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.
If a G/L wants to serve in the military and the willingness to serve is paramount, and that individual is willing to essentially remain unobtrusive then the powers that be will make an accomodation. As soon as it becomes ‘coomon knowledge” then problems arise and accelerate like a snowball rolling down hill.
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p>As I stated before—-the military policy is not to protect “straights”, it is to protect G/L.
Most of the evidence is that they won’t, which is a big part of the problem. But that’s a different post.