) stated that he or she is a homosexual or bisexual, or words to that effect, or (3) married or attempted to marry a person known to be of the same biological sex.
Major Witt argued that in view of Lawrence v. Texas, 539 U.S. 558 (2003), striking down a Texas statute banning homosexual sodomy, prior Ninth Circuit decisions rejecting claims such as hers were no
longer dispositive as to the substantive due process claim.
In Lawrence, the court observed, the Supreme Court overruled Bowers v. Hardwick, 478 U.S. 186 (1986), which upheld a Georgia law criminalizing consensual sodomy, finding that in Bowers it had failed ?to appreciate the extent of the liberty at stake? in the case.
The court rejected both the argument of Witt that Lawrence had recognized a fundamental right requiring application of strict scrutiny and the government?s argument that that Lawrence implied only rationale basis review.
Only one court of appeals had considered the issue directly, the court found. Lofton v. Secretary of the Department of Children & Family Services, 358 F.3d 804 (11th Cir. 2004), had upheld a law forbidding homosexuals from adopting children, holding that Lawrence had not applied strict scrutiny.
The United States Court of Appeals for the Armed Services, however, had considered the implications of Lawrence in United States v. Marcum, 60 M.J. 198 (C.A.A.F. 2004), where a serviceman convicted of consensual sodomy with a man of inferior rank within his chain of command challenged an air force sodomy law. The Marcum court, the court explained, had concluded that the application of Lawrence ?must be addressed in context and not through a facial challenge.?
The court described Marcum?s three step analysis: (1) Was the conduct in question within the liberty interest identified in Lawrence? (2) Did the conduct encompass behavior or factors identified as outside the analysis in Lawrence? (3) Were there additional factors relevant solely in the military environment that affected the nature and reach of the Lawrence interest?
Since the Supreme Court in Lawrence had not specifically identified the level of scrutiny being applied, the court analyzed the decision by considering what the court actually did and concluded, like the Marcum court, that the Supreme Court had applied a heightened level of scrutiny.
First, the court?s criticism that Bowers had misapprehended the extent of the liberty interest at stake did not sound in rational basis review. Second, Lawrence had relied on cases based on heightened scrutiny. Third, the Lawrence court?s inquiry analysis as to whether the Texas statute furthered a state interest which could ?justify its intrusion into the personal and private life of the individual? was inconsistent with rational basis review.
To determine the level of scrutiny applied in Lawrence, the court looked to Sell v. United States, 539 U.S. 166 (2003), where the court considered whether the government could forcibly administer anti-psychotic drugs to a mentally ill defendant to render him competent to stand trial. The court there recognized a ?significant liberty interest? and balanced that against the ?legitimate? and ?important? state interest in providing appropriate treatment to reduce danger to the inmate or others, similarly to the analysis employed in Lawrence.
The court took direction from Sell and adopted three heightened scrutiny factors as the balancing analysis required under Lawrence.
The court held that when the government attempts to intrude upon the personal and private lives of homosexuals, in a manner that implicates rights identified in Lawrence, 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. For the third factor, a less intrusive means must be unlikely to achieve substantially the government?s interest. The prior decision in Beller v. Middendorf, 632 F.2d 788 (9th Cir. 1980), holding that a predecessor policy to DADT survived heightened scrutiny, was no longer good law.
Additionally, the court held, the heightened scrutiny analysis must be as-applied rather than facial, determining whether a justification exists for application of the DADT policy as applied to Witt. Remand was required for the development of the record on this issue.
The district court?s decision had to be affirmed, however, as to the equal protection claim under Philips v. Perry, 106 F.3d 1420 (9th Cir. 1997), which held that DADT did not violate equal protection under rational basis review. That holding had not been disturbed by Lawrence, which declined to address equal protection.
Finally, the procedural due process claim, regarding whether an honorable discharge could not stigmatizing if prospective employers knew of the reasons for it, was not ripe for adjudication and would be remanded for further factual development.
Judge Canby concurred in part and dissented in part. He would have reversed the dismissal of the equal protection claim as well as the due process claim, and he would have applied strict scrutiny to the analysis of both claims.
