Ninth Circuit Sends McCain a Memorial Day Gift; Rules that DADT Must be Reviewed

The Ninth Circuit ruled this morning that “Don’t Ask, Don’t Tell” should be subject to heightened judicial scrutiny (PDF). The ruling was 2-1 (but the 1 concurred in part and dissented only because the majority did not go far enough). This is kind of a big deal.

Usually, the courts easily dismiss challenges to DADT on the theory that the policy doesn’t implicate any fundamental rights and so is subject only to rational basis review. That is, so long as the government can provide a rational reason (even if it is the most spurious cover for its true aim), the law will be upheld.

But now the Ninth, relying on Lawrence v. Texas (BTW, for a good time ask Drew how much he loves Lawrence) has found that DADT burdens a “fundamental” constitutional right to engage in private, consensual sexual relations with another adult. Because it burdens a fundamental right, the Ninth says it must pass more exacting scrutiny than rational basis review. Some judicial contortions ensue and though the court doesn’t extend strict scrutiny (the heighest level of scrutiny) to homosexuals, it settles on “heightened review.”

A few initial thoughts:

(1) There is no guarantee the Supreme Court will pick up the case at this time. The Ninth remanded to the district court to actually determine if Major Witt (an Air Force nurse (woman) suspended from duty for having a girlfriend) has an due process claim. DADT has not been struck down by any court (yet). It’s likely that the Supreme Court would wait at least until then before agreeing to intervene. It’s also possible that the government will ask the Ninth Circuit for an en banc rehearing, which could further delay the Supreme Court taking the case.

(2) What impact does it have on the election? Obama and Clinton are in favor of doing away with DADT. McCain wants to keep it. Both sides now have an opportunity to gain ground with portions of their base. Note, however, that Obama’s position probably won’t help him with his weakest demographic: working-class whites. As with the gun issue, McCain can pick up some votes…if he cares to swing at the ball.

(3) That’s two Big Gay Cases in two Big Gay Weeks, which means that someone will come out of the woodwork and fearmonger about Big Gay Conspiracies or “agendas” or whatnot. There’s no indication that Major Witt and her girlfriend are planning to get married in California, so can we let it rest for a minute? The gays aren’t trying to convert you. I swear, scout’s honor.


Thanks to DPUD for the pic and a timely reminder.


~ by Gabriel Malor on May 21, 2008.

2 Responses to “Ninth Circuit Sends McCain a Memorial Day Gift; Rules that DADT Must be Reviewed”

  1. […] law student’s take, by the pseudonymous Gabriel Malor, includes the observation that the decision is a “Memorial Day gift to John […]

  2. Your point (3) is an interesting one that I hadn’t thought of. Could make the news interesting to watch for the next few weeks!

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