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Three-judge Ninth Circuit panel revives constitutional challenge to military's "Don't Ask, Don't Tell" policy

Three-judge Ninth Circuit panel revives constitutional challenge to military's "Don't Ask, Don't Tell" policy: The lawsuit in question was filed by a woman who was suspended from duty as an Air Force reservist nurse on account of her sexual relationship with a civilian woman. Today's ruling reinstates the plaintiff's substantive and procedural due process challenges to the policy but affirms the dismissal of the plaintiff's equal protection challenge.

Today's majority opinion, written by Circuit Judge Ronald M. Gould and joined in by Circuit Judge Susan P. Graber, concludes:

The issues posed by this case might generate great concern both from those who welcome Major Witt's continued participation in the Air Force and from those who may oppose it. Those issues must be, and have been, addressed in the first instance by leaders of the military community and by those in Congress with law-making responsibilities. All of Congress's laws must abide by the United States Constitution, however. Taking direction from what the Supreme Court decided in Lawrence and Sell, we hold that DADT, after Lawrence, must satisfy an intermediate level of scrutiny under substantive due process, an inquiry that requires facts not present on the record before us.

Senior Circuit Judge William C. Canby issued an opinion concurring in part and dissenting in part. Judge Canby writes that he also would have ordered the revival of the plaintiff's equal protection claim and that he would subject the "Don't Ask, Don't Tell" policy to strict scrutiny, rather than intermediate scrutiny as the majority has ordered.

Full post as published by How Appealing on May 21, 2008 (boomark / email).