Circuits split over military's 'don't ask, don't tell' policy.

The First Circuit recently threw out a constitutional challenge to the military's "don't ask, don't tell" policy, which allows gays and lesbians to serve in the military as long as they keep their sexual orientation concealed. The decision created a schism in the circuits, following close on the heels of a Ninth Circuit ruling that reinstated a similar challenge.

The First Circuit case was brought by 12 former members of the military who had been discharged under the "don't ask, don't tell" policy. The plaintiffs claimed the policy violated their constitutional right to due process, equal protection, and free speech, and cited as precedent the U.S. Supreme Court's decision in Lawrence v. Texas (539 U.S. 558 (2003)), which struck down a Texas law that criminalized homosexual sodomy.

In a 2-1 decision, the First Circuit found that the liberty interest recognized by the Lawrence Court was limited. "Lawrence did not identify a protected liberty interest in all forms and manner of sexual intimacy. Lawrence recognized only a narrowly defined liberty interest in adult consensual sexual intimacy in the confines of one's home and one's own private life," Judge Jeffrey Howard wrote for the court. (Pietrangelo v. Gates, 2008 WL 2332526 (1st Cir. June 9, 2008).)

The court rejected the plaintiffs' argument that Lawrence mandated a strict scrutiny standard in weighing the constitutionality of a law that targeted homosexuals. "There is no basis for arguing that Lawrence changed the standard of review applicable to a legislative classification based on sexual orientation," Howard wrote.

Applying a rational basis test to the "don't ask, don't tell" policy, the court concluded that "given the substantial deference owed Congress' assessment of the need for the legislation, the act survives rational basis review."

Several weeks earlier, the Ninth Circuit reached a different conclusion regarding the standard of review, finding that the government must show the policy meets a heightened standard of scrutiny to pass constitutional muster. (Witt v. Dept. of the Air Force, 2008 WL 2120501 (9th Cir. May 21, 2008).)

That case was brought by Major Margaret Witt, an Air Force combat flight nurse who claimed that her discharge from the service for being a lesbian violated her constitutional rights to equal protection and due process. Witt, who joined the Air Force in 1987, lived with a civilian woman and said she did not reveal her sexual orientation to her colleagues. After an anonymous caller in Spokane, Washington, reported that Witt was living off-base with another woman, Witt received an honorable discharge.

A trial judge dismissed the case for failure to state a claim, but the Ninth Circuit reversed in a 2-1 opinion, finding that "Lawrence requires something more than traditional rational basis review." Instead, the government must demonstrate that choosing to discharge an employee under the "don't ask, don't tell" policy would significantly further the government's interest and that less-intrusive solutions are unavailable, Judge Ronald Gould wrote.

Jim Lobsenz, a Seattle attorney who represented Witt, said he believes that ultimately the "don't ask, don't tell" policy, which has resulted in the dismissal of more than 12,000 gays and lesbians from the military, will be rendered moot as a result of openly homosexual members of the military serving with no problems.

"The absurdity that the greatest employee shortage in the Air Force is for flight nurses, yet the nation wants to get rid of a great officer for her [sexual] orientation, is well illustrated in this case," he said.

Ken Kagan, an attorney in Lobsenz's firm, said that he believes that both cases may be reviewed by the full panels of their respective circuits, and that the issue of the constitutionality of "don't ask, don't tell" is now ripe for U.S. Supreme Court review.

"The split in the circuits increases the possibility that the Supreme Court will review the policy" for its constitutionality, Kagan said.