“Don’t Ask Don’t Tell” Unconstitutional?

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Well, not yet, but the Ninth Circuit Court of Appeals ruled yesterday that the policy has to survive intermediate scrutiny and remanded the case to the lower court to apply the standard.   (A short summary of the opinion is available here, via the Workplace Prof Blog.)   The court based its standard on Lawrence v. Texas, holding as follows:

We hold that when the government attempts to intrude upon the personal and private lives of homosexuals, in a manner that implicates the 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. In other words, for the third factor, a less intrusive means must be unlikely to achieve substantially the government’s interest.

The case was decided by a 2-1 vote, but the one dissenting judge did so because he believed the panel should have applied strict scrutiny rather than intermediate scrutiny.   All three judges on the panel were appointed by Democratic Presidents (two by Clinton, one by Carter).

An appeal to the en banc court is likely, and if the decision stands, review by the Supremes highly possible as well.   I wouldn’t hold my breath that this decision goes unreversed, but until it does, it’s a great advance in the law.   Combined with last week’s decision on same-sex marriage, it’s been a great 7 days for gay rights in California.

– David S. Cohen

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