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:Witt, No. 06-35644, slip op. at 5858.
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.
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.