Wednesday, May 21, 2008

9th Circuit consults Marcum in ruling on Don't Ask, Don't Tell challenge

We previously looked at state courts' treatment of CAAF precedent. A significant decision that the Ninth Circuit issued today consulted United States v. Marcum, 60 M.J. 198 (C.A.A.F. 2004).

Witt v. Department of the Air Force, __ F.3d ___, No. 06-35644 (9th Cir. May 21, 2008), available here, is an appeal of a dismissal of an Air Force Reserve major's suit to enjoin enforcement of 10 U.S.C. § 654's "Don't Ask, Don't Tell" policy.

The principal issue in Witt is what level of scrutiny applies to a substantive due process challenge to Don't Ask, Don't Tell. The United States District Court for the Western District of Washington had applied a rational basis standard. In the course of adopting a more exacting level of scrutiny, the Ninth Circuit favorably cited Marcum. The Ninth Circuit reasoned:

In United States v. Marcum, 60 M.J. 198 (C.A.A.F. 2004), the United States Court of Appeals for the Armed Forces considered a challenge to an Air Force sodomy law brought by a serviceman who had been convicted of consensual sodomy with a man of inferior rank within his chain of command. That court concluded that the application of Lawrence [v. Texas, 539 U.S. 558 (2003),] must be addressed "in context and not through a facial challenge." [60 M.J.] at 206. Lawrence, the court concluded, did not identify a fundamental right; however, it required "searching constitutional inquiry." Id. at 205. The court distilled this inquiry into a three-step analysis:

First, was the conduct that the accused was found guilty of committing of a nature to bring it within the liberty interest identified by the Supreme Court? Second, did the conduct encompass any behavior or factors identified by the Supreme Court as outside the analysis in Lawrence? Third, are there additional factors relevant solely in the military environment that affect the nature and reach of the Lawrence liberty interest?

Id. at 206-07 (citation omitted).

The Court of Appeals for the Armed Forces, in our view, applied a heightened level of scrutiny. By considering whether the policy applied properly to a particular litigant, rather than whether there was a permissible application of the statute, the court necessarily required more than hypothetical justification for the policy—all that is required under rational basis review. The court also required consideration of "additional factors" that might justify the policy, which might be viewed as a corollary to the requirement that a challenged policy serve a "compelling" or "important" government interest under traditional forms of heightened scrutiny.
Witt, No. 06-35644, slip op. at 5858.

The Ninth Circuit adopted a heightened level of scrutiny and then rejected one of its previous opinions holding that Don't Ask, Don't Tell survived heightened scrutiny. In reaching this latter conclusion, the panel rejected the Ninth Circuit's holding in Beller v. Middendorf, 632 F.2d 788, 805-12 (9th Cir. 1980), which refused to perform an as-applied balancing test to a Navy regulation banning gays from the service. The panel revisited Marcum in a footnote:

Beller's conclusion that individualized determination were "impractical" at that time has also since been placed into question by the Court of Appeals for the Armed Forces' decision in Marcum, where the court held that the application of Lawrence must be addressed "in context and not through a facial challenge." 60 M.J. at 206. Although that court's decision does not bind our panel, it is telling that the Marcum court did not find it "impractical" to consider particularized facts in each case. See Middendorf v. Henry, 425 U.S. 25, 43 (1976) (noting that military courts' judgments "are normally entitled to great deference" when "[d]ealing with areas of law peculiar to the military branches.").
Witt, No. 06-35644, slip op. at 5866 n.9.

The panel ultimately remanded the case to the district court for application of the heightened scrutiny. Id., slip op. at 5868.

Given its conflict with previous Ninth Circuit cases, Witt seems like a strong candidate for en banc review and possibly even cert. We may get to see further application of Marcum as this case progresses.


Anonymous said...

I have always found the third prong of Marcum the most interesting because it effectively demonstrates that Article 125 is unnecessary. Can anyone think of a scenario in which an Article 125 specification alleging consensual sodomy would survive appellate review under Marcum without also alleging facts that would constitute a violation of some other UCMJ article?

John O'Connor said...

I think this is a poor vehicle for cert, though maybe not for en banc review.

The case isn't final. It didn't invalidate DADT. All it did was set a test, which might be right or might be wrong.

I was struck by how little the military context played into the court's analysis. That might be okay, or it might be a grievous error. It might be okay because some military deference cases, such as Rostker v. Goldberg, simply adopt the constitutional test applicable to a "civioian" challenge, and account for Congress's greater flexibility in regulating the military by applying that civilian test more leniently.

In other cases, such as Parker v. Levy, the Court implements the military deference doctrine by adopting a test that is more lenient than the test applicable in the civilian context.

Here, the court just tried to divine a constitutional test from Lawrence and adopted it. That might be a sound process, but only if the district court on remand accounts for the military context by applying the civilian test more leniently than it would if the challenged regulation was in the civilian context.

Anonymous said...

Supreme Court won't touch a dont ask dont tell case.

John O'Connor said...

Anonymous #2:

If a court of appeals strikes down DADT, the Supreme Court won't have a choice but to take it. They are highly, highly likely to take cases where courts have invalidated congressional legislation.

Of course, politics might supersede all of this and there could be a legislative change to DADT.

Anonymous said...

All three of the Presidents-to-be may end DADT, Guantanamo, and the commissions. Then we'll have a lot less to blog about.

Anonymous said...

One of CAAF's flaws is that it is sometimes not clear in announcing its constitutional standards. CAAF sometimes creates these weird hybrid-standards that seem reasonable enough, but don't quite fit the usual categories. If you read between the lines, the 9th Circuit politely points this out.

Anonymous said...

Jim Lobenz, who was also counsel on the pre-DADT case Watkins v Secretary of the Army, was Witt's attorney.