Witt v. Department of Air Force ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARGARET WITT, Major, 
Plaintiff-Appellant,
v.
DEPARTMENT OF THE AIR FORCE; No. 06-35644
ROBERT M. GATES,* Secretary of
Defense; MICHAEL W. WYNNE,  D.C. No.
CV-06-05195-RBL
Secretary, Department of the Air
Force; MARY L. WALKER, Colonel, OPINION
Commander, 446th Aeromedical
Evacuation Squadron, McChord
AFB,
Defendants-Appellees.

Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued and Submitted
November 5, 2007—Seattle, Washington
Filed May 21, 2008
Before: William C. Canby, Senior Circuit Judge,
Susan P. Graber, and Ronald M. Gould, Circuit Judges.
Opinion by Judge Gould;
Partial Concurrence and Partial Dissent by Judge Canby
*Robert M. Gates is substituted for his predecessor Donald H. Rumsfeld
as Secretary of Defense. Fed. R. App. P. 43(c)(2).
5841
WITT v. DEP’T OF THE AIR FORCE 5845
COUNSEL
James E. Lobsenz, Carney Badley Spellman, P.S., Seattle,
Washington, for the appellant.
Aaron H. Caplan, ACLU of Washington, Seattle, Washington,
for the appellant.
Peter Keisler, Attorney General, Department of Justice,
Washington, DC, for the appellees.
Anthony J. Steinmeyer, Assistant Branch Director, Appellate
Staff, Civil Division, Department of Justice, Washington, DC,
for the appellees.
OPINION
GOULD, Circuit Judge:
Plaintiff-Appellant Major Margaret Witt (“Major Witt”)
sued the Air Force, the Secretary of Defense, the Secretary of
the Air Force, and her Air Force commander (“the Air
Force”) after she was suspended from duty as an Air Force
reservist nurse on account of her sexual relationship with a
civilian woman. Major Witt alleges that 10 U.S.C. § 654,
commonly known as the “Don’t Ask, Don’t Tell” policy
(“DADT”), violates substantive due process, the Equal Pro-
tection Clause, and procedural due process. She seeks to
5846 WITT v. DEP’T OF THE AIR FORCE
enjoin DADT’s enforcement. The district court dismissed the
suit under Federal Rule of Civil Procedure 12(b)(6) for failure
to state a claim. We reverse and remand in part, and affirm in
part.
I
Major Witt entered the Air Force in 1987.1 She was com-
missioned as a Second Lieutenant that same year and pro-
moted to First Lieutenant in 1989, to Captain in 1991, and to
Major in 1999. In 1995, she transferred from active to reserve
duty and was assigned to McChord Air Force Base in
Tacoma, Washington.
By all accounts, Major Witt was an outstanding Air Force
officer. She received medals for her service, including the
Meritorious Service Medal, the Air Medal, the Aerial
Achievement Medal, the Air Force Commendation Medal,
and numerous others. Her annual “Officer Performance
Reviews” commended her accomplishments and abilities.
Major Witt was made an Air Force “poster child” in 1993,
when the Air Force featured her in recruitment materials; pho-
tos of her appeared in Air Force promotional materials for
more than a decade.
Major Witt was in a committed and long-term relationship
with another woman from July 1997 through August 2003.
Major Witt’s partner was never a member nor a civilian
employee of any branch of the armed forces, and Major Witt
states that she never had sexual relations while on duty or
while on the grounds of any Air Force base. During their rela-
tionship, Major Witt and her partner shared a home in Spo-
kane, Washington, about 250 miles away from McChord Air
1
Because the district court dismissed the suit below for failure to state
a claim, we present and consider the facts as alleged by Major Witt in a
light most favorable to her. Miranda v. Clark County, 319 F.3d 465, 468
(9th Cir. 2003) (en banc).
WITT v. DEP’T OF THE AIR FORCE 5847
Force Base. While serving in the Air Force, Major Witt never
told any member of the military that she was homosexual.
In July 2004, Major Witt was contacted by Major Adam
Torem, who told her that he had been assigned to investigate
an allegation that she was homosexual. She declined to make
any statement to him. An Air Force chaplain contacted her
thereafter to discuss her homosexuality, but she declined to
speak to him, as well. In November 2004, Major Witt’s Air
Force superiors told her that they were initiating formal sepa-
ration proceedings against her on account of her homosexual-
ity. This was confirmed in a memorandum that Major Witt
received on November 9, 2004. That memorandum also stated
that she could not engage in any “pay or point activity pend-
ing resolution” of the separation proceedings. Stated another
way, she could not be paid as a reservist, she could not earn
points toward promotion, and she could not earn retirement
benefits. When she received this memorandum, Major Witt
was less than one year short of twenty years of service for the
Air Force, at which time she would have earned a right to a
full Air Force retirement pension.
Sixteen months later, on March 6, 2006, Major Witt
received another memorandum notifying her that a discharge
action was being initiated against her on account of her homo-
sexuality. It also advised her of her right to request an admin-
istrative hearing, which she promptly did. On April 12, 2006,
Major Witt filed this suit in the United States District Court
for the Western District of Washington, seeking declaratory
and injunctive relief from the discharge proceedings.
A military hearing was held on September 28-29, 2006.
The military board found that Major Witt had engaged in
homosexual acts and had stated that she was a homosexual in
violation of DADT. It recommended that she be honorably
discharged from the Air Force Reserve. The Secretary of the
Air Force acted on this recommendation on July 10, 2007,
ordering that Major Witt receive an honorable discharge.
5848 WITT v. DEP’T OF THE AIR FORCE
Major Witt is well regarded in her unit, and she believes
that she would continue to be so regarded even if the entire
unit was made aware that she is homosexual. She also con-
tends that the proceedings against her have had a negative
effect on unit cohesion and morale, and that there is currently
a shortage of nurses in the Air Force of her rank and ability.
We must presume those facts to be true for the purposes of
this appeal.2
II
A
We review de novo a dismissal for failure to state a claim.
Pruitt v. Cheney, 963 F.2d 1160, 1162-63 (9th Cir. 1992).
DADT, 10 U.S.C. § 654, permits the discharge of members
of the armed forces on account of homosexual activity. In rel-
evant part, it provides:
(b) Policy.—A member of the armed forces shall
be separated from the armed forces under regulations
prescribed by the Secretary of Defense if one or
more of the following findings is made and approved
2
Four amicus briefs were filed in this case. The International Commis-
sion of Jurists and the Center for Constitutional Rights wrote in support
of Major Witt and argued that the United States Supreme Court has recog-
nized a fundamental privacy right and that the international legal trend is
toward legal equality for homosexuals. The Lambda Legal Defense and
Education Fund also supported Major Witt and argued that the Supreme
Court has recognized a fundamental right to sexual identity and that the
district court undervalued the value of the liberty interest at stake in the
case. The Servicemembers Legal Defense Network wrote in support of
Major Witt and argued that the rationale for DADT is not compelling and
that DADT forces homosexual service members to hide their identity to
avoid discharge. The National Legal Foundation wrote in support of the
Air Force and argued that DADT has a valid purpose of supporting unit
cohesion, reducing sexual tension, and protecting privacy. We appreciate
the advice of all amici on the important issues before us.
WITT v. DEP’T OF THE AIR FORCE 5849
in accordance with procedures set forth in such regu-
lations:
(1) That the member has engaged in, attempted to
engage in, or solicited another to engage in a homo-
sexual act or acts unless there are further findings,
made and approved in accordance with procedures
set forth in such regulations, that the member has
demonstrated that—
(A) such conduct is a departure from the mem-
ber’s usual and customary behavior;
(B) such conduct, under all the circumstances, is
unlikely to recur;
(C) such conduct was not accomplished by use of
force, coercion, or intimidation;
(D) under the particular circumstances of the
case, the member’s continued presence in the armed
forces is consistent with the interests of the armed
forces in proper discipline, good order, and morale;
and
(E) the member does not have a propensity or
intent to engage in homosexual acts.
(2) That the member has stated that he or she is
a homosexual or bisexual, or words to that effect,
unless there is a further finding, made and approved
in accordance with procedures set forth in the regula-
tions, that the member has demonstrated that he or
she is not a person who engages in, attempts to
engage in, has a propensity to engage in, or intends
to engage in homosexual acts.
5850 WITT v. DEP’T OF THE AIR FORCE
(3) That the member has married or attempted to
marry a person known to be of the same biological
sex.
Id.Major Witt argues that DADT violates substantive due pro-
cess, the Equal Protection Clause, and procedural due process.
The Ninth Circuit has considered and rejected similar claims
in the past, see, e.g., Holmes v. Cal. Army Nat’l Guard, 124
F.3d 1126, 1136 (9th Cir. 1997) (rejecting an Equal Protection
Clause challenge to DADT under rational basis review); Phil-
ips v. Perry, 106 F.3d 1420, 1425-26 (9th Cir. 1997) (same);
Beller v. Middendorf, 632 F.2d 788, 805-12 (9th Cir. 1980)
(rejecting procedural due process and substantive due process
challenges to a Navy regulation forbidding homosexual ser-
vice in the Navy). However, Major Witt argues that Holmes,
Philips, and Beller are no longer dispositive in light of Law-
rence v. Texas, 539 U.S. 558 (2003), in which the Supreme
Court struck down a Texas statute that banned homosexual
sodomy. Accordingly, to resolve this appeal, we must con-
sider the effect of Lawrence on our prior precedents.
B
[1] We first assess whether Major Witt has standing to pur-
sue this action. “[T]he irreducible constitutional minimum of
standing contains three elements. First, the plaintiff must have
suffered an ‘injury in fact’—an invasion of a legally protected
interest which is (a) concrete and particularized, and (b) actual
or imminent, not ‘conjectural’ or ‘hypothetical.’ ” Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 (1992) (internal cita-
tions, footnote, and quotation marks omitted). Second, plain-
tiff must present a “causal connection between the injury and
the conduct complained of—the injury has to be fairly . . .
traceable to the challenged action of the defendant, and not
. . . the result of the independent action of some third party
not before the court.” Id. (internal quotation marks and brack-
WITT v. DEP’T OF THE AIR FORCE 5851
ets omitted). Finally, “it must be ‘likely,’ as opposed to
merely ‘speculative,’ that the injury will be ‘redressed by a
favorable decision.’ ” Id. at 561.
[2] There is little doubt that Major Witt meets the second
and third requirements, if she can meet the first requirement—
an actual injury from DADT. There are, however, questions
about whether she has suffered an actual injury for Article III
purposes. Although Major Witt has been suspended, the mili-
tary board recommended her discharge, and the Secretary of
the Air Force ordered her discharge, she has not been for-
mally discharged from the military, as far as the record before
us shows. Accordingly, at least some of Major Witt’s claims
are unripe because they rely on harms which may or may not
actually occur. See Texas v. United States, 523 U.S. 296, 300
(1998) (“A claim is not ripe for adjudication if it rests upon
contingent future events that may not occur as anticipated, or
indeed may not occur at all.” (internal quotation marks omit-
ted))
[3] We conclude that Major Witt meets the Article III
requirements for her substantive due process and equal pro-
tection claims. Although she has not been discharged for-
mally, Major Witt suffered a cognizable injury on account of
her long-term suspension. In addition to the loss of pay and
points toward promotion and retirement benefits, Major Witt
asserts in a declaration in the record that her suspension seri-
ously harmed her chances of being promoted to Colonel. This
injury is sufficient to establish “actual injury” for Article III
purposes.
[4] However, the situation is different for Major Witt’s pro-
cedural due process claim. Major Witt does not allege that she
has been deprived of life or a property interest. Her proce-
dural due process claim rests on her assertion that her dis-
charge papers will reflect the reasons for her discharge, and
that this in turn will result in a stigma. The record indicates
that Major Witt will receive an honorable discharge. We have
5852 WITT v. DEP’T OF THE AIR FORCE
suggested that an honorable discharge could be stigmatizing
if prospective employers had some reason to know of the rea-
sons for the honorable discharge. See Beller, 632 F.2d at 807(rejecting claim that an honorable discharge resulted in stigma
because there was “no evidence indicating that the plaintiffs’
service records [we]re likely to impose stigma upon them or
make it more difficult for them to seek post-discharge
employment”). However, the record does not reflect what will
appear on her discharge certificate and, thus, whether any
stigma will occur.3 Accordingly, the procedural due process
claim is not ripe for adjudication on this record because the
injury that Major Witt asserts may or may not occur. See Paul
v. Davis, 424 U.S. 693, 708-10 (1976) (holding that “defama-
tion, standing alone” does not suffice for a stigma-plus claim;
there must be “a right or status previously recognized by state
law [that] was distinctly altered or extinguished”).
[5] We hesitate to dismiss the claim at this stage, however,
because the factual situation surrounding Major Witt’s dis-
charge may have changed in the course of this appeal. We
therefore remand the procedural due process claim to the dis-
trict court, where the court can consider the factual details of
her discharge with more complete and current information.
3
Major Witt relies on a number of cases that have involved “suspen-
sion” to support her claim that her liberty has already been violated by her
suspension pending a final discharge. However, all of those cases involved
property interests. See FDIC v. Mallen, 486 U.S. 230, 240 (1988) (“It is
undisputed that appellee’s interest in the right to continue to serve as presi-
dent of the bank and to participate in the conduct of its affairs is a property
right protected by the Fifth Amendment Due Process Clause.”); Barry v.
Barchi, 443 U.S. 55, 64 (1979) (“[I]t is clear that Barchi had a property
interest in his license sufficient to invoke the protection of the Due Process
Clause.”); United States v. Two Hundred Ninety-Five Ivory Carvings, 689
F.2d 850, 853 (9th Cir. 1982) (“Since its summary seizure and during the
entire period of the delay, Segal has been deprived of his property without
an impartial hearing concerning the seizure.”). The plaintiffs in each of
those cases had a property right that was actively infringed by a delayed
hearing. Here, Major Witt alleges only a right to be free of a stigma that
may or may not occur, and which is not currently present.
WITT v. DEP’T OF THE AIR FORCE 5853
III
To evaluate Major Witt’s substantive due process claim, we
first must determine the proper level of scrutiny to apply. In
previous cases, we have applied rational basis review to
DADT and predecessor policies. See, e.g., Holmes, 124 F.3d
at 1136; Philips, 106 F.3d at 1425-26. However, Major Witt
argues that Lawrence effectively overruled those cases by
establishing a fundamental right to engage in adult consensual
sexual acts. The Air Force disagrees. Having carefully consid-
ered Lawrence and the arguments of the parties, we hold that
Lawrence requires something more than traditional rational
basis review and that remand is therefore appropriate.
A
[6] In Lawrence, the Supreme Court struck down a Texas
statute that criminalized consensual homosexual sodomy. 539
U.S. at 578. In doing so, it also overruled Bowers v. Hard-
wick, 478 U.S. 186 (1986), a 1986 decision of the Supreme
Court that had upheld a Georgia law criminalizing consensual
sodomy. The Court in Lawrence noted that “broad statements
of the substantive reach of liberty under the Due Process
Clause” can be found in earlier cases, including Pierce v.
Society of Sisters, 268 U.S. 510 (1925), Meyer v. Nebraska,
262 U.S. 390 (1923), and, most pertinently, in Griswold v.
Connecticut, 381 U.S. 479 (1965). Lawrence, 539 U.S. at 564.
“After Griswold,” the Court wrote, “it was established that the
right to make certain decisions regarding sexual conduct
extends beyond the marital relationship.” Id. at 565.
Turning to Bowers, the Court recognized “the Court’s own
failure to appreciate the extent of the liberty at stake” in that
case. Id. at 567. The Court explained:
To say that the issue in Bowers was simply the right
to engage in certain sexual conduct [as the Court did
in Bowers] demeans the claim the individual put for-
5854 WITT v. DEP’T OF THE AIR FORCE
ward, just as it would demean a married couple were
it to be said marriage is simply about the right to
have sexual intercourse. The laws involved in Bow-
ers and here are, to be sure, statutes that purport to
do no more than prohibit a particular sexual act.
Their penalties and purposes, though, have more far-
reaching consequences, touching upon the most pri-
vate human conduct, sexual behavior, and in the
most private of places, the home. The statutes do
seek to control a personal relationship that, whether
or not entitled to formal recognition in the law, is
within the liberty of persons to choose without being
punished as criminals.
Id.The Court then discussed the reach of its decision, summa-
rizing:
This, as a general rule, should counsel against
attempts by the State, or a court, to define the mean-
ing of the relationship or to set its boundaries absent
injury to a person or abuse of an institution the law
protects. It suffices for us to acknowledge that adults
may choose to enter upon this relationship in the
confines of their homes and their own private lives
and still retain their dignity as free persons. When
sexuality finds overt expression in intimate conduct
with another person, the conduct can be but one ele-
ment in a personal bond that is more enduring. The
liberty protected by the Constitution allows homo-
sexual persons the right to make this choice.
Id.[7] The Supreme Court then provided additional reasons
why it was overruling Bowers. First, the Court explained,
Bowers was predicated on the erroneous belief that homosex-
WITT v. DEP’T OF THE AIR FORCE 5855
uality was “subject to state intervention throughout the history
of Western civilization.” Id. at 571 (internal quotation marks
omitted). Second, the logic in Bowers “demean[ed] the lives
of homosexual persons” and had been widely rejected by state
courts and international tribunals. Id. at 575-76.
The Supreme Court concluded:
[Homosexuals’] right to liberty under the Due Pro-
cess Clause gives them the full right to engage in
their conduct without intervention of the govern-
ment. “It is a promise of the Constitution that there
is a realm of personal liberty which the government
may not enter.” Planned Parenthood v. Casey, 505
U.S. 833, 847 (1992). The Texas statute furthers no
legitimate state interest which can justify its intru-
sion into the personal and private life of the individ-
ual.
Id. at 578.
B
Major Witt argues that Lawrence recognized a fundamental
right to engage in private, consensual, homosexual conduct
and therefore requires us to subject DADT to heightened scru-
tiny. The Air Force argues that Lawrence applied only ratio-
nal basis review, and that the Ninth Circuit’s decisions in
Holmes, Philips, and Beller remain binding law on DADT’s
validity. Because Lawrence is, perhaps intentionally so, silent
as to the level of scrutiny that it applied, both parties draw
upon language from Lawrence that supports their views.
Major Witt argues that the “plain language” of Lawrence
demonstrates that heightened scrutiny is required here. She
notes that, in Lawrence, the Supreme Court relied on Gris-
wold, 381 U.S. 479, Roe v. Wade, 410 U.S. 113 (1973), and
Carey v. Population Services International, 431 U.S. 6785856 WITT v. DEP’T OF THE AIR FORCE
(1977), all of which are fundamental rights cases. She also
observes that the language of Lawrence emphasizes the
importance of the right at issue and refers to “substantial pro-
tections” afforded “adult persons in deciding how to conduct
their private lives in matters pertaining to sex.” “Substantial
protections” are not afforded under rational basis review,
Major Witt argues, because rational basis review considers
only whether the challenged policy is rationally related to a
legitimate state interest.
In response, the Air Force argues that the same “plain lan-
guage” implies only rational basis review. In particular, the
Air Force stresses the passage in Lawrence that states that the
challenged statute “further[ed] no legitimate state interest
which can justify its intrusion into the personal and private
life of the individual,” 539 U.S. at 578 (emphasis added).
According to the Air Force, legitimate interests are the hall-
mark of rational basis review. The Air Force also notes that
Lawrence never stated that it was applying anything other
than rational basis review, so, the Air Force concludes, it
surely was not.
1
As a preliminary matter, the Air Force argues that no court
to date has held that Lawrence applied a heightened level of
scrutiny. However, the situation is more complex than that
presented by the Air Force. Although the Air Force argues
that “every Article III court to have decided th[e] question
[whether Lawrence applied heightened scrutiny], including
three courts of appeals, agreed with the District Court in this
case that Lawrence applied rational-basis review, meaning
that the case did not implicate a fundamental right,” that is not
the case. As we see it, only one court of appeals has directly
considered the issue.
The first case that the Air Force claims “decided this ques-
tion,” Sylvester v. Fogley, 465 F.3d 851 (8th Cir. 2006), is
WITT v. DEP’T OF THE AIR FORCE 5857
discussed at length in its brief. However, the Eighth Circuit
explicitly declined to address the issue in Sylvester. See id. at
858 (“[W]e need not determine whether Sylvester’s sexual
conduct is protected as a fundamental privacy right because
we would reach the same result applying either the strict-
scrutiny standard of review or the rational-basis standard of
review.”). The Seventh Circuit made a similar disclaimer in
the next case that the Air Force discusses, Muth v. Frank, 412
F.3d 808 (7th Cir. 2005), which addressed the issue only in
dicta. In Muth, the court said:
It may well be that future litigants will insist that
Lawrence has broader implications for challenges to
other state laws criminalizing consensual sexual con-
duct. However, because this case is here on habeas
review, the only question before this court is whether
Lawrence announced a new rule proscribing laws
prohibiting the conduct for which Muth was con-
victed [, incest].
Id. at 818. The court concluded that Lawrence’s holding did
not apply to the activity in question—incest—and, thus, did
not consider the level of scrutiny applied in Lawrence. Id.Only one of the three courts of appeals that the Air Force
claims to have “decided this question” actually has done so.
In Lofton v. Secretary of the Department of Children & Fam-
ily Services, 358 F.3d 804, 817 (11th Cir. 2004), the Eleventh
Circuit upheld a law that forbade homosexuals from adopting
children, explicitly holding that Lawrence did not apply strict
scrutiny. Otherwise, our sister circuits are silent.
Nor have we previously directly considered the implica-
tions of Lawrence. In Fields v. Palmdale School District, 427
F.3d 1197, 1208 (9th Cir. 2005), we noted that the right to pri-
vacy “encompasses a right of sexual intimacy.” (Citing Law-
rence.) However, we concluded that the action at issue in
Fields, a survey of elementary school children that included
5858 WITT v. DEP’T OF THE AIR FORCE
questions relating to sex, did not interfere with the right of
parents to make intimate decisions. Id. Accordingly, we did
not apply Lawrence, whatever the level of scrutiny it might
require.4
One other court of note has considered the implications of
Lawrence. 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 consen-
sual sodomy with a man of inferior rank within his chain of
command. That court concluded that the application of Law-
rence must be addressed “in context and not through a facial
challenge.” Id. 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 lib-
erty interest?
Id. at 206-07 (citation omitted).
The Court of Appeals for the Armed Forces, in our view,
4
The Air Force states that, in Hensala v. Department of the Air Force,
343 F.3d 951 (9th Cir. 2003), Judge Tashima held that Lawrence and
Holmes “are not closely on point” so that “Holmes remains the law of the
land.” However, Judge Tashima wrote only a partial dissent in that case.
See id. at 959 n.1 (Tashima, J., dissenting in part). The panel majority held
that it need not reach the issue. Id. at 959 (majority opinion).
WITT v. DEP’T OF THE AIR FORCE 5859
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 “addi-
tional factors” that might justify the policy, which might be
viewed as a corollary to the requirement that a challenged pol-
icy serve a “compelling” or “important” government interest
under traditional forms of heightened scrutiny.
With this mixed background, we now turn to our analysis
of Lawrence.
2
The parties urge us to pick through Lawrence with a fine-
toothed comb and to give credence to the particular turns of
phrase used by the Supreme Court that best support their
claims. But given the studied limits of the verbal analysis in
Lawrence, this approach is not conclusive. Nor does a review
of our circuit precedent answer the question; as the Court of
Appeals for the Armed Forces stated in Marcum, 68 M.J. at
204, “[a]lthough particular sentences within the Supreme
Court’s opinion may be culled in support of the Government’s
argument, other sentences may be extracted to support Appel-
lant’s argument.” In these ambiguous circumstances, we ana-
lyze Lawrence by considering what the Court actually did,
rather than by dissecting isolated pieces of text. In so doing,
we conclude that the Supreme Court applied a heightened
level of scrutiny in Lawrence.
[8] We cannot reconcile what the Supreme Court did in
Lawrence with the minimal protections afforded by traditional
rational basis review. First, the Court overruled Bowers, an
earlier case in which the Court had upheld a Georgia sodomy
law under rational basis review. If the Court was undertaking
rational basis review, then Bowers must have been wrong
5860 WITT v. DEP’T OF THE AIR FORCE
because it failed under that standard; namely, it must have
lacked “any reasonably conceivable state of facts that could
provide a rational basis for the classification.” FCC v. Beach
Commc’ns, Inc., 508 U.S. 307, 313 (1993). But the Court’s
criticism of Bowers had nothing to do with the basis for the
law; instead, the Court rejected Bowers because of the
“Court’s own failure to appreciate the extent of the liberty at
stake.” Lawrence, 539 U.S. at 567.
The criticism that the Court in Bowers had misapprehended
“the extent of the liberty at stake” does not sound in rational
basis review. Under rational basis review, the Court deter-
mines whether governmental action is so arbitrary that a ratio-
nal basis for the action cannot even be conceived post hoc. If
the Court was applying that standard—“a paradigm of judicial
restraint,” Beach, 508 U.S. at 314—it had no reason to con-
sider the extent of the liberty involved. Yet it did, ultimately
concluding that the ban on homosexual sexual conduct sought
to “control a personal relationship that, whether or not entitled
to formal recognition in the law, is within the liberty of per-
sons to choose without being punished as criminals.” Law-
rence, 539 U.S. at 567. This is inconsistent with rational basis
review.
[9] Second, the cases on which the Supreme Court explic-
itly based its decision in Lawrence are based on heightened
scrutiny. As Major Witt pointed out, those cases include Gris-
wold, Roe, and Carey. Moreover, the Court stated that Casey,
a post-Bowers decision, cast its holding in Bowers into doubt.
Lawrence, 539 U.S. at 573-74. Notably, the Court did not
mention or apply the post-Bowers case of Romer v. Evans,
517 U.S. 620 (1996), in which the Court applied rational basis
review to a law concerning homosexuals. Instead, the Court
overturned Bowers because “[i]ts continuance as precedent
demeans the lives of homosexual persons.” Lawrence, 539
U.S. at 575.
[10] Third, the Lawrence Court’s rationale for its holding—
the inquiry analysis that it was applying—is inconsistent with
WITT v. DEP’T OF THE AIR FORCE 5861
rational basis review. The Court declared: “The Texas statute
furthers no legitimate state interest which can justify its intru-
sion into the personal and private life of the individual.” Id.
at 578 (emphasis added). Were the Court applying rational
basis review, it would not identify a legitimate state interest
to “justify” the particular intrusion of liberty at issue in Law-
rence; regardless of the liberty involved, any hypothetical
rationale for the law would do.
[11] We therefore conclude that Lawrence applied some-
thing more than traditional rational basis review. This leaves
open the question whether the Court applied strict scrutiny,
intermediate scrutiny, or another heightened level of scrutiny.
Substantive due process cases typically apply strict scrutiny in
the case of a fundamental right and rational basis review in all
other cases. When a fundamental right is recognized, substan-
tive due process forbids the infringement of that right “at all,
no matter what process is provided, unless the infringement
is narrowly tailored to serve a compelling state interest.” Reno
v. Flores, 507 U.S. 392, 301-02 (1993) (emphasis omitted).
Few laws survive such scrutiny, and DADT most likely would
not.5 However, we hesitate to apply strict scrutiny when the
Supreme Court did not discuss narrow tailoring or a compel-
ling state interest in Lawrence, and we do not address the
issue here.
[12] Instead, we look to another recent Supreme Court case
that applied a heightened level of scrutiny to a substantive due
process claim—a scrutiny that resembles and expands upon
the analysis performed in Lawrence.6 In Sell v. United States,
5
The rationale for DADT is found at 10 U.S.C. § 654(a)(15), which
states Congress’s finding that:
The presence in the armed forces of persons who demonstrate a
propensity or intent to engage in homosexual acts would create
an unacceptable risk to the high standards of morale, good order
and discipline, and unit cohesion that are the essence of military
capability.
6
Although we agree with the Eleventh Circuit that the Lawrence Court
did not apply strict scrutiny, Lofton, 358 F.3d at 817, in our view, the
5862 WITT v. DEP’T OF THE AIR FORCE
539 U.S. 166, 179 (2003), the Court considered whether the
Constitution permits the government to forcibly administer
antipsychotic drugs to a mentally-ill defendant in order to ren-
der that defendant competent to stand trial. The Court held
that the defendant has a “significant constitutionally protected
liberty interest” at stake, so the drugs could be administered
forcibly “only if the treatment is medically appropriate, is
substantially unlikely to have side effects that may undermine
the fairness of the trial, and, taking account of less intrusive
alternatives, is necessary significantly to further important
governmental trial-related interests.” Id. at 178-80 (internal
quotation marks omitted).
[13] Although the Court’s holding in Sell is specific to the
context of forcibly administering medication, the scrutiny
employed by the Court to reach that holding is instructive. See
Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en
banc) (holding that we are bound by the theory or reasoning
underlying a Supreme Court case, not just by its holding). The
Court recognized a “significant” liberty interest—the interest
“in avoiding the unwanted administration of antipsychotic
drugs”—and balanced that liberty interest against the “legiti-
mate” and “important” state interest “in providing appropriate
medical treatment to reduce the danger that an inmate suffer-
ing from a serious mental disorder represents to himself or oth-
ers.”7 Sell, 539 U.S. at 178 (internal quotation marks omitted).
To balance those two interests, the Court required the state to
justify its intrusion into an individual’s recognized liberty
interest against forcible medication—just as Lawrence deter-
mined that the state had failed to “justify its intrusion into the
Eleventh Circuit failed to appreciate both the liberty interest recognized by
Lawrence and the heightened-scrutiny balancing employed by Lawrence.
7
This inquiry is similar to intermediate scrutiny in equal protection
cases. See Craig v. Boren, 429 U.S. 190, 197 (1976) (“To withstand con-
stitutional challenge, . . . classifications by gender must serve important
governmental objectives and must be substantially related to achievement
of those objectives.”).
WITT v. DEP’T OF THE AIR FORCE 5863
personal and private life of the individual.” Lawrence, 539
U.S. at 578.
The heightened scrutiny applied in Sell consisted of four
factors: First, a court must find that important governmental
interests are at stake. . . .
Courts, however, must consider the facts of the
individual case in evaluating the Government’s inter-
est . . . . Special circumstances may lessen the impor-
tance of that interest. . . .
Second, the court must conclude that involuntary
medication will significantly further those concomi-
tant state interests. . . .
Third, the court must conclude that involuntary
medication is necessary to further those interests.
The court must find that any alternative, less intru-
sive treatments are unlikely to achieve substantially
the same results. . . .
Fourth, . . . the court must conclude that adminis-
tration of the drugs is medically appropriate . . . .
539 U.S. at 180-81. The fourth factor is specific to the medi-
cal context of Sell, but the first three factors apply equally
here. We thus take our direction from the Supreme Court and
adopt the first three heightened-scrutiny Sell factors as the
heightened scrutiny balancing analysis required under Law-
rence. We hold that when the government attempts to intrude
upon the personal and private lives of homosexuals, in a man-
ner that implicates the rights identified in Lawrence, the gov-
ernment must advance an important governmental interest, the
intrusion must significantly further that interest, and the intru-
sion must be necessary to further that interest. In other words,
for the third factor, a less intrusive means must be unlikely to
achieve substantially the government’s interest. See also
5864 WITT v. DEP’T OF THE AIR FORCE
Aptheker v. Sec’y of State, 378 U.S. 500, 508 (1964) (“Even
though the governmental purpose be legitimate and substan-
tial, that purpose cannot be pursued by means that broadly sti-
fle fundamental personal liberties when the end can be more
narrowly achieved.” (internal quotation marks omitted)).
[14] In addition, we hold that this heightened scrutiny anal-
ysis is as-applied rather than facial. “This is the preferred
course of adjudication since it enables courts to avoid making
unnecessarily broad constitutional judgments.” City of Cle-
burne v. Cleburne Living Ctr. Inc., 473 U.S. 432, 447 (1985).
In Cleburne, the Court employed a “type of ‘active’ rational
basis review,” Pruitt, 963 F.2d at 1165-66, in requiring the
city to justify its zoning ordinance as applied to the specific
plaintiffs in that case. And Sell required courts to “consider
the facts of the individual case in evaluating the Govern-
ment’s interest.” 539 U.S. at 180. Under this review, we must
determine not whether DADT has some hypothetical, post-
hoc rationalization in general, but whether a justification
exists for the application of the policy as applied to Major
Witt. This approach is necessary to give meaning to the
Supreme Court’s conclusion that “liberty gives substantial
protection to adult persons in deciding how to conduct their
private lives in matters pertaining to sex.” Lawrence, 539 U.S.
at 572.
We also conclude that our holding in Beller, 632 F.2d 788,
that a predecessor policy to DADT survived heightened scru-
tiny under the Due Process Clause, is no longer good law.8
8
Our observation in High Tech Gays v. Def. Ind. Security Clearance
Office, 895 F.2d 563, 572 (9th Cir. 1990), that “Beller has since been over-
ruled by [Bowers v.] Hardwick,” does not end our Beller inquiry. Bowers
overruled Beller’s invocation of heightened scrutiny. See Bowers, 478
U.S. at 194-95 (rejecting heightened scrutiny for classifications based on
homosexuality); see also High Tech Gays, 895 F.2d at 572 (“Neither Bel-
ler nor Hatheway[ v. Sec’y of Army, 641 F.2d 1376 (9th Cir. 1981),] is
binding authority on us regarding heightened scrutiny for classifications
based on homosexuality.”). But Bowers did not necessarily alter Beller’s
holding that the regulation at issue survived heightened scrutiny.
WITT v. DEP’T OF THE AIR FORCE 5865
In Beller, 632 F.2d at 807 n.19, we applied heightened
scrutiny because “[t]he kind of all-or-nothing substantive due
process approach . . . d[id] not, we think, reflect the complex-
ity of the Court’s [due process] analysis.” We reasoned
that substantive due process scrutiny of a govern-
ment regulation involves a case-by-case balancing of
the nature of the individual interest allegedly
infringed, the importance of the government interests
furthered, the degree of infringement, and the sensi-
tivity of the government entity responsible for the
regulation to more carefully tailored alternative
means of achieving its goals.
Id. at 807. We recognized “that there [wa]s substantial aca-
demic comment which argue[d] that the choice to engage in
homosexual action is a personal decision entitled, at least in
some instances, to recognition as a fundamental right and to
full protection as an aspect of the individual’s right of priva-
cy.” Id. at 809. But we held that “the importance of the gov-
ernment interests furthered . . . outweigh[ed] whatever
heightened solicitude is appropriate for consensual private
homosexual conduct.” Id. at 810.
[15] Although the heightened scrutiny employed in Beller
was prescient of Lawrence, Sell, and the three factors that we
adopt today, in Beller we explicitly declined to perform an as-
applied analysis. We acknowledged that, “[u]nder the analysis
described in our opinion, individual treatment in some cir-
cumstances might be required by substantive due process,
depending on the outcome of the balancing test.” Id. at 808
n.20. But we refused to apply individual treatment because of
“the relative impracticality at th[at] time of achieving the
Government’s goals by regulations which turn more precisely
on the facts of an individual case.” Id. at 810. Beller’s refusal
to perform an as-applied balancing test is clearly irreconcil-
able with the individualized balancing analysis required under
5866 WITT v. DEP’T OF THE AIR FORCE
Cleburne and Sell.9 Beller’s heightened scrutiny analysis and
holding therefore have been effectively overruled by interven-
ing Supreme Court authority.10 See Miller, 335 F.3d at 900(“We hold that the issues decided by the higher court need not
be identical in order to be controlling. Rather, the relevant
court of last resort must have undercut the theory or reasoning
underlying the prior circuit precedent in such a way that the
cases are clearly irreconcilable. . . . In future cases of such
clear irreconcilability, a three-judge panel of this court and
district courts should consider themselves bound by the inter-
vening higher authority and reject the prior opinion of this
court as having been effectively overruled.”).
Here, applying heightened scrutiny to DADT in light of
current Supreme Court precedents, it is clear that the govern-
ment advances an important governmental interest. DADT
9
Beller’s conclusion that individualized determination were “impracti-
cal” 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.”).
10
Other intervening Supreme Court decisions have also weakened the
rationale of Beller. In Pruitt, 963 F.2d at 1165, we noted that “one of the
justifications offered by the Navy in Beller was the tension between
known homosexuals and other members who despise/detest homosexuali-
ty.” (Internal quotation marks omitted.) We held that “[t]his justification
accepted in Beller . . . should not be given unexamined effect today as a
matter of law” because it was inconsistent with the Supreme Court’s deci-
sions in Palmore v. Sidoti, 466 U.S. 429 (1984), and Cleburne, 473 U.S.
432, that “ ‘[p]rivate biases may be outside the reach of the law, but the
law cannot, directly or indirectly, give them effect.’ ” Pruitt, 963 F.2d at
1165 (quoting Palmore, 466 U.S. at 433). However, Pruitt noted that, in
Beller, “we held that there were several grounds on which the regulation
could be upheld,” Pruitt, 963 F.2d at 1164, only one of which was
impacted by Palmore and Cleburne, so Pruitt does not end our inquiry.
WITT v. DEP’T OF THE AIR FORCE 5867
concerns the management of the military, and “judicial defer-
ence to . . . congressional exercise of authority is at its apogee
when legislative action under the congressional authority to
raise and support armies and make rules and regulations for
their governance is challenged.” Rostker v. Goldberg, 453
U.S. 57, 70 (1981). Notably, “deference does not mean abdi-
cation.” Id. “Congress, of course, is subject to the require-
ments of the Due Process Clause when legislating in the area
of military affairs . . . .” Weiss v. United States, 510 U.S. 163,
176 (1994).
[16] However, it is unclear on the record before us whether
DADT, as applied to Major Witt, satisfies the second and
third factors. The Air Force attempts to justify the policy by
relying on congressional findings regarding “unit cohesion”
and the like, but that does not go to whether the application
of DADT specifically to Major Witt significantly furthers the
government’s interest and whether less intrusive means would
achieve substantially the government’s interest.11 Remand
therefore is required for the district court to develop the
record on Major Witt’s substantive due process claim. Only
then can DADT be measured against the appropriate constitu-
tional standard.
IV
[17] We next turn to Major Witt’s Equal Protection Clause
claim. She argues that DADT violates equal protection
because the Air Force has a mandatory rule discharging those
who engage in homosexual activities but not those “whose
presence may also cause discomfort among other service
members,” such as child molesters. However, Philips clearly
11
Indeed, the facts as alleged by Major Witt indicate the contrary. Major
Witt was a model officer whose sexual activities hundreds of miles away
from base did not affect her unit until the military initiated discharge pro-
ceedings under DADT and, even then, it was her suspension pursuant to
DADT, not her homosexuality, that damaged unit cohesion.
5868 WITT v. DEP’T OF THE AIR FORCE
held that DADT does not violate equal protection under ratio-
nal basis review, 106 F.3d at 1424-25, and that holding was
not disturbed by Lawrence, which declined to address equal
protection, see 539 U.S. at 574-75 (declining to reach the
equal protection argument and, instead, addressing “whether
Bowers itself ha[d] continuing validity”). We thus affirm the
district court’s dismissal of Major Witt’s equal protection
claims.
V
The issues posed by this case might generate great concern
both from those who welcome Major Witt’s continued partici-
pation 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.
In light of the foregoing, we VACATE and REMAND the
district court’s judgment with regard to Major Witt’s substan-
tive due process claim and procedural due process claim, and
AFFIRM with regard to the equal protection clause claim.
The parties shall bear their own costs on appeal.
CANBY, Circuit Judge, concurring in part and dissenting in
part:
The majority has written an opinion that is very praisewor-
thy as far as it goes. I concur in Parts I and II. I also concur
in the first portion of Part III, to the end of subdivision (1).
WITT v. DEP’T OF THE AIR FORCE 5869
Beyond that, I agree substantially with the majority’s discus-
sion leading to the conclusion that the Supreme Court in Law-
rence v. Texas, 539 U.S. 558 (2003), applied something more
rigorous than traditional rational basis review in striking down
Texas’s criminalization of sexual relations between members
of the same sex. Finally, I agree that the district court erred
in dismissing the complaint for failure to state a substantive
due process claim, and that we must remand for further pro-
ceedings. Unlike the majority, however, I would also reverse
the dismissal of the equal protection claim. But where I differ
most from the majority is in the level of scrutiny to be applied
to both claims. In my view, the so-called “Don’t Ask, Don’t
Tell” statute,1 10 U.S.C. § 654, must be subjected to strict
scrutiny. Under that standard, the Air Force must demonstrate
that the statute’s restriction of liberty, and its adverse classifi-
cation of homosexuals, are “narrowly tailored to serve a com-
pelling state interest.” Reno v. Flores, 507 U.S. 292, 301-02
(1993).
Substantive Due Process
As the majority opinion correctly recognizes, the Supreme
Court’s opinion in Lawrence never unambiguously states
what standard of review it is applying. The Lawrence opinion
leaves no doubt at all, however, about the importance of the
right it is protecting. In discussing the flaws of Bowers v.
Hardwick, 478 U.S. 186 (1986), which it was overruling,
Lawrence explained:
To say that the issue in Bowers was simply the right
to engage in certain sexual conduct demeans the
claim the individual put forward, just as it would
demean a married couple were it to be said marriage
is simply about the right to have sexual intercourse.
1
Under the facts alleged in the complaint, the statute’s popular name
appears to be a misnomer as applied to Major Witt. She did not tell, but
the Air Force asked.
5870 WITT v. DEP’T OF THE AIR FORCE
The laws involved in Bowers and here are, to be
sure, statutes that purport to do no more than prohibit
a particular sexual act. Their penalties and purposes,
though, have more far-reaching consequences,
touching upon the most private human conduct, sex-
ual behavior, and in the most private of places, the
home. The statutes do seek to control a personal
relationship that, whether or not entitled to formal
recognition in the law, is within the liberty of per-
sons to choose without being punished as criminals.
This, as a general rule, should counsel against
attempts by the State, or a court, to define the mean-
ing of the relationship or to set its boundaries absent
injury to a person or abuse of an institution the law
protects. It suffices for us to acknowledge that adults
may choose to enter upon this relationship in the
confines of their homes and their own private lives
and still retain their dignity as free persons. When
sexuality finds overt expression in intimate conduct
with another person, the conduct can be but one ele-
ment in a personal bond that is more enduring. The
liberty protected by the Constitution allows homo-
sexual persons the right to make this choice.
Lawrence, 539 U.S. at 567 (emphases added). Two points
shine forth from this passage and its context in Lawrence:
first, the right to choose to engage in private, consensual sex-
ual relations with another adult is a human right of the first
order and, second, that right is firmly protected by the sub-
stantive guarantee of privacy—autonomy of the Due Process
Clause. Thus, even though the Court did not expressly charac-
terize the right as “fundamental,” it certainly treated it as
such. It is this treatment, and the important individual values
of liberty it recognizes, that require strict scrutiny of govern-
mental encroachment on that right. In my view, therefore,
Lawrence itself mandates strict scrutiny of the “Don’t Ask,
Don’t Tell” statute.
WITT v. DEP’T OF THE AIR FORCE 5871
In order to apply strict scrutiny, however, we do not need
to satisfy ourselves that Lawrence commands or expressly
adopts that standard of review. We are not reviewing a state
criminal conviction, where we are forbidden by the Antiterro-
rism and Effective Death Penalty Act from applying a consti-
tutional standard unless it has been determined by the
Supreme Court. See 28 U.S.C. § 2254(d)(1). In the present
context, it is enough that the question is an open one. As the
majority opinion recognizes, Lawrence avoids (carefully, it
seems) stating what standard of review the Court was apply-
ing. Certainly nothing in Lawrence can reasonably be read as
forbidding the application of strict scrutiny to statutes attach-
ing severe consequences to homosexual behavior.2 The ques-
tion of the standard of scrutiny in this case is therefore an
open one, and we must address it according to our best under-
standing of the individual constitutional rights and govern-
mental action involved.3 For reasons that should already be
apparent from my quotation and discussion of Lawrence, I
have no difficulty concluding that the right to engage in
homosexual relationships and related private sexual conduct
is a personal right of a high constitutional order, and that the
“Don’t Ask, Don’t Tell” statute so penalizes that relationship
and conduct that it must be subjected to strict scrutiny.
2
In that regard, Lawrence is to be contrasted with cases of gender dis-
crimination, where the Supreme Court has expressly specified an interme-
diate standard of review. See Craig v. Boren, 429 U.S. 190, 197 (1976).
3
For reasons explained in the following section on equal protection, I do
not regard our earlier precedents applying lesser standards of scrutiny to
military discrimination against homosexuals as binding after Lawrence.
See, e.g., Beller v. Middendorf, 632 F.2d 788, 812 (9th Cir. 1980) (uphold-
ing Navy policy of discharging homosexuals even though regulation is
“perhaps broader than necessary”); Holmes v. Cal. Army Nat’l Guard, 124
F.3d 1126, 1132-36 (9th Cir. 1997) (upholding “Don’t Ask, Don’t Tell”
policy under equal protection rational basis review); Philips v. Perry, 106
F.3d 1420, 1425-29 (9th Cir. 1997) (same).
5872 WITT v. DEP’T OF THE AIR FORCE
Equal Protection
Major Witt presented an equal protection claim to the dis-
trict court, but acknowledges here that such a claim was
rejected by our court in Philips v. Perry, 106 F.3d 1420 (9th
Cir. 1997). Although she does not pursue it before our three-
judge panel, she does preserve her right to assert the claim in
the event she seeks en banc review of our decision; she has
not abandoned the claim.4
I do not believe that Philips ties our hands. Philips applied
rational basis review to an equal protection attack on the
“Don’t Ask, Don’t Tell” policy of the Navy. It did so on the
authority of our earlier decision in High Tech Gays v. Defense
Industrial Security Clearance Office, 895 F.2d 563 (9th Cir.
1990). See Philips, 106 F.3d at 1425. High Tech Gays, how-
ever, was based on the proposition that it would be inappro-
priate to apply strict scrutiny to classifications targeting
homosexuals when the Supreme Court had held in Bowers
that homosexual conduct could be made a crime. See High
Tech Gays, 895 F.2d at 571 (“[I]f there is no fundamental
right to engage in homosexual sodomy . . . see [Bowers v.]
Hardwick, . . . it would be incongruous . . . to find a funda-
mental right of homosexual conduct under the equal protec-
tion component of the Due Process Clause of the Fifth
Amendment.”). Because Lawrence unequivocally overruled
Bowers, it “undercut the theory [and] reasoning underlying”
High Tech Gays and Philips “in such a way that the cases are
4
Major Witt does urge upon us a different kind of equal protection
claim. She contends that the Air Force violates equal protection because
it requires automatic discharge of sexually active homosexuals on the
ground that they are offensive to some members of a military unit, while
others equally offensive, such as child molesters, are not categorically sub-
ject to discharge. See AFI 36-3209, ¶ 2.29.10. Like the majority, I find it
unnecessary to address this argument. I also conclude that it would accom-
plish too little to establish that persons availing themselves of their consti-
tutional right to intimate homosexual relations should be treated at least
as well as child molesters.
WITT v. DEP’T OF THE AIR FORCE 5873
clearly irreconcilable.” Miller v. Gammie, 335 F.3d 889, 900
(9th Cir. 2003) (en banc). I am therefore convinced that Phil-
ips is no longer controlling.5
An equal protection analysis applying strict scrutiny to the
“Don’t Ask, Don’t Tell statute is accordingly open to us.
There are two different approaches to strict scrutiny under
equal protection analysis, and both should be followed in this
case.
The most direct path to strict scrutiny of the statute under
the equal protection principle is to hold that classifications
discriminating against homosexuals are “suspect,” like classi-
fications based on race. See Loving v. Virginia, 388 U.S. 1, 11
(1967) (subjecting race-based miscegenation statute to strict
scrutiny under the Equal Protection Clause). I have long been
convinced that classifications against homosexuals are suspect
in the equal protection sense, but I was unable to persuade a
majority of my colleagues to embark on en banc review to
establish that proposition. See High Tech Gays v. Defense
Industrial Security Clearance Office, 909 F.2d at 376-80
(1990) (Canby, J., dissenting from denial of rehearing en
banc). As I have already explained, however, the overruling
of Bowers by Lawrence has undermined High Tech Gays. We
accordingly are free to revisit the question whether the
adverse classification of homosexuals is “suspect” under
equal protection analysis. My reasons for concluding that
such classifications are suspect are fully set out in my dissent
from denial of en banc review in High Tech Gays, and I will
not belabor the matter here. Suffice it to say that homosexuals
have “experienced a history of purposeful unequal treatment
[and] been subjected to unique disabilities on the basis of ste-
5
In Holmes v. Cal. Army Nat’l Guard, 124 F.3d 1126, 1132 (9th Cir.
1997), we also applied rational basis review to reject an equal protection
challenge to a component of the “Don’t Ask, Don’t Tell” policy, relying
on Philips and High Tech Gays. For the reasons just discussed, Law-
rence’s overruling of Bowers undermines Holmes as well.
5874 WITT v. DEP’T OF THE AIR FORCE
reotyped characteristics not truly indicative of their abilities.”
Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 313 (1976) (inter-
nal quotation marks omitted). They also “exhibit obvious,
immutable, or distinguishing characteristics that define them
as a discrete group; and they are [ ] a minority.” Lyng v. Cas-
tillo, 477 U.S. 635, 638 (1986). In short, they are a group
deserving of protection against the prejudices and power of an
often-antagonistic majority.
The Supreme Court’s decision in Romer v. Evans, 517 U.S.
620 (1996), is not a barrier to a suspect classification, strict
scrutiny approach. In that case, the Court struck down a Colo-
rado constitutional provision prohibiting, among other things,
any anti-discrimination legislation protecting homosexuals.
Id. at 623-24. The Supreme Court noted that most laws
involve a classification and that, if no fundamental right or
suspect class is involved, statutes are subject only to rational
basis review. Id. at 631. The Court then stated that the Colo-
rado provision
fails, indeed defies, even this conventional inquiry.
First, the amendment has the peculiar property of
imposing a broad and undifferentiated disability on
a single named group, an exceptional and, as we
shall explain, invalid form of legislation.
Id. at 632 (emphasis added). Thus the Court had no need to
address whether homosexuals constituted a suspect class
because the Colorado provision failed “even” rational basis
review. That ruling does not negate the application of higher
levels of scrutiny on similar classifications. Indeed, the strong
language of Romer suggests that the invidiousness of the leg-
islation would have supported any standard of review as a
path to its invalidation. Romer, like Lawrence, does not forbid
the application of strict scrutiny, even though it may have
found that level of scrutiny unnecessary to invalidate the leg-
islation before the Court in that case.
WITT v. DEP’T OF THE AIR FORCE 5875
In addition to the avenue of a suspect classification, there
is another path to strict scrutiny under equal protection analy-
sis. Classifications that impinge on a fundamental right are
subject to strict scrutiny when challenged as a violation of
equal protection. See, e.g., Dunn v. Blumstein, 405 U.S. 330,
337-39 (1972). As I have already explained, Lawrence effec-
tively establishes a fundamental right without so labeling it.
At the very least, Lawrence leaves the question open, to per-
mit us to recognize the fundamental right to homosexual rela-
tions as I have already insisted we must. Even though that
right justifies strict scrutiny under a theory of substantive due
process, there are good reasons for adding an equal protection
analysis in this case. It is true that, in Lawrence, the Supreme
Court elected not to employ an equal protection theory. 539
U.S. at 574-75. It recognized, however, that equal protection
provided a “tenable” basis for declaring the statute invalid,
and conceded that a decision recognizing a liberty interest in
certain conduct advanced the cause of equality as well as due
process. Id. at 575. The reason why the Court in Lawrence did
not employ an equal protection analysis was itself protective.
The Court stated that it would not sufficiently establish the
right to intimate homosexual relations if only equal protection
were invoked, because a state might frustrate the right by
denying heterosexuals as well as homosexuals the right to
non-marital sexual relations. See id.
The danger of an end-run remedy of equal treatment is not
severe in our case, however. I doubt that the armed services
are likely to respond to an invalidation of the “Don’t Ask,
Don’t Tell” statute as a violation of equal protection by
decreeing the automatic discharge of any member, heterosex-
ual or homosexual, who is found to have engaged in sexual
relations outside of marriage. In any event, we can guard
against any such result by retaining our substantive due pro-
cess analysis along with an equal protection approach.
The reason for including an equal protection analysis is that
there is a very clear element of discrimination in the whole
5876 WITT v. DEP’T OF THE AIR FORCE
“Don’t Ask, Don’t Tell” apparatus, and an equal protection
analysis focuses the inquiry sharply on a question that should
not be ignored: what compelling interest of the Air Force is
narrowly served by discharging homosexuals but not others
who engage in sexual relations privately off duty, off base,
and with persons unconnected to the military? It is no answer
to such a question that the known presence of a sexually
active homosexual in a military unit necessarily creates sexual
tensions (if indeed that could be shown), unless it were also
demonstrated that the presence of heterosexuals in a military
unit created no comparable tensions. It is also not a sufficient
answer that many military personnel are biased against homo-
sexuals. See Pruitt v. Cheney, 963 F.2d 1160, 1165 (9th Cir.
1992); see also Palmore v. Sidoti, 466 U.S. 429, 433 (1984)
(“The Constitution cannot control such prejudices but neither
can it tolerate them. Private biases may be outside the reach
of the law, but the law cannot, directly or indirectly, give
them effect.”); Romer, 517 U.S. at 634-35. There are other
requirements of narrow tailoring that would apply during fur-
ther proceedings applying strict scrutiny, but the point now is
that part of the inquiry should address the clear discrimination
between homosexuals and heterosexuals, and determine
whether that discrimination is necessary to serve a compelling
governmental interest and sweeps no more broadly than nec-
essary.
Order of Inquiry in Further Proceedings
The inquiry on remand should focus first on the Air Force’s
justification for its impingement on the right to private inti-
mate sexual relations and the compelling nature of any inter-
est that is served by that measure. The Air Force should be
required to identify a compelling interest with sufficient spec-
ificity so that the relation between the “Don’t Ask, Don’t
Tell” statute and that policy can be evaluated. It is difficult to
accomplish that goal if the compelling interest is as broadly
stated as “management of the military” or, say, “winning
wars.” Moreover, under strict scrutiny, it is not enough that
WITT v. DEP’T OF THE AIR FORCE 5877
the interest be merely “served” by the challenged legislation;
the legislation must be necessary to that purpose, and must
sweep no more broadly than is essential to serve the govern-
mental purpose. See Dunn, 405 U.S at 345-46, 351-52.
Thus, as a matter of due process, the Air Force can be
required to show why there is a compelling need to discharge
homosexuals who have been sexually active outside of their
duty station with persons unconnected to the military and why
the measure it has adopted is narrowly tailored to the satisfac-
tion of that compelling need. As a matter of equal protection,
the Air Force can be asked to show what compelling need is
narrowly served by treating homosexuals who are sexually
active off duty and outside the military context differently
from heterosexuals who are sexually active off duty and out-
side the military context. These requirements are case-specific
in that they reflect the alleged facts that Major Witt conducted
all of her relations with her female partner off-base, and her
partner was alleged not to be in or employed by the military.
If the Air Force cannot meet these requirements, the statute
must be invalidated in such applications.
There are clear advantages to addressing the Air Force’s
justifications first, before any inquiry into the personal char-
acteristics and situation of Major Witt in her unit. First,
requiring the Air Force to make the requisite showing as a
threshold matter may end the case.
Second, the inquiry directed toward the Air Force is less
potentially disruptive than a focus on Major Witt herself and,
particularly, the allegedly favorable attitude toward her on the
part of other members of her unit. To require unit members
to testify or submit affidavits concerning the degree to which
they do or do not consider themselves adversely affected by
the presence of a known, sexually active homosexual, may
5878 WITT v. DEP’T OF THE AIR FORCE
constitute a distraction from regular duties. It is better to
employ such an inquiry only as a last resort.6
Finally, requiring the Air Force to justify the application of
the statute to a generic service member who carries on a
homosexual relationship and intimate conduct away from the
duty station and its personnel provides more protection of the
constitutional right set forth in Lawrence. Because the right to
choose to engage in private, intimate sexual conduct is a con-
stitutional right of a high order, it must be protected not just
for the outstanding service member like Major Witt, but also
for the run-of-the-mill airman or soldier. It is thus the general
application of the statute to the generic service member that
the Air Force must be required to justify. In Lawrence, after
all, the Supreme Court struck down the statute as applied to
anyone engaging in homosexual conduct; it did not find it
necessary or relevant to inquire into whether the individual
conduct of which the petitioners had been convicted was more
or less offensive to the interests of the State under the circum-
stances of its occurrence.
Conclusion
The majority opinion represents a conscientious effort to
reach a just result in this case, and I agree with much of its
analysis. I conclude, however, that the Air Force must demon-
6
For this reason, even if I were to accept the majority’s standard of scru-
tiny, I would modify its remand instructions now directed to determining
whether “the application of DADT specifically to Major Witt significantly
furthers the government’s interest . . . .” Supra p. 5867. Further proceed-
ings should begin by requiring the Air Force to show what important gov-
ernmental interest is significantly furthered by the statute. The only facts
concerning Major Witt that need to be developed at that point are that her
homosexual relationship was carried on off-duty, away from military
premises, with a person unconnected to the military. The Air Force must
then demonstrate why it is necessary to apply the statute to a service mem-
ber in those circumstances. Further details of Major Witt’s individual cir-
cumstances would best be left to the end, and may be unnecessary.
WITT v. DEP’T OF THE AIR FORCE 5879
strate that the “Don’t Ask, Don’t Tell” statute meets the
requirements of strict scrutiny—that it is necessary to serve a
compelling governmental interest and that it sweeps no more
broadly than necessary. I also conclude that the Air Force
must be required to do so for purposes of both substantive due
process and equal protection. I therefore respectfully dissent
in part from the majority opinion.