Cook v. Gates was the second challenge to the “Don’t Ask, Don’t Tell” policy of the U.S. Military decided after Lawrence. Yesterday in Cook v. Gates the First Circuit held in pertinent part:
There are at least four reasons for reading Lawrence as recognizing a protected liberty interest. First, Lawrence relies on the following due process cases for doctrinal support: Griswold, Eisentstadt, Roe, Carey, and Casey. 539 U.S. at 565-66. Each case resulted in the Supreme Court recognizing a due process right to make personal decisions related to sexual conduct that mandated the application of heightened judicial scrutiny. Id. It would be strange indeed to interpret Lawrence as not recognizing a protected liberty interest when virtually every case it relied upon for support recognized such an interest.
Second, the language employed throughout Lawrence supports the recognition of a protected liberty interest. Lawrence associated the right at issue with the core constitutional rights of “freedom of thought, belief, and expression,” rights which undoubtedly mandate special protection under the Constitution. Id. at 563. It also stated that “liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.” Id. at 572 (emphasis supplied). And it concluded its analysis by stating that the “right to liberty under the Due Process Clause” allowed the petitioners to engage in “private sexual conduct” because “‘[i]t is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.'” Id. at 578 (quoting Casey, 505 U.S. at 847). Such language strongly suggests that Lawrence identified a protected liberty interest.
Third, in overruling Bowers, Lawrence relied on Justice Stevens’ Bowers dissent as stating the ontrolling principles. Id. at 578. The passage of Justice Stevens’ dissent quoted in Lawrence stated that “individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of liberty protected by the Due Process Clause . . . . Moreover, this protection extends to intimate choices by unmarried as well as married persons.” Id. In support of this proposition, Justice Stevens cited Griswold, Eisenstadt and Carey. Bowers, 478 U.S. at 216 (Stevens, J., dissenting). As discussed above, these are due process cases that recognize protected liberty interests. Furthermore, in the very next passage of Justice Stevens’ dissent, he described these cases as establishing rights that are “fundamental” and placed the right of adults to engage in private intimate conduct in the same category. Id. It is impossible to read Lawrence as declining to recognize a protected liberty interest without ignoring the Court’s statement that Justice Stevens’ Bowers dissent was controlling.
Finally, if Lawrence had applied traditional rational basis review (the appropriate standard if no protected liberty interest was at stake, see e.g., Medeiros, 431 F.3d at 33), the convictions under the Texas statute would have been sustained. The governmental interest in prohibiting immoral conduct was the only state interest that Texas offered to justify the statute. Lawrence, 539 U.S. at 582. It is well established that a “legislature [can] legitimately act . . . to protect the societal interest in order and morality.” Barnes v. Glen Theatre, Inc., 501 U.S. 560, 569 (1991) (quoting Paris Adult Theatre I v. Slaton, 413 U.S. 49, 61 (1973)). Thus, Lawrence’s holding can only be squared with the Supreme Court’s acknowledgment of morality as a rational basis by concluding that a protected liberty interest was at stake, and therefore a rational basis for the law was not sufficient.
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.”
However, the majority also held that deference to Congressional decision-making was the paramount interest, so the challenge failed. But, some days you have to take the good news where you can find it. Paul Secunda writes: “… if the First Circuit interpretation is upheld, then it is a wonderful day for public employees (outside of the military) who won’t have the military-deference albatross hanging around their necks and may soon begin to exercise sexual privacy interests off-duty without impact on their jobs in many cases!”
UPDATE: Kathleen Bergin has more commentary here.