The US Court of Appeals for the First Circuit (headquartered in Boston, governing MA, RI, NH, ME, and PR, and relatively liberal by federal court of appeals standards) decided yesterday that “consensual sexual intimacy in the home” — including same-sex sexual intimacy — is a constitutionally “protected liberty interest” that the government cannot restrict by offering a merely cursory justification. However, the court went on to reject a challenge to the odious “don’t ask don’t tell” (DADT) policy, holding that with respect to that policy, the government had met its burden of justifying the restrictions.
Similar cases challenging DADT had failed in the courts before. But this case represented the first challenge initiated since Lawrence v. Texas was decided, and the hope was that Lawrence would dictate a different result. Didn’t happen. Interesting, though, the 9th Circuit in California recently decided a similar challenge and concluded that Lawrence did indeed mandate a different result.
The Boston decision was 2-1, with the dissenting judge arguing that the plaintiffs’ First Amendment claim should have been allowed to proceed. You can read the whole thing here. More on the flip.
The judges in the majority were Jeffrey Howard (a Bush II appointee from New Hampshire) and Levin Campbell (a Nixon appointee from Boston, now 81 years old). The dissenting judge was Patti Saris, a Clinton-appointed MA District Court judge sitting by temporary designation on the Court of Appeals (by the way, it’s quite common for District Court judges to sit by designation). The opinion starts off in a promising fashion, concluding that Lawrence changed the rules of the game in an important respect:
Taking into account the precedent relied on by Lawrence, the tenor of its language, its special reliance on Justice Stevens’ Bowers dissent, and its rejection of morality as an adequate basis for the law in question, we are convinced that Lawrence recognized that adults maintain a protected liberty interest to engage in certain “consensual sexual intimacy in the home.” The district court, relying on cases from other circuits, read Lawrence as applying rational basis review. We, however, do not find any of the four primary reasons supporting this view persuasive…. 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.
This sounds like legalese, but the use of the phrase “protected liberty interest” and the rejection of “rational basis review” are actually quite important. What they mean is that, in the future, cases in the First Circuit in which the government has attempted to criminalize or regulate “consensual sexual intimacy in the home” will be reviewed considerably more stringently than would have been the case pre-Lawrence.
However, the change in legal standard did not help the plaintiffs in this case. The court held that the government’s “effective fighting force” and “unit cohesion” justifications, combined with traditional judicial deference to the government in military affairs, were enough to defeat the challenge. Unfortunately, all three judges agreed with that conclusion.
The judges’ disagreement was over the First Amendment claims. As to those claims, which concern the result of a service member saying “I am gay” (or words to that effect), the dissenting judge thought that DADT burdened more speech than was necessary to advance the government’s interests, and that it reached too far into purely private speech. But the majority disagreed, and rejected the First Amendment claims.
One can only hope that this nonsense will come to an end in January, 2009.
Disclosure: My friend and former colleague Stuart Delery argued this case for the plaintiffs.