Wednesday, May 21, 2008

"Don't Ask Don't Tell" --Not Long for the World

It's just a matter of time now.

The Ninth Circuit ruled this morning that "Don't Ask, Don't Tell" should be subject to heightened judicial scrutiny (PDF). The ruling was 2-1 (but the 1 concurred in part and dissented only because the majority did not go far enough). This is kind of a big deal.

Usually, the courts easily dismiss challenges to DADT on the theory that the policy doesn't implicate any fundamental rights and so is subject only to rational basis review. That is, so long as the government can provide a rational reason (even if it is the most spurious cover for its true aim), the law will be upheld.


But now the Ninth, relying on Lawrence v. Texas (BTW, for a good time ask Drew how much he loves Lawrence) has found that DADT burdens a "fundamental" constitutional right to engage in private, consensual sexual relations with another adult. Because it burdens a fundamental right, the Ninth says it must pass more exacting scrutiny than rational basis review. Some judicial contortions ensue and though the court doesn't extend strict scrutiny (the heighest level of scrutiny) to homosexuals, it settles on "heightened review."


DADT was in place before Lawrence, of course, but that's irrelevant.

Looks like this bomb will drop about 6 years from now, more or less. Should be interesting how the C-in-C handles it, no?

HT: Ace

1 comment:

Dan said...

Just remember that is the 9th Circuit, where liberals run amok and try and destroy the American way of life. They'll be overturned.